                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-3462
                                     ___________

Archie Bear, et al.,                      *
                                          *
      Plaintiffs - Appellees,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Walter Kautzky, et al.,                   *
                                          *
      Defendants - Appellants.            *
                                     ___________

                                Submitted: June 13, 2002

                                    Filed: October 4, 2002
                                     ___________

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                         ___________

LOKEN, Circuit Judge.

       Iowa prison officials appeal the district court’s1 grant of a preliminary
injunction permitting four inmates at the Iowa State Penitentiary (ISP) to
communicate with other inmates serving as “jailhouse lawyers,” and to use a
discontinued method of inmate-to-inmate legal correspondence known at ISP as the
red star system, pending trial of plaintiffs’ claims that a new, more restrictive policy
deprives them of effective access to the courts. We review the district court’s grant

      1
       The HONORABLE CHARLES R. WOLLE, United States District Judge for
the Southern District of Iowa.
of preliminary injunctive relief for abuse of discretion. Goff v. Harper, 60 F.3d 518,
520 (8th Cir. 1995). Because defendants made no showing that an absolute ban on
inmate legal correspondence serves a legitimate penological purpose, and no showing
that these plaintiffs or their jailhouse lawyers misused the former system, we
conclude the district court did not abuse its discretion in granting the injunction.

       Prior to July 1, 2001, ISP officials permitted inmates to provide legal services
to each other. ISP maintained the red star system to facilitate correspondence
between inmates in the same prison unit regarding legal matters. The red star system
for screening and delivering legal mail is described in Goff v. Nix, 113 F.3d 887, 888
(8th Cir. 1997). On July 1, 2001, ISP officials adopted a new policy banning inmates
from providing legal services to each other, eliminating the red star system, and
directing inmates to seek legal assistance from a private attorney under contract with
ISP. Two groups of inmates filed actions challenging the new policy under 42 U.S.C.
§ 1983 and moved the district court for a preliminary injunction enjoining its
enforcement pendente lite. The court consolidated the two actions and, following an
evidentiary hearing, granted the requested injunction in favor of four plaintiffs:
Archie Bear, William Stringer, Michael McBride, and Romeo Hardin.2

        The new ISP policy impacts two frequently-litigated issues -- the extent to
which an inmate has a First Amendment right to communicate with other inmates, and
the boundaries of an inmate’s constitutional right of access to the courts. As to the
first, in Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court held that,
because inmates retain First Amendment free speech rights, a prison regulation
limiting correspondence between inmates at other correctional institutions “is valid

      2
       The fifth plaintiff, Thomas Overton, seeks to continue serving as a jailhouse
lawyer. The district court properly denied him a preliminary injunction on the ground
that he has not demonstrated the requisite irreparable injury because he has no
constitutional right to provide legal assistance to other inmates. See Gassler v. Rayl,
862 F.2d 706, 707-08 (8th Cir. 1988).

                                         -2-
if it is reasonably related to legitimate penological interests.” As to the second, in
Lewis v. Casey, 518 U.S. 343, 351 (1996), quoting Bounds v. Smith, 430 U.S. 817,
825 (1977), the Court confirmed that inmates have a constitutional right of access to
the courts that obligates prison officials to provide some means, such as a prison law
library or a legal assistance program, “for ensuring ‘a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the
courts.’” In Shaw v. Murphy, 532 U.S. 223 (2001), the Court helped define the
interplay between these two issues by ruling that communications between inmates
about legal matters are not entitled to greater constitutional protection than other
communications -- the deferential Turner standard applies.

        In this case, plaintiffs allege that the new ISP policy effectively denies them
access to the courts. At the preliminary injunction hearing, the four plaintiffs testified
that they have post-conviction proceedings pending or planned, that they do not have
the knowledge or skill needed to pursue these claims without legal assistance, and
that they either were receiving effective assistance from jailhouse lawyers or seek to
obtain such assistance for these specific claims. This testimony satisfied, at least for
preliminary injunction purposes, the requirement that an inmate plaintiff demonstrate
actual injury, that is, “that the alleged shortcomings in the [prison’s] library or legal
assistance program hindered his efforts to pursue a legal claim.” Lewis, 518 U.S. at
351; see Johnson v. Avery, 393 U.S. 483, 501-02 (1969) (White, J., dissenting).
Regarding the ISP’s new policy of making a contract attorney available, one plaintiff
testified that the attorney has a conflict of interest, another testified that he tried
unsuccessfully for one year to meet with that attorney, and a third testified that the
attorney knew nothing about criminal law and was unable to provide research
assistance, conduct investigations, or file papers.

