
USCA1 Opinion

	




          November 2, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1297                                   MARVIN M. SMITH,                                 Plaintiff, Appellee,                                          v.              MICHAEL MALONEY & MICHAEL FAIR, DEPARTMENT OF CORRECTIONS,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET            The opinion of this  Court issued on November 1, 1993, is  amended        as follows:            Page 9:  Line 20 - Delete the words, "as there is no dispute,".                 November 1, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1297                                    MARVIN M. SMITH,                                 Plaintiff, Appellee,                                          v.              MICHAEL MALONEY & MICHAEL FAIR, DEPARTMENT OF CORRECTIONS,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Marvin M. Smith on brief pro se.            _______________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Herbert   C.  Hanson,   Senior  Litigation   Counsel,  Department   of        ____________________        Correction, on brief for appellants.                                 ____________________                                 ____________________                      Per Curiam.  In this  appeal we are asked to decide                      __________            whether the defendants are,  as a matter of law, entitled  to            invoke  the  defense  of  qualified  immunity   in  resisting            plaintiff's pro se  action under 42 U.S.C.    1983.  Mitchell                        ___ __                                   ________            v. Forsyth, 472  U.S. 511, 530 (1985).  We  conclude that the               _______            district court correctly decided that the contours of the law            were well known at the time about  which plaintiff complains,            and therefore affirm.                                          I.                                          _                      Plaintiff   Marvin   M.  Smith,   a   Massachusetts            prisoner, sued  the defendants, state  prison officials,  for            taking two years to forward his legal materials after Smith's            transfer from state  to federal custody on  February 5, 1986.            At  the time  of  the transfer,  plaintiff was  attempting to            pursue post-conviction relief from  his state conviction, and            had  several civil  actions pending.   On  March 1,  1986, he            wrote to the state  prison property office inquiring when  he            could expect  to receive his  personal property, particularly            his legal materials, asserting that the delay was threatening            court deadlines.   When no  response came by March  18, 1986,            plaintiff wrote to defendant Maloney, then the Superintendent            of the  state prison,  about the  forwarding of  his personal            property.  The  letter reiterated plaintiff's lack  of access            to  his  legal  documents,  and  again  warned  that  it  was            impossible to  meet pressing  court dates  because his  legal                                         -4-            materials were being held at the state prison.  On March  19,            plaintiff wrote a similar letter  to defendant Fair, the then            Commissioner of  the Massachusetts  Department of  Correction            ("DOC").                      Defendant Maloney's April  1, 1986 response  to the            March 18 letter advised that "your property must be picked up            by  your family."   Plaintiff's letter to  defendant Fair was            referred to Pires, a DOC grievance coordinator, who, on April            24, 1986, informed  plaintiff that he  would check into  "the            problem with  your property."   In a  May 13, 1986  letter to            Pires,  plaintiff complained,  inter alia,  that  he had  not                                           _____ ____            received his legal property or legal mail since the transfer,            and  that federal prison  administrators would not  allow his            family to send his legal  property.1  Pires did not reply  to            that  letter.    However,  on  June 9,  1986,  a  DOC  Deputy            Commissioner approved a Pires' memorandum outlining defendant            Maloney's  agreement that his facility would assume any costs            in  forwarding property of inmates transferred to the federal            prison  system, and would  also "ensure that  all permissible            property is forwarded."                                            ____________________            1.  Plaintiff also  relies on  103 C.M.R.    403.16(2)  which            states in relevant part:  "Whenever an inmate  is transferred            to  another correctional  institution  all personal  property            approved  for retention at the receiving institution shall be            transferred  along with  him/her or  as  soon as  practicable            thereafter."                                         -5-                      In  July 1987, plaintiff still had not yet received            his legal  property and filed  this   1983 suit  against Fair            and Maloney in their individual and official capacities.  The            complaint  alleged that because the federal prison system was            not  equipped to assist him with pending Massachusetts cases,            the continuing refusal  to forward his  legal property was  a            deprivation of property without due  process and a denial  of            meaningful access to the courts.   On March 15, 1988, twenty-            five   months   after  the   transfer  to   federal  custody,            plaintiff's legal  materials  were forwarded  to the  federal            authorities.     Defendant   Maloney's  accompanying   letter            acknowledged plaintiff's federal  lawsuit seeking the  return            of his legal property, and  characterized the delay as caused            by  "administrative miscommunication at  our end."   In 1989,            plaintiff was returned to the state prison system.                      In  1990  defendants'  initial motion  for  summary            judgment on the  due process and access to  the courts claims            was  denied;  an  accompanying  claim  of  inadequate federal            prison library facilities  was declared moot  since plaintiff            was  no longer  in  federal custody.    