
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1823                                   RICHARD A. STREET,                                Plaintiff, Appellant,                                          v.                 GEORGE A. VOSE, COMMISSIONER OF CORRECTION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            R. A. Street on brief pro se.            ____________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Michael H.  Cohen,  Counsel, Department  of Correction,  on brief  for        _________________        appellees.                                 ____________________                                     May 12, 1993                                 ____________________                      Per Curiam.   In  a prior appeal  in this  case, we                      __________            vacated  the dismissal of appellant's complaint under Fed. R.            Civ. P. 12(b)(6) because it had entered without providing the            plaintiff with notice and an  opportunity to oppose or amend.            Street  v. Vose,  No. 90-1415,  slip  op. (1st  Cir. Mar.  6,            ______     ____            1991).  This  appeal challenges the entry of summary judgment            in favor of the defendants.  We affirm.                                          I                                          I                                          _                      The appellant, a Massachusetts inmate, sued various            correction  officials and  officers under  42  U.S.C.    1983            alleging that he was denied constitutionally adequate  access            to the courts  while confined in the segregation  unit of the            Massachusetts  Correctional  Institution  at  Cedar  Junction            (MCI-CJ).1   After remand,  the defendants moved  to dismiss,            or,  in the alternative,  for summary judgment.   Appellant's            opposition,  like  the defendants'  motion, was  supported by            documentary evidence, and the district court properly treated            the motion as one for summary judgment.                      Plaintiff's  chief   contention  is  that   he  was            repeatedly denied  access to  the separate satellite  library            provided  for segregated inmates, and access to other library                                            ____________________            1.  The appellant was  housed in this unit  for approximately            six  months   on  "awaiting   action"  status   before  being            officially   classified  to   the  unit  in   December  1989.            Plaintiff's allegations cover the entire period, and although            both parties make much of the import of these distinctions in            status, for purposes  of this discussion, we do  not find the            differences of any material relevance.                                         -2-            materials from the prison's main library, in violation of the            First and  Fourteenth Amendments  as well as  the terms  of a            Stipulation  of  Dismissal  (Stipulation)  in  another  case,            Cepulonis v.  Fair, No. 78-3233-Z  (D. Mass. Jun.  24, 1987).            _________     ____            The  Stipulation set  forth, inter alia,  detailed procedures                                         _____ ____            regarding segregated  inmates' use  of the satellite  library            and  legal materials at  MCI-CJ.2   On appeal,  appellant has            not pursued any  argument with respect to his  third cause of            action, which appears to assert state-created rights arguably            inherent in the Stipulation, and, accordingly, that issue has            been waived.                                            ____________________            2.  As to specific  claims that fall within the  scope of the            Stipulation, Street alleges that: between December 1988, when            he was formally classified to the segregation unit, and March            1990, he filed 51 requests  to use the satellite law library,            but was given  timely access only 10 times  and otherwise had            to wait up to two weeks before being given access; routinely,            no  justification or reason was given as to why timely access            could not be provided; requests were not collected daily,  as            required;  some   written  requests   were  refused  or   not            processed;   volumes and  equipment in  the library  were not            maintained,  and   the  library   facility  and   hours  were            insufficient  partly  because  other  inmates  who  were  not            classified  to the segregation  unit, but were  housed there,            were  allowed  to   use  the  satellite  law   library,  thus            effectively  denying access to  those for whom  the satellite            library was  intended.   Street  also  contends that  of  ten            requests for materials from the main library, three were  not            processed, and, as to the  rest, only a small portion  of the            requested materials were received.  Of two requests for legal            assistance, one was granted  late, and the other  was denied.            Finally,  copying requests  were denied, and  necessary books            were   unavailable.    There  are  other  claims  beyond  the            Stipulation:  that his  legal  papers  were  "ransacked"  and            stolen, and that favored inmates  are allowed frequent use of            the satellite library.                                          -3-                                          II                                          II                                          __                      As  we  observed   in  our  prior  ruling,   it  is            undisputed  that   inmates  seeking   release  or   otherwise            contesting the  constitutionality of the  conditions of their            confinement possess a right of access to the courts, that is,            the right to  "adequate law libraries or  adequate assistance            from persons  trained in the law."  Bounds v. Smith, 430 U.S.                                                ______    _____            817, 821, 827-28 (1977) (upholding state access-to-the-courts            plan  under which,  inter  alia,  inmates  not  facing  court                                _____  ____            deadlines might  have a  month's wait for  a library  visit).            However, such  access is subject  to reasonable restrictions:            meaningful access  means no  more  than that  the state  must            assure an indigent inmate "an adequate opportunity to present            his claims fairly."  Id. at 823 (quoting Ross v. Moffitt, 417                                 ___                 ____    _______            U.S. 600, 615-16 (1974)).  