      Defendants presented no testimony or documentary evidence at the hearing.




                                           -3-
       In exercising its discretion to grant a preliminary injunction, the district court
applied the familiar four-part test adopted in Dataphase Sys., Inc. v. C L Sys., Inc,
640 F.2d 109 (8th Cir. 1981). First, the court concluded that the four plaintiffs
satisfied the irreparable injury requirement because they risked “losing the ability to
file meaningful challenges to their convictions or conditions of confinement.”3
Second, while acknowledging that defendants have a “strong interest in maintaining
security and order at ISP” and that inmates have been known to abuse jailhouse
lawyer systems, the court concluded that the balance of harms tips in plaintiffs’ favor
because defendants presented no evidence that continued legal communications
during the pendency of these proceedings would cause harm at ISP. Third, given the
lack of evidence from defendants addressing the Turner factors, the court concluded
that plaintiffs “may well prevail on the merits” because they are “trying to bring
nonfrivolous challenges to their convictions and to the conditions of their
confinement [and do] not have the means to do it themselves.” Finally, assessing the
public interest factor, the court concluded that protecting constitutional rights by
maintaining the status quo for a handful of inmates outweighed the public interest “in
minimizing court interference in the orderly and secure running of the prison system.”

      On appeal, defendants argue that plaintiffs have shown no irreparable injury
because three of them have appointed counsel for their pending habeas cases.
Regarding plaintiffs’ likelihood of success on the merits, defendants argue the right
of access to the courts is not unlimited, there is no constitutional requirement to
provide inmate-to-inmate legal communications, and ISP’s providing of a contract
attorney to assist inmates “satisfies the requirement of a person trained in the law.”
Therefore, the district court’s preliminary injunction is an excessive intrusion upon
the public interest in the orderly and secure running of the prison system.


      3
        Consistent with Lewis v. Casey, 518 U.S. at 354-55, the district court limited
its preliminary injunction to plaintiffs’ correspondence regarding challenges to their
convictions and conditions of confinement.

                                          -4-
       Our difficulty with this argument is that it ignores the interplay between the
First Amendment and right-of-access issues. We agree there is no absolute First
Amendment right to communicate with other inmates about legal or other matters.
Thus, in Goff v. Nix, 113 F.3d at 891, we upheld ISP’s ban on legal correspondence
between inmates located at different facilities because defendants made a sufficient
showing that the restraint was reasonably related to a legitimate penological interest.
But Goff is distinguishable from this case in two critical respects. First, plaintiffs in
this case allege that ISP has imposed a total ban on all inmate legal communications,
and they presented evidence that they have no satisfactory alternative way of
obtaining needed legal assistance to pursue specific post-conviction claims. Second,
and even more important, defendants introduced no evidence justifying the new
policy under the deferential Turner standard, despite the Supreme Court’s repeated
caution that inmates do have First Amendment rights and therefore free speech
restrictions must be justified by legitimate penological concerns.

       As we explained in Goff v. Nix, 113 F.3d at 892, when a regulation restricting
inmate legal communication is challenged, the Turner factors must be weighed in a
manner that takes into account any impact on the inmate’s right of access to the
courts. But courts must still defer to prison officials’ reasonable penological
decisions. In Bounds and Lewis, the Supreme Court emphasized that there is no one
prescribed method of ensuring inmate access to the courts. A prison system may
experiment with prison libraries, jailhouse lawyers, private lawyers on contract with
the prison, or some combination of these and other devices, so long as there is no
actual harm to the access rights of particular inmates. See Lewis, 518 U.S. at 351; cf.
Christopher v. Harbury, 122 S. Ct. 2179, 2185 (2002).

       In this case, defendants may well present sufficient evidence at trial to justify
the new ISP policy under the Turner standard as it applies in access-to-the-courts
cases. Indeed, the Supreme Court has repeatedly noted the legitimate penological
interests in restricting inmate-to-inmate correspondence, including communications

                                          -5-
regarding legal matters and the activities of jailhouse lawyers. See Shaw, 523 U.S.
at 231; Turner, 482 U.S. at 91-93; Johnson, 393 U.S. at 488, 499-500. But on this
record, we conclude the district court carefully applied the Dataphase factors and did
not abuse its discretion in granting a limited preliminary injunction in favor of the
four plaintiffs.

      The court’s order of September 26, 2001 is affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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