White v. Lewis

OPINION

LEVI RAY HAIRE, Judge.

The trial court granted summary judgment for Defendants-Appellees, Sam Lewis and the Arizona Department of Corrections (collectively, the Department), on the complaint filed by Plaintiff-Appellant, Steven Rande White. White was an inmate at the State Prison in Florence, Arizona. White claimed that, as a result of the Department’s indigence policy, he was denied his constitutional rights of access to the courts, access to his family and friends, and access to sanitary supplies. The trial court granted the Department’s motion for summary judgment after White failed to appropriately respond to the Department’s motion.

BACKGROUND

White objects to the Department’s indigence policy which provides that an inmate is eligible for indigence status only if his prison account contains less than $12 for the thirty days preceding the inmate’s application. According to White, an indigent inmate need not pay for the following supplies:

(1) soap, shampoo, deodorant, laundry soap, bath soap, toothpaste, toothbrush, comb, razors, and cleaning supplies;
(2) postage for three pieces of non-legal mail per week;
(3) unlimited photocopies of legal documents and copies of applicable rules of court;
(4) postage for all legal correspondence; and
(5) envelopes and paper.

However, a non-indigent inmate must pay for his own supplies.

In February 1988 White filed a verified complaint against the Department. White sought a declaratory judgment that the Department’s indigence policy violated his constitutional rights and sought $123,000 in damages. With respect to his claim of denial of access to the courts, White alleged in his complaint that on January 12, 1988, he was advised that he would no longer be allowed to receive photocopies or envelopes for his legal correspondence. White claimed that, as a result, he was forced to settle a civil rights case against the Sheriff of Pinal County for a substantially lower amount than he otherwise would have. White claimed that he had been denied his fourteenth amendment right of due process because the indigence policy impeded his ability to prosecute that case. White also stated that he had several other cases pending in state and federal courts.

With respect to his claim of denial of access to his family and friends, White explained in his complaint that he could not afford to purchase the stamps, envelopes, and paper required to correspond with them. White claimed that he had been denied his first amendment right to communicate with his family and friends because the Department’s policy allowed the Department to take money from his prison account to pay for his photocopying and his postage for legal documents, leaving him no money for correspondence with his family and friends.

White also complained of an alleged denial of sanitary supplies. He stated in his complaint that he was unable to purchase laundry and bath soap, a comb, toothpaste, or a razor. He claimed that the alleged denial violated his eighth amendment right not to be subject to cruel and unusual punishment because he was unable to keep himself clean. He also claimed that because he did not receive the laundry detergent and clothes washing services that inmates in other prisons received, he had been denied equal protection of the law guaranteed by the fourteenth amendment.

On June 28, 1988, the Department filed a motion for summary judgment. With respect to White’s claim that he was forced to settle another lawsuit on January 12, 1988, because he was denied photocopies, *78the Department attached the affidavit of Anita Reel, a correctional services officer. Reel explained that White became ineligible for indigence status on November 5, 1987, and that he had not reapplied for indigence status when he again became eligible. She attached and summarized the library log, which indicated that White had received hundreds of photocopies, regardless of his ability to pay, from October 1987 through January 1988. For example, from January 3 to January 19, 1988, White received 832 pages of photocopying. Reel explained that White’s photocopying privileges were suspended for two days on January 12, 1988, because he was suspected of photocopying legal material for other inmates. Reel attached copies of incident reports alleging that White had photocopied other inmates’ material and attached copies of some of the other inmates’ material copied by White. The Department also argued that, even if White had received insufficient photocopying, he could have used carbon paper. Reel stated that, regardless of whether White was indigent, he was always given legal supplies including typing and pleading paper, carbon paper, pens, clips, a typewriter, and a typewriter ribbon. With respect to White’s claim that he was denied access to family and friends, the Department argued that inmates have no constitutional right to free non-legal mail regardless of indigence. See Kaestel v. Lockhart, 746 F.2d 1323, 1325 (8th Cir.1984). The Department argued that White chose to spend his money on his litigation, not on his family and friends.