The relevant inquiry is whether an            inmate has been  afforded "a reasonably adequate  opportunity            to  present claimed violations  of fundamental rights  to the            courts."  Id. at 825 (emphasis added).              ______    ___                      Moreover, virtually all circuit courts have read an            injury  element into less than total access-denial claims and            required prisoners to  shoulder an initial burden  of showing            that  the deprivation caused  some quantum of  prejudice with            respect to pending or contemplated litigation.  See Strickler                                                            ___ _________            v. Waters, ___ F.2d ___, ___ &  n.10, 1993 WL 86457, *4, *11,               ______            No. 92-6147 (4th Cir. Mar.  26, 1993) (collecting cases).  We                                         -4-            held  as much in  Sowell v. Vose,  941 F.2d 32,  35 (1st Cir.                              ______    ____            1991): Where a  prisoner has not been  denied complete access            to legal  materials, but  alleges only  restrictions on  such            access,  "actual injury  [is]  a prerequisite  to  recovery."            Thus,  unless the deprivation clearly amounts to an absolute,            inherently prejudicial restriction on access (clearly not the            case here), in order to defeat a motion for summary judgment,            "actual injury", i.e., an adverse effect on litigation caused            by the challenged conduct must be sufficiently alleged by the            plaintiff.  See  id. at 34-35; see also Shango v. Jurich, 965                        ___  ___           ___ ____ ______    ______            F.2d 289,  292 (7th Cir.  1992); Crawford-El v.  Britton, 951                                             ___________     _______            F.2d 1314, 1321 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 62                                              _____ ______            (1992).  To that end,  an affidavit opposing summary judgment            must demonstrate with specifics, and not speculation, how the            challenged conduct caused  legal harm.   Sowell, 941 F.2d  at                                                     ______            35-36.                                         III                                         III                                         ___                      Sowell was decided  after our prior ruling  in this                      ______            case and  before  defendants'  summary  judgment  motion  was            filed.     In  its   accompanying  memoranda,  however,   the            defendants  pointed  out,  citing  Sowell,  that  plaintiff's                                               ______            complaint  had failed  to allege  that any  of the  purported            restrictions  had prejudiced  him in  his  ability to  pursue            this, or any other, lawsuit.  The motion was supported by the            affidavit of  MCI-CJ Superintendent Duval  who attested that,                                         -5-            since being  housed in  the segregation  unit, the  plaintiff            "has used, and continues to  use the satellite law library."                       Plaintiff's  memorandum in  opposition stated  that            his failure to allege actual prejudice was due to his lack of            legal training and the defendants' restriction on access.  He            contended that prejudice was demonstrated by the dismissal of            another  named  action  in February  1990.3    Alternatively,            plaintiff  argued  that  he  did  not  need  to  show  actual            prejudice  because   the  Cepulonis   Stipulation  controlled                                      _________            access-denial claims  by segregation unit  inmates at  MCI-CJ            and  expressly  reserved to  inmates  the right  to  bring an            action for damages.   Supporting plaintiff's memorandum  were            the Stipulation and the affidavits of the plaintiff and seven            other segregation  unit inmates each attesting,  in identical            fashion, to numerous violations of the Stipulation.4                      These  profferings   by  the   plaintiff  fail   to            demonstrate a genuine issue as to  actual injury.  Appellant,            who is  an experienced pro  se litigator, does not  claim any                                   ___  __                                            ____________________            3.  However, when the  opposition was  filed, plaintiff  knew            that that dismissal had been  vacated and the case  remanded.            Street v. Maloney,  No. 90-1280, slip op. (1st  Cir. Dec. 29,            ______    _______            1990).             4.  Included  were: routine delays  of 4-8 days  in receiving            access  to the satellite library; missing  books and torn and            missing pages in  many volumes;  out-of-date supplements  and            pocket parts; delays of several weeks in receiving books from            the  main library; typewriter  and copier  frequently broken;            lack of paper and other supplies.                                         -6-            delay or interruption  in this or any other  pending case; he            cites no court-imposed deadlines that  he has missed, or that            he has been unable  to pursue any legal claim as  a result of            any of  the alleged  deprivations.  See  Shango, 965  F.2d at                                                ___  ______            293.   At  most, he  has  described some  delay in  receiving            access  to library materials.  Such temporary restrictions on            access, bereft  of indications of adverse  legal consequence,            do not implicate a Bounds right.  Chandler v. Baird, 926 F.2d                               ______         ________    _____            1057,   1063  (11th  Cir.  1991).    Further,  appellant  has            presented  well-drafted pleadings to  this court, as  well as            the  district court, demonstrating  that he has  retained the            ability to "participate  meaningfully in the  legal process."            Sowell, 941 F.2d at 35.  While it is true that  the plaintiff            ______            did point to one adverse  judgment, it was later vacated, see                                                                      ___            ante  n.3, and we can find nothing in the record indicating a            ____            prejudicial "causal relationship"  between that dismissal, or            any  of the  alleged deprivations,  for that matter,  and the            conduct of the  defendants.  