FINAL COPY
294 Ga. 504


                    S13A1368. DAKER v. HUMPHREY.


      BENHAM, Justice.

      In September 2012, a Cobb County jury found appellant Waseem Daker

guilty of malice murder, burglary, false imprisonment, aggravated battery and

criminal attempt to commit aggravated stalking. On October 1, 2012, the trial

court sentenced appellant to life in prison and a term of years. Since his

conviction, appellant has moved for a new trial and states his intention to take

additional legal action including a direct appeal to this Court. Appellant is

incarcerated at the Georgia Diagnostic and Classification Prison (GDCP) within

the Special Management Unit (hereinafter “SMU”). During his incarceration,

appellant contends he has complained several times to prison officials about

having no access to a law library or legal materials. On January 10, 2013,

appellant, proceeding pro se, attempted to file a petition for a writ of mandamus

in the Superior Court of Butts County seeking to compel the Warden to provide

him access to a law library. The petition was accompanied by a motion to

proceed in forma pauperis. On February 14, 2013, the trial court ordered the
clerk not to allow filing of the mandamus petition because it concluded the

petition was frivolous on its face. The trial court also denied appellant’s motion

to proceed in forma pauperis. Appellant filed an application for discretionary

review and this Court granted it, posing the following question: “Whether the

trial court erred in denying filing of applicant’s petition for mandamus.”

Because we find error, the trial court’s order denying filing is reversed and the

matter is remanded with direction.

      Prisoners have a constitutional right of access to the courts. Bounds v.

Smith, 430 U. S. 817, 821 (II) (A) (97 SCt 1491, 52 LE2d 72) (1977). This

right of access to the courts “requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from persons trained in the law.”

Id. at 828. See also Portis v. Evans, 249 Ga. 396 (2) (291 SE2d 511) (1982).

“Prisoner access to the courts in order to challenge unlawful convictions and to

seek redress for violations of constitutional rights cannot be unjustifiably denied

or obstructed. [Cit.]” Howard v. Sharpe, 266 Ga. 771, 772 (1) (470 SE2d 678)

(1996). Meaningful access to the courts includes the right to contest the legality

of a conviction. Id. Any restriction on a prisoner’s access to the courts must

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be “clearly warranted by the particular circumstances of each case.” Id. at 773.

In keeping with Bounds, supra, this Court has upheld relief granted to an inmate

who lacks access to an adequate law library. See James v. Hight, 251 Ga. 563,

564 (307 SE2d 660) (1983) (affirming trial court’s order transferring inmate to

a facility with an adequate law library). See also Portis v. Evans, supra, 249 Ga.

at 397 (visitation by an attorney unable to provide legal assistance to a prison

without an adequate library did not comply with Bounds).

      A trial court may deny filing of a civil action such as a petition for a writ

of mandamus if the pleading on its face shows a complete absence of any

justiciable issue of law or fact such that the court could not grant any relief.

Yizar v. Ault, 265 Ga. 708 (1) (462 SE2d 141) (1995). Based on our review of

the allegations in the petition at bar, we cannot say there is a complete absence

of any justiciable issue of law or fact such that the trial court could not grant

relief. Here, appellant has several matters pending in the courts and contends

he has no access to a law library. “When an inmate claims that he was denied

all access to a jail law library or jail legal resources during the course of

litigation . . . , the claim is a serious one and should be carefully considered by

the trial court.” Portee v. State of Ga., 277 Ga. App. 536, 537, n. 2 (627 SE2d

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63) (2006).1 Accordingly, the trial court’s decision to deny filing of appellant’s

mandamus petition is reversed, and the matter is remanded to the trial court for

it to allow filing of the mandamus petition and for it to revisit appellant’s

attached pauper’s affidavit.2

       Judgment reversed and case remanded with direction. All the Justices

concur.




       1
          The fact that appellant has been able to file various pleadings in the courts does not in and
of itself render his allegations superfluous or frivolous. For example, the right of access also
includes a post-filing opportunity to research and formulate rebuttals to authorities cited in the
responsive pleadings of the adversary. See Morrow v. Harwell, 768 F2d 619 (II) (5th Cir. 1985).
       2
         We note that the merits of a claim concerning access to a law library are unaffected by
whether appellant is indigent. See Straub v. Monge, 815 F2d 1467 (11th Cir. 1987) (Bounds, supra,
applies to all inmates regardless of their indigency status or their means to hire a lawyer). If
appellant is allowed to proceed in forma pauperis or is able to pay filing fees, the mandamus petition
must proceed on the merits.

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                        Decided February 24, 2014.

      Murder, etc. Butts Superior Court. Before Judge Wilson.

      Waseem Daker, pro se.

      Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Angelique B. McClendon, Assistant Attorney General, for

appellee.




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