In 1992,  defendants'            renewed motion for summary judgment on, inter alia, qualified                                                    _____ ____            immunity  grounds was  denied, and  the case  was ordered  to            proceed to  trial.  Our  review on this  interlocutory appeal            from the denial  of a qualified immunity defense  is de novo,            and  following the usual  summary judgment commands,  we view                                         -6-            all  facts and  reasonable inferences  from  the record  as a            whole in  plaintiff's favor.2   Cookish  v. Powell,  945 F.2d                                            _______     ______            441, 443 (1st Cir. 1991).                                         II.                                         __                      Plaintiff's  complaint  alleges,   with  sufficient            particularity,  a  claim for  which  relief under     1983 is            available:  the right to  meaningful and effective access  to            the courts.   Bounds v.  Smith, 430 U.S. 817,  822-24 (1977).                          ______     _____            We  have  held  that allegations  of  intentional  refusal to            return  an inmate's legal  materials state a  cause of action            under   1983.   Simmons v. Dickhaut,  804 F.2d 182, 184  (1st                            _______    ________            Cir.  1986).   In  determining  whether  the  defendants  are            entitled to the  protection of qualified immunity  from suit,            the  inquiry is essentially objective:  whether a "reasonable            [official]  could  have  believed  [the  failure  to  forward            plaintiff's legal materials for two  years] to be lawful,  in            light  of clearly  established law  and  the information  the            [prison officials]  possessed."  Anderson  v. Creighton,  483                                             ________     _________            U.S. 635, 641 (1987).   Plaintiff bears the initial burden to            show that  the legal rules  regarding the right of  access at                                            ____________________            2.  We note that plaintiff's motion for leave to file a first            amended  verified complaint,  proffered  before the  district            court  acted  upon  defendants'  renewed  motion  for summary            judgment, was denied  after this appeal  was noticed.   While            defendants argue  that  the  amended  verified  complaint  is            outside  the  record  on  appeal, since  plaintiff  expressly            included it as part of his opposition to summary judgment, it            is  properly before  us.   See Sheinkopf  v. Stone,  927 F.2d                                       ___ _________     _____            1259, 1262 (1st Cir. 1991).                                         -7-            issue  here were  sufficiently  clear  before the  defendants            acted or, in this case, failed to act.  Davis v. Scherer, 468                                                    _____    _______            U.S. 183,  197 (1984).   Once that  threshold is  passed, the            defendants' conduct is compared to what a reasonable official            would understand  was legally  required  during the  relevant            period, from February 1986 through  March 1988.  To that end,            a "court should  ask whether the [officers]  acted reasonably            under settled law  in the circumstances, not  whether another            reasonable, or more reasonable, interpretation  of the events            can be constructed  [subsequently] . . . .  Hunter v. Bryant,                                                        ______    ______            112 S. Ct. 534,  537 (1991); see also Frazier v.  Bailey, 957                                         ___ ____ _______     ______            F.2d 920, 929  (1st Cir. 1992); Cinelli v.  Cutillo, 896 F.2d                                            _______     _______            650, 654 (1st Cir.  1990).  If the particular access right at            issue here was clearly established at the time of the alleged            deprivation, it can  be "presume[d] that the  defendant knew,            or should have  known that his conduct was  beyond the pale."            Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992).            __________    _______                                         III.                                         ___                      Applying this  standard, we have  little difficulty            concluding  that   plaintiff  has  satisfied  the  burden  to            demonstrate  that the  access  right  at  issue  was  clearly            established  during   the  relevant  period.     In  opposing            defendants' request for  summary judgment based on  qualified                                         -8-            immunity,3 plaintiff  sufficiently identified a  "universe of            authority" relevant to his access  claim.  Elder v. Holloway,                                                       _____    ________            975 F.2d  1388, 1393 (9th  Cir. 1991), cert. granted,  113 S.                                                   _____ _______            Ct. 3033 (1993).  We have not required a plaintiff opposing a            qualified immunity defense to cite cases in which the precise            conduct at issue had been  found unlawful.  Germany v. Vance,                                                        _______    _____            868 F.2d 9, 16 (1st Cir. 1989).  "It is enough,  rather, that            there existed case  law sufficient to clearly  establish that            if a  court were presented  with such a situation,  the court                        ____            would find that  plaintiff's rights were violated."   Hall v.                                                                  ____            Ochs, 817 F.2d 920, 925 (1st Cir. 1987).            ____                      By  1986, "[m]any  courts [had]  found  a cause  of            action for violation  of the right of  access . . .  where it            was  alleged   that  prison   officials  confiscated   and/or            destroyed  legal  materials."    Simmons,  804  F.2d  at  183                                             _______            (collecting  cases).  See  also Bonner v.  Coughlin, 517 F.2d                                  ___  ____ ______     ________            1311,  1320 (7th  Cir. 1975)  (pre-Bounds  case assumes  that                                               ______            intentional taking  of prisoner legal  materials resulting in            access   interference  may  violate  due  process);  Ruiz  v.                                                                 ____                                            ____________________            3.  In an accompanying affidavit,  plaintiff averred that  he            had four  lawsuits pending at  the time of his  February 1986            transfer  to federal custody.   Court documents,  attached as            exhibits, show that  two of these cases  were later dismissed            for  lack of  prosecution,  a  direct consequence,  plaintiff            maintains, of the two-year deprivation of his legal materials            which included trial transcripts, pleadings, legal documents,            research  materials and  exhibits.    For  the  same  reason,            plaintiff attests that he could not effectively prosecute the            two other pending actions.                                         -9-            Estelle, 679 F.2d  1115, 1153 (5th Cir. 1982)  (access to the            _______            courts includes right to access to those "accessories without            which  legal claims cannot  be effectively  asserted"), cert.                                                                    _____            denied, 460 U.S. 1042 (1983); Morello v. James, 810 F.2d 344,            ______                        _______    _____            346 (2d Cir. 1987) (complaint of official taking, in 1983, of            pro  se  legal materials  and  work product  stated  a Bounds            ___  __                                                ______            claim); Green v. Johnson, 977  F.2d 1383, 1389-90 (10th  Cir.                    _____    _______            1992) (pre-1985 seizure of pro se legal materials followed by                                       ___ __            dismissal of several of inmate's lawsuits stated a cognizable            denial of  access claim).   And, in  Germany, where  a social                                                 _______            worker's failure to disclose important information was  found            to preclude qualified immunity, we concluded:  "In 1980,  the            contours  of  the   right  of  access  to   the  courts  were            sufficiently  clear  so  that  a  reasonable  official  would            understand   that  the  right   would  be  violated   by  the            intentional   or   recklessly  indifferent   withholding   of            potentially  exculpatory  information   from  an  adjudicated            delinquent or from  the court itself."  Germany,  868 F.2d at                                                    _______            16.                      Thus, although we have not addressed the particular            question  whether  state  prison  officials'  intentional  or            deliberately   indifferent  withholding   of  a   transferred            inmate's  legal materials implicates a Bounds right, in light                                                   ______            of  the  state of  the  relevant  law  in February  1986,  we            conclude   that  the   unlawfulness   of  such   conduct  was                                         -10-            sufficiently established  at that  time and  would have  been            apparent to a reasonable official.  See Patterson v. Mintzes,                                                ___ _________    _______            717 F.2d 284, 288 (6th Cir. 1983) (unrebutted allegations  of            delay  in   forwarding  transferred  inmate's   legal  papers            constitute  cognizable    1983 claim);  see  also Crisafi  v.                                                    ___  ____ _______            Holland, 655 F.2d  1305, 1309-10 (D.C. Cir. 1981).  Moreover,            _______            plaintiff's letters  would have  alerted a  reasonable prison            official  that some  action  needed to  be  taken to  protect            plaintiff's access rights.  See Nelson  v. Overberg, 999 F.2d                                        ___ ______     ________            162, 166 (6th Cir. 1993).                                         IV.                                         __                      Defendants have posited no governmental interest or            penological  objective  justifying  the delayed  transfer  of            plaintiff's legal materials.  Turner v. Safley, 482  U.S. 78,                                          ______    ______            89 (1987).  Defendants' arguments here that their conduct was            at most negligent or that they were minimally involved in the            claimed  violations  are   not  properly  before  us:     the            subjective  beliefs or motives  of a government  official are            simply   irrelevant  to   the  qualified   immunity  inquiry.            Anderson, 483 U.S. at 641;  Buenrostro, 973 F.2d at 42; Floyd            ________                    __________                  _____            v. Farrell, 765 F.2d 1, 4-5 (1st Cir. 1985); see also Coffman               _______                                   ___ ____ _______            v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989) ("In deciding               _______            [the qualified  immunity] issue,  a court  must consider  the            information upon which  the official acted, although  this is            not to be confused with a review of the official's subjective                                         -11-            intent."), cert. denied, 494 U.S. 1056 (1990).  Consequently,                       _____ ______            the  district court correctly decided that defendants are not            entitled to qualified  immunity on plaintiff's access  to the            courts claim.                      Affirmed.                      ________                      Appellee's request for double costs is denied.                                                             ______                      Appellants' motion to strike first amended verified            complaint from appellee's supplemental appendix is denied.                                                               ______                      Appellee's  cross-motion  to   strike  portions  of            appellants' reply brief is denied.                                       ______                      Appellants'  motion to  amend  argument heading  in            brief is allowed.                     _______                      Appellee's  motion to  supplement appendix  and for            sanctions is denied.                         ______                                         -12-