Id.;  see also Crawford-El,  951                                         ___   ___ ____ ___________            F.2d at 1321; Chandler, 926 F.2d at 1062.5                           ________                                          IV                                          IV                                          __                      The  Stipulation  itself,  however,  does  not,  as            appellant  appears to contend, afford an independent basis of                                            ____________________            5.  Because  we decide that the plaintiff  has failed to meet            the initial burden to show prejudice, we need not address the            degree to which any restrictions on access to legal materials            are related to  legitimate penological interests.   Turner v.                                                                ______            Safley, 482 U.S. 78, 89 (1987).            ______                                         -7-            relief from asserted violations of the right of access to the            courts.  See  Green v. McKaskle, 788 F.2d  1116, 1122-23 (5th                     ___  _____    ________            Cir. 1986).  The Cepulonis litigation that ultimately spawned                             _________            the Stipulation at issue here was a class action initiated by            segregation  unit  inmates at  MCI-CJ  (then MCI-Walpole)  to            vindicate Bounds rights.  See  Cepulonis v. Fair, 732 F.2d 1,                      ______          ___  _________    ____            2 (1st Cir. 1984).  And while the Stipulation states that its            procedures provide "adequate  access to the courts,"  we have            not  had  occasion  to  decide  whether   the  terms  of  the            Stipulation  are  constitutionally  required,  and  offer  no            opinion in that regard. Even  assuming that the provisions of            the Stipulation were  intended to meet  no more than  minimal            constitutional  requirements   regarding  segregated   inmate            access  to the  courts,  we  would still  find  the grant  of            summary  judgment  to  the defendants  proper:  The  evidence            offered by  the plaintiff  concerning any  violations of  the            Stipulation  suffers from the same infirmity described in our            discussion  above  -  -  -  the   failure  to  demonstrate  a            sufficient quantum of prejudice to permit the case to proceed            further.6                                            ____________________            6.  To the extent that the plaintiff simply seeks to  enforce            the  Stipulation, he  may not  do so  directly under    1983.            DeGidio v.  Pung, 920 F.2d  525, 534 (8th Cir.  1990); Green,            _______     ____                                       _____            788 F.2d  at 1123; cf. Welch  v. Spangler, 939 F.2d  570, 572                               ___ _____     ________            n.2  (8th Cir. 1991) (district court proceeding included both               1983  and contempt  actions).    The  district court  that            approved   the  Cepulonis   Stipulation  inherently   retains                            _________            jurisdiction to  enforce its  own consent  decree, see  In re                                                               ___  _____            Donald Pearson, ___ F.2d ___, ___  No. 92-2158, slip op. at 9            ______________                                         -8-                      Thus,  because  the  record  presents  no  material            factual  dispute  that  the appellant,  while  housed  in the            segregation unit  during the  times in  question, was  denied            meaningful access to  the courts, the defendants'  motion for            summary judgment was properly granted.                                          V                                          V                                          _                      We also find no abuse  of discretion in the  denial            of the plaintiff's  motion for the district  judge's recusal.            Merely issuing unfavorable  rulings, Lisa v. Fournier  Marine                                                 ____    ________________            Corp., 866 F.2d  530, 532 (1st Cir.), cert.  denied, 493 U.S.            _____                                 _____  ______            819 (1989), or taking other judicial action during the course            of  proceedings cannot form  the basis of  a disqualification            claim absent  a showing  of personal  bias, United  States v.                                                        ______________            Chantal, 902  F.2d 1018,  1022-23 & n.9  (1st Cir.  1990), an            _______            assertion not made here.  Nor was district court's refusal to            grant a default  judgment in favor of the  plaintiff an abuse            of discretion.  See Gulley v. Orr, 905 F.2d  1383, 1386 (10th                            ___ ______    ___            Cir. 1990) (absent a showing  of prejudice, there is a strong            preference  for  a  disposition on  the  merits);  Richman v.                                                               _______            General  Motors Corp.,  437 F.2d  196, 199  (1st Cir.  1977).            _____________________            Finally,  appellant complains that  he was excluded  from two            status  conferences.   While such  ex  parte proceedings  are                                               __  _____                                            ____________________            (1st Cir. Mar. 16, 1993), and parties with standing to  do so            may  seek  compliance in  that  court.   See,  e.g., Consumer                                                     ___   ____  ________            Advisory Bd. v. Glover, ___ F.2d ____, ___, No. 92-1550, slip            ____________    ______            op. at 3-4 (1st Cir, Mar. 31, 1993).                                         -9-            disfavored, see Oses v. Massachusetts, 961 F.2d 985, 986 (1st                        ___ ____    _____________            Cir.  1992); In re Donald Pearson, ___  F.2d ___, ___ No. 92-                         ____________________            2158, slip op. at  16 (1st Cir. Mar. 16, 1993),  the ex parte                                                                 __ _____            contacts here caused  no perceivable harm.  See  id. slip op.                                                        ___  ___            at 17; Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.), cert.                   ______    _______                                _____            denied, 429 U.S. 858 (1976).            ______                      The judgment of the district court is affirmed.                                                            ________                                         -10-