With respect to White’s claim that he was denied sanitary supplies, the Department attached the affidavit of Gary Busk, another correctional services officer. Busk stated and attached indigent supply lists indicating that White received sanitary supplies on three occasions in October and November, 1987, regardless of whether he was indigent.

On June 23, 1988, Jerry Conn, an inmate legal assistant helping White, wrote a letter to the trial court. He explained to the court that he had prepared non-uniform interrogatories, a request for production of documents, and a request for admissions to be served on the Department in this case, but that White could not afford to copy or mail those documents. He requested the trial court to order the Department to assure them that White could properly litigate his case.

On July 18, 1988, White moved for a twenty-day extension of time to file his response to the Department’s motion for summary judgment. He explained that on July 8 he had been placed in detention and that his legal assistant, Conn, had arranged to see him on July 11 but needed additional time to prepare his response. The trial court granted an extension until August 2, 1988, for the filing of White’s response to the Department’s motion for summary judgment.

On July 21, 1988, Conn again wrote to the trial court. He stated that the Department had placed White in detention in order to punish him for litigating this case and that the Department had attempted to sabotage this case by forcing White to switch to legal assistants who were unfamiliar with it.

On July 27,1988, White also wrote to the trial court. He advised the court that he had now been released from detention, but that Conn was no longer authorized to help him. He urged that he needed Conn’s help in order to respond to the Department’s motion for summary judgment. In explaining why he had been placed in detention, he noted that copies of certain “incident reports” had been attached to the Department’s statement of facts concerning its motion for summary judgment. One of these incident reports stated that another identified inmate had notified the Department that White had copied other inmates’ legal work. White admitted that on July 7, 1988, he and Conn approached this inmate with their copy of that incident report. He stated that they merely wanted “to afford the inmate the opportunity to challenge the factualness of the report with respect to his alleged actions.” He advised the court that on the next day he was placed in detention.

*79White also notified the trial court that on August 3, 1988, he had served upon the Department non-uniform interrogatories, a request for admissions, and a request for production of documents.

The trial court treated White’s July 27, 1988, letter as a motion claiming interference with legal process, and requested that the Department respond to White’s motion. Again, the court extended the time for the filing of White’s response to the Department’s motion for summary judgment.

In response to White’s letter, the Department advised the trial court that White had been placed in detention based on the Department’s conclusion that White and Conn were attempting to intimidate the inmate named in the incident report. The Department took the position that White was not entitled to the help of a particular legal assistant such as Conn. Based on the discovery documents White had just served on the Department, the Department concluded that “[i]t is obvious from this documentation that either plaintiff can litigate adequately for himself or he, at this point, has a new inmate assistant or he is still being aided by Mr. Conn.”

On August 17, 1988, White again wrote to the trial court. White explained that he had filed those discovery documents before he was placed in detention. White requested that if the trial court determined that Conn need not assist him, then the trial court should appoint counsel for him.

On September 7, 1985, the trial court concluded that the Department’s decision to provide White with a different legal assistant did not interfere with White’s legal process:

The issue mainly comes down to whether Plaintiff has a right to the assistance of a particular person previously assigned to him as a writ writer in connection with the present proceedings. The Court does not find from the information that has been provided to the Court that there has been any inference [sic] with any recognized legal right or process by Defendant’s decision to provide Plaintiff with a different legal assistant.

The trial court again extended the time for the filing of White’s response to the Department’s motion for summary judgement, this time to September 25, 1988.

On September 6, 1988, White wrote to the trial court, stating that although he was then approved for indigence status, the new security officer refused to provide him with photocopying. White requested that the trial court correct this problem.

On September 12, 1988, White again wrote to the trial court advising that by September 16 he would have earned $12, and that he would be ineligible for indigence status and would no longer be provided with postage, photocopying, or sanitary supplies. He also stated that he had a deficit of over $90 for past legal obligations and that his money would be withheld until that deficit was paid. He requested a telephonic hearing with the warden so that the warden could explain how White could obtain legal assistance for his case.

