The Basics: Prisoners have a fundamental right to access and use the court system.

Just like people on the outside, prisoners have a fundamental constitutional right to use the court system. This right is based on the First, Fifth and Fourteenth Amendments to the Constitution. Under the First Amendment, you have the right to “petition the government for a redress of grievances,” and under the Fifth and Fourteenth Amendments, you have a right to “due process of law.” Put together, these provisions mean that you must have the opportunity to go to court if you think your rights have been violated. This right is referred to as the “right of access to the courts.” Unfortunately, doing legal work in prison can be dangerous, as well as difficult, so it is important to KNOW YOUR RIGHTS!

A terrible but common consequence of prisoner activism is harassment by prison officials. Officials have been known to block the preparation and filing of lawsuits, refuse to mail legal papers, take away legal research materials, and deny access to law books, all in an attempt to stop the public and the courts from learning about prisoner issues and complaints. Officials in these situations are worried about any actions that threaten to change conditions within the prison walls or limit their power. In particular, officials may seek to punish those who have gained legal skills and try to help their fellow prisoners with legal matters. Prisoners with legal skills can be particularly threatening to prison management who would like to limit the education and political training of prisoners. Some jailhouse lawyers report that officials have taken away their possessions, put them in solitary confinement on false charges, denied them parole, or transferred them to other facilities where they were no longer able to communicate with the prisoners they had been helping.

With this in mind, it is very important for those of you who are interested in both legal and political activism to keep in contact with people in the outside world. One way to do this is by making contact with people and organizations in the outside community who do prisoners’ rights or other civil rights work. You can also try to find and contact reporters who may be sensitive to, and interested in, prison issues. These can include print newspapers and newsletters, broadcast television and radio shows, and online sites. It is always possible that organizing from the outside aimed at the correct pressure points within prison management can have a dramatic effect on conditions for you on the inside.

Certain court decisions that have established standards for prisoner legal rights can be powerful weapons in your activism efforts. These decisions can act as strong evidence to persuade others that your complaints are legitimate and reasonable, and most of all, can win in a court of law. It is sometimes possible to use favorable court rulings to support your position in non-legal challenges, such as negotiations with prison officials or in administrative requests for protective orders, as well as providing a basis for a lawsuit when other methods may not achieve your desired goals.

The Supreme Court established that prisoners have a fundamental right to access the courts in a series of important cases, including Ex parte Hull, 312 U.S. 546 (1941), Johnson v. Avery, 383 U.S. 483 (1969), and Bounds v. Smith, 430 U.S. 817 (1977). This right allows you to file a Section 1983 or Bivens claim, habeas petitions, or to work on your criminal case. The right is so fundamental that it requires a prison to fund a way for you to have meaningful access to the court. Prisons can do this in different ways. They can give you access to a decent law library OR they can hire people to help you with your cases.

However, the right of access to the courts has one very serious limitation, that comes from a Supreme Court case called Lewis v. Casey, 518 U.S. 343 (1996). This case states that a prisoner cannot claim he was denied his right of access to the courts unless he shows an “actual injury.” To show actual injury, you have to prove that prison officials or prison policy stopped you from being able to assert a “nonfrivolous claim.” In other words, even if your prison isn’t allowing you to use the law library and isn’t giving you legal help, you still can’t necessarily win a lawsuit about it. To win, courts usually require you to show that you had a legitimate claim or case that you lost, or were unable to bring, due to some action by prison officials, or due to the inadequacy of your access to legal assistance.

You can show actual injury in a lot of different ways. In Myers v. Hundley, 101 F.3d 542 (8th Cir. 1996), for example, the court held that a prison policy requiring prisoners to chose between purchasing hygiene supplies and stamps to file legal documents might violate the right to access the courts if it caused a prisoner to miss a filing deadline. And in Benjamin v. Kerik, 102 F. Supp. 2d 157 (S.D.N.Y. 2000), the court found actual injury when a prisoner could not locate cases cited by defendants in the prison law library, and thus could not fully respond to his adversary’s motion.