On September 23, 1988, the trial court again reminded White that he had to respond to the Department’s motion for summary judgment by September 25, 1988. However, no response was filed. Thereafter, on October 12, 1988, the trial court granted the Department’s motion for summary judgment:

Defendant’s Motion for Summary Judgment has come on for ruling. The Court has received no Response to the Motion for Summary Judgment after having granted several extensions of time for filing a Response, the last being on September 7, 1988. In reviewing the Motion for Summary Judgment, the Court finds that the Motion addresses each of the issues raised by Plaintiff and that the record, at the present time, shows that there are no material issues of fact in dispute and that Defendant is entitled to Judgment as a matter of law.

On October 18, 1988, White wrote to the trial court requesting that the trial court reconsider its order granting the Department summary judgment or, in the alternative, that his letter be considered as his notice of appeal. White stated that he was not merely being denied the help of Conn, *80he was being denied the help of any legal assistant. He asserted that he had submitted several requests for the appointment of a legal assistant and had received no response. White objected that because he did not have any legal assistant, he could not create a record sufficient to overcome the Department’s motion for summary judgment. He noted that his claim was not frivolous because the United States District Court in Gluth v. Arizona Department of Corrections, No. 84-1626 PHX CAM, had found that the indigence policy “forced inmates to choose between purchasing essential hygienic supplies and essential legal supplies.”

In response to White’s motion for reconsideration, the Department argued that indigent inmates were guaranteed access to the courts either through legal assistance or through an adequate law library. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72, 83 (1977).

On October 25, 1988, the trial court denied White’s motion for reconsideration:

In reviewing the file in this matter, the Court notes that it granted extensions of time to file a Response to the Motion for Summary Judgment on July 20, 1988, August 11, 1988, and on September 7, 1988. Thereafter no Response was filed; no further extensions were requested. In the interim, this Court has received numerous items of correspondence from Mr. White which indicates that he is articulate and, apparently, able to make appropriate use of legal authority as he has done in citing case law in his latest letter and petition to this Court.

DISCUSSION

The trial court granted summary judgment because it found that the Department’s motion for summary judgment addressed each of White’s claims and that White had failed to respond to the Department’s motion.

White argues that he raised several issues of material fact in his verified complaint. He explains that we must examine the entire record, including his complaint, in reviewing the summary judgment. See Ferree v. City of Yuma, 124 Ariz. 225, 226, 603 P.2d 117, 118 (App.1979).

In light of the volume and complexity of modern litigation, we consider the cases requiring a trial court or an appellate court to search the entire record in connection with a motion for summary judgment to be contrary to modern authority. It is the attorney’s responsibility to search the record:

It is also the policy of the court that neither we, the trial court, nor the court of appeals should be required to perform counsel’s work by searching the record to attempt to discover facts which establish or defeat the motion [for summary judgment]. These are tasks which must be left to counsel.

Mast v. Standard Oil Co. of Cal., 140 Ariz. 1, 2, 680 P.2d 137, 138 (1984). As explained in Rule IV(b) of the Uniform Rules of Practice of the Superior Court of Arizona, “if the opposing party does not serve and file the required answering memorandum, ... such non-compliance may be deemed a consent to the ... granting of the motion, and the court may dispose of the motion summarily.”

White argues that he was not able to search the record and to respond the Department’s motion for summary judgment because he was denied Conn’s assistance. In the alternative White states that he was not able to respond because he was denied the help of any legal assistant. White argues that this alleged denial deprived him of access to the trial court.

The right of access to the courts requires the Department to provide inmates with adequate law libraries or adequate assistance from persons trained in the law. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72, 83 (1977) (habeas corpus proceeding); Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935, 963-64 (1974) (civil rights proceeding); Knight v. Superior Court, 161 Ariz. 551, 779 P.2d 1290 (App.1989) (the paging system used at the Madison Street Jail Law Library was a constitutionally permissible alternative to *81direct access to the library provided a paralegal assisted the inmate). In the absence of an alternative, the Department must permit legal assistance among inmates. See Johnson v. Avery, 393 U.S. 483, 489-90, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 723-24 (1969). However, the Department may impose reasonable restrictions “upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief.” Id. at 490, 89 S.Ct. at 751, 21 L.Ed.2d at 724.

Here, White does not argue that he was denied physical access to an adequate legal library. Accordingly, the trial court concluded that the Department’s decision to deny Wftiite the assistance of Conn and to provide White with a different legal assistant did not deprive White of access to the courts.

We agree with the trial court that an inmate does not have the right to any particular legal assistant. See Gometz v. Henman, 807 F.2d 113, 116 (7th Cir.1986) (“[the legal assistant] does not offer us any reason to believe that he is the only prisoner in the federal system who can satisfy [the inmate’s] legal needs; we cannot imagine why [the legal assistant] would be.”); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981).

White argues in the alternative that he was denied the help of any legal assistant, not just Conn. On appeal the Department asserts that White was offered the help of other legal assistants. White did assert in his October 18, 1988, letter that he was denied the help of any legal assistant.

In response to White’s October 18, 1988, letter, the trial court concluded that White was articulate and able to make appropriate use of legal authority. As we have previously noted, adequate library facilities were available to White. Neither party cites any decisions concerning whether an inmate is, in fact, denied access to the courts when the record demonstrates that he is articulate and able to make appropriate use of legal authorities available to him.

We note that other courts have held that an inmate’s participation in litigation demonstrated that the inmate had not, in fact, been denied access to the courts. See, e.g., Conway v. Oliver, 429 F.2d 1307, 1308 (9th Cir.1970) (“1) During, and immediately subsequent to, the time plaintiff alleges he was deprived of reasonable access to the courts the District Court of Appeals for the First District of California received one brief and two written motions from plaintiff; 2) During the time plaintiff alleges that he was deprived of reasonable access to the courts the Supreme Court of the United States received a petition for a writ of habeas corpus as well as a 70 page, well documented, petition for writ of certiorari; and 3) Within the last 3 years, plaintiff has filed three suits in this Court coupled with numerous papers and motions pertaining thereto.”); Bryant v. Craven, 415 F.2d 775, 776 (9th Cir.1969) (“the extensive briefs filed by appellant in this proceeding, and the voluminous citations contained therein demonstrate no such denial [of access to the courts]”). See generally, Annotation, Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Interference With Access to Courts, 23 A.L.R.Fed. 6, § 5 (1975).

The trial court concluded that White’s letters to the trial court demonstrated that he was articulate and able to make appropriate use of legal authority. On the record submitted to us, we cannot say that the trial court abused its discretion in arriving at that conclusion.

CONCLUSION

Because White could have responded to the Department’s motion for summary judgment, the trial court did not err in holding that he was not denied access to the trial court. On the facts appropriately presented to the trial court, its decision was clearly correct. As previously noted, although given several opportunities to do so, White did not file any affidavits controverting the Department’s statement of facts. We further note that, with the possible exception of the claim that he was denied the assistance of not only Conn, but *82of any other inmate, White has not even argued that the actual facts presented by the Department are not true. Thus, White’s objection to the granting of the Department’s motion for summary judgment was not only procedurally defective, but was also without merit substantively. Under the Supreme Court’s decision in Bounds, supra, an inmate is not entitled to receive assistance from an inmate legal advisor if the inmate is given access to an adequate legal library. Therefore, if we assume, contrary to the Department’s position, that White was denied assistance from any inmate legal advisor, the trial court’s decision was nevertheless correct.

For the reasons stated in this decision, the judgment entered by the trial court is affirmed.

JACOBSON, P.J., concurs.

Note: Retired Judge LEVI RAY HAIRE was authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to Ariz. Const, art. 6, § 20, and A.R.S. § 38-813.