The unfortunate problem of Lewis v. Casey is that some courts will only recognize “actual injury” if you have lost your suit or missed a filing deadline because of inadequate access. Other courts, however, allow access to the court claims based on “impairment” of a legal claim, even if the case is not lost. For example, in Cody v. Weber, 256 F.3d 764 (8th Cir. 2001), the court found “actual injury” based on the advantage defendants gained by reading a plaintiff’s confidential legal material.

The most common areas of litigation around court access include your right to:

  1. File legal papers, and to seek and meet with lawyers and legal workers;
  2. Get reasonable access to law books;
  3. Obtain legal help from other prisoners or help other prisoners; and
  4. Be free from retaliation based on legal activity.

1. The Right to File Papers and Meet with Lawyers and Legal Workers

Your right of access to the courts includes the right to try to get an attorney and then to meet with him or her.

For pretrial detainees, the Sixth Amendment right to counsel protects your right to see your attorney, and the Lewis v. Casey actual injury requirement does not apply.

Prisoners without pending criminal cases have a due process right to meet with a lawyer, but that right is limited. In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court explained that you have a right to meet with your attorney and with law students or legal workers, such as paralegals, who work for your attorney. However, this right is subject to the actual injury requirement.

Lewis v. Casey
It is important to keep the Lewis v. Casey “actual injury” requirement in mind as you read the rest of this chapter. It applies to almost all of the following rights related to access to the courts, and it means that many cases on access to courts from before 1996 are of somewhat limited usefulness. Those cases can still help you understand the content of the right of access to the court, but unless denial of the right has led to injury under Lewis v. Casey, you will not be able to win.

You should be aware that prisons can impose reasonable restrictions on timing, length, and conditions of attorney visits. For example, the right to meet with legal workers and lawyers does not necessarily mean that you have a right to meet them in a contact visit. In Shepherd v. Malan, 13 Fed.Appx. 584 (9th Cir. 2001), the court denied an access to courts claim arising from the exclusion of an attorney from a contact visit, because the prisoner did not show actual injury.

Other important ways to communicate with a lawyer is through legal calls and legal mail. Your right to confidential conversation and communication with your lawyer is explained in Section A of this chapter.

2. Access to a Law Library

If your prison decides to have a law library to fulfill the requirements under Bounds, you can then ask the question: Is the law library adequate? A law library should have the books that prisoners are likely to need. The lower courts have established some guidelines as to what books should be in the library. Remember, under Lewis v. Casey, you can’t sue over an inadequate law library unless it has hurt your non-frivolous lawsuit or habeas petition.

Books that Should be Available in Law Libraries:

  • Relevant state and federal statutes
  • State and federal law reporters from the past few decades
  • Shepards citations
  • Basic treatises on habeas corpus, prisoners’ civil rights, and criminal law

Federal courts have also required that prison libraries provide tables and chairs, be of adequate size, and be open for inmates to use for a reasonable amount of time. This does not mean that inmates get immediate access or unlimited research time. Limitations that are too restrictive may constitute a denial of your right of access to the courts, but only if show that these problems caused actual injury.

If the denial of access to the law library is somehow connected to another violation of your constitutional rights, you might not have to show that the denial harmed your non-frivolous lawsuit. For example, in Salahuddin v. Goord, 467 F.3d 263 (2d Cir 2006), a prisoner was not allowed to go to religious services on the days he went to the law library. The case was primarily about free exercise of religion, so the plaintiff did not have to met the actual injury requirement. However, the court still considered the case to be, in part, about access to the library. Similarly, in Kaufman v. Schneiter, 474 F. Supp. 2d 1014 (W.D. Wisc. 2007), the court found an Eighth Amendment violation when a prisoner was forced to chose between using limited out-of-cell time for exercise or for access to the law library.

Inmates who cannot visit the law library because they are in disciplinary segregation or other extra-restrictive conditions must have meaningful access to the courts some other way. Some prisons use a system where prisoners request a specific book and that book is delivered to the prisoner’s cell. This system makes research very hard and time-consuming, and some courts have held that, without additional measures, such systems violate a prisoner’s right to access the courts. Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006); Marange v. Fontenot, 879 F. Supp. 679 (E.D. Tex. 1995).

3. Getting Help from a Jailhouse Lawyer and Providing Help to Other Prisoners

You have a right to get legal help from other prisoners unless the prison “provides some reasonable alternative to assist inmates in the preparation of petitions.” Johnson v. Avery, 393 U.S. 483, 490 (1969). This means that if you have no other way to work on your lawsuit, you can insist on getting help from another prisoner. In Johnson, the Supreme Court held that the prison could not stop prisoners from helping each other write legal documents because no other legal resources were available.

If you have other ways to access the court, like a law library or a paralegal program, the state can restrict communications between prisoners under the Turner test if “the regulation… is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987) (See Section A for more discussion). The Supreme Court has held that jailhouse lawyers do not receive any additional First Amendment protection, and the Turner test applies even for legal communications. Therefore, if prison officials have a “legitimate penological interest,” they can regulate communications between jailhouse lawyers and other prisoners. Shaw v. Murphy, 532 U.S. 223, 228 (2001).

Courts vary in what they consider a “reasonable” regulation. Johnson itself states that “limitations on the time and location” of jailhouse lawyers’ activities are permissible. The Sixth Circuit Court of Appeals said that it was OK to ban meetings in a prisoner’s cell and require a jailhouse lawyer to only meet with prisoner-clients in the library. Bellamy v. Bradley, 729 F.2d 417 (6th Cir. 1984). The Eighth Circuit Court of Appeals upheld a ban on communication when, due to a transfer, a jailhouse lawyer was separated from his prisoner-client. Goff v. Nix, 113 F.3d 887 (8th Cir. 1997). However, the Goff court did require state officials to allow jailhouse lawyers to return a prisoner’s legal documents after the transfer. Id. at 892.

While a state can regulate jailhouse lawyers, it can’t ban them altogether if prisoners have no other means of access to the court. In Bear v. Kautzky, 305 F.3d 802 (8th Cir. 2002), for example, the court found an access to courts violation when a prison banned prisoners who had no other way to get legal help from speaking to jailhouse lawyers.

The right of access to the court is a right that belongs to the person in need of legal services. It does not mean that you have a right to be a jailhouse lawyer or provide legal services. Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993); Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996). Since jailhouse lawyers are usually not licensed lawyers they generally do not have the right to represent prisoners in court or file legal documents with the court, and the conversations between jailhouse lawyers and the prisoner-clients are not usually privileged. Bonacci v. Kindt, 868 F.2d 1442 (5th Cir. 1989); Storseth v. Spellman 654 F.2d 1349, 1355-56 (9th Cir. 1981). Furthermore, the right to counsel does not give a prisoner the right to choose who he wants as a lawyer. Gometz v. Henman, 807 F.2d 113, 116 (7th Cir. 1986). And jailhouse lawyers don’t get any special protection from rules that may impact communication with clients. Rather, courts will apply the Turner test described in Section A.

Some courts require a jailhouse lawyer to get permission from prison officials before helping another prisoner. For example, a New York state court held that the prison could punish a prisoner for helping another prisoner by writing to the FBI without first getting permission. Rivera v. Coughlin, 620 N.Y.S.2d 505, 210 A.D.2d 543 (App. Div. 1994).

Nor will being a jailhouse lawyer protect you from transfer, although the transfer may be unconstitutional if it hurts the case of the prisoner you are helping. For more on this, compare Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978) with Adams v. James, 784 F.2d 1077, 1086 (11th Cir. 1986). The prison may reasonably limit the number of law books you are allowed to have in your cell. Finally, jailhouse lawyers have no right to receive payment for their assistance. Johnson v. Avery, 393 U.S. 483, 490 (1969).

4. Dealing With Retaliation

If you file a civil rights claim against the warden, a particular guard, or some other prison official, there is a chance that they will try to threaten you or scare you away from continuing with your suit. Retaliation can take many forms. In the past, prisoners have been placed in administrative segregation without cause, denied proper food or hygiene materials, transferred to another prison, and had their legal papers intercepted. Some have been physically assaulted. Most forms of retaliation are illegal, and you may be able to sue to get relief.

In many states, you may be transferred to another correctional facility, or briefly put in administrative segregation for many, many reasons. Olim v. Wakinekona, 460 U.S. 238 (1983). However, you cannot be put into administrative segregation solely to punish you for filing a lawsuit. Cleggett v. Pate, 229 F. Supp. 818 (N.D. Ill. 1964). Nor can you be transferred to punish you for filing a lawsuit, whether for yourself, or for someone else. Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Of course, there are other, more subtle things that officers can do to harass you. Perhaps your mail will be lost, your food served cold, or your turn in the exercise yard forgotten. One of these small events may not be enough to make a claim of retaliation, but if it keeps happening, it may be enough to make a claim of a “campaign of harassment.” Calhoun v. Hargone, 312 F.3d 730 (5th Cir. 2002); Witte v. Wisconsin Dept. of Corrections, 434 F.3d 1031 (7th Cir. 2006) (prison doctor subjected to a campaign of harassment for testifying for prisoners).

o prove that the warden or a correctional officer has illegally retaliated against you for filing a lawsuit, you must show three things:

(1) You were doing something you had a constitutional right to do, which is called “protected conduct.” Filing a Section 1983 claim or a grievance is an example of “protected conduct” as part of your First Amendment rights;

(2) What the prison official(s) did to you, which is called an “adverse action,” was so bad that it would stop an “average person” from continuing with their suit; and

(3) There is a “causal connection.” That means the officer did what he did because of what you were doing. Or, in legal terms: the prison official’s adverse action was directly related to your protected conduct.

If you show these three things, the officer will have to show that he would have taken the same action against you regardless of your lawsuit.

An officer learns that you have filed suit against the warden and throws you into administrative segregation to keep you away from law books or other prisoners who might help you in your suit. The “protected action” is you filing a lawsuit against the warden; the “adverse action” is you being placed in the hole. You would have a valid claim of retaliation unless the officer had some other reason for putting you in the hole, like you had just gotten into a fight with another prisoner.

In one case, a prisoner was able to prove that there was a policy or custom of retaliating against prisoners who helped other prisoners exercise their right of access to the courts. The retaliation violated their First Amendment rights. Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001).

It is possible — but not easy — to get a preliminary injunction to keep correctional officers from threatening or harming you or any of your witnesses in an upcoming trial. Valvano v. McGrath, 325 F. Supp. 408 (E.D.N.Y. 1970). Preliminary injunctions are discussed in Chapter Four, Section B. It is also a federal crime for state actors (the prison officials) to threaten or assault witnesses in federal litigation. 18 U.S.C. § 1512 (a)(2). Also remember that groups of prisoners are allowed to bring class action suits if many of them are regularly deprived of their constitutional rights. You have strength in numbers – it cannot hurt to enlist the help of friends inside and outside prison. If you can get somebody on the outside to contact the media or the prison administration on your behalf, it may remind the powers that be that others are out there watching out for you, and it may scare them away from engaging in particularly repressive tactics.

Finally, remember that even when you think it would be pointless or go through the prison’s formal complaint system, the PLRA still requires you to do so. If you complain and a guard or someone else threatens you, you still have to go through all available prison grievance and appeal procedures before the court will consider your Section 1983 claim. Booth v. Churner, 532 U.S. 731, 740 (2001).

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