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UNITED STATES v. JANIS

October 27, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
GUST MARION JANIS, Defendant.


MOSKOWITZ


The opinion of the court was delivered by: BARRY TED MOSKOWITZ

 Janis contends that he has effectively been denied his right of access to the courts by various shortcomings in the MCC. The usual route for raising claims of denial of access to the courts is through a civil rights action under 42 U.S.C. § 1983. See, e.g., Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851 (9th Cir. 1985); Williams v. Wyrick, 747 F.2d 1231 (8th Cir. 1984). Janis has not brought such an action. Janis, however, has been detained without bail under 18 U.S.C. § 3142 (e) and (f). He has been committed to the custody of the Attorney General (MCC) pending future proceedings in this case. This court has jurisdiction in the context of the criminal case to determine Janis' claims as they relate to his right to adequately represent himself, consult with his standby counsel, and the conditions of his pretrial detention. See, e.g., 18 U.S.C. § 3142 (i) (3) (Requiring court to order custodian of pretrial detainee to provide for reasonable opportunity for private consultation with counsel). This court's rulings therefore are limited to things the MCC must do or provide during the period of pre-conviction detention. If Janis is convicted, any further claims of denial of access to the courts would have to be raised in a § 1983 action. We will address each of Janis' complaints in turn.

 I. DISCUSSION

 Inmates have a constitutional right to adequate, effective and meaningful access to the courts. Bounds, 430 U.S. at 822. The right of access is protected by the First Amendment right to petition for redress of grievances and the Fourteenth Amendment right to procedural and substantive due process. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986). The government argues that an inmate's right of access does not include access for the prosecution of a civil action. The government relies on Toussaint v. McCarthy, 918 F.2d 752 (9th Cir. 1990), in which the Ninth Circuit stated in dicta that an inmate's right of access to the courts extended only to claims concerning his conviction, habeas corpus actions, pending criminal indictments, extradition proceedings, and claims concerning conditions of confinement, i.e., civil rights actions. 918 F.2d at 755. However, the government fails to note that the Toussaint opinion at 918 F.2d 752 was amended and superseded by a later opinion published in the same case at 926 F.2d 800 (9th Cir.), cert. denied, U.S. , 112 S. Ct. 213 (1991). The later opinion omits the dictum cited by the government. See, 926 F.2d at 804-805. The Ninth Circuit's withdrawal of the above-cited language leaves undecided in this circuit the question of whether access to the court includes general civil litigation. This court adopts the reasoning of the Fifth and Eleventh Circuits and Judge Wiggins in dissent in both Toussaint opinions. The constitutional right of access to the courts includes access to the courts for general civil legal matters. Toussaint v. McCarthy, 926 F.2d 800, 809-10 (9th Cir. 1991) (Wiggins, J., dissenting); Straub v. Monge, 815 F.2d 1467, 1470 (11th Cir.), cert. denied, 484 U.S. 946, 98 L. Ed. 2d 363, 108 S. Ct. 336 (1987); Jackson, 789 F.2d at 311. The Fifth Circuit has held that the right of access includes, but is not limited to, divorce and small civil claims. Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). But see, Ward v. Kort, 762 F.2d 856, 860-61 (10th Cir. 1985).

 
"It is by now well established that access to the courts is protected by the First Amendment right to petition for redress of grievances." That right has also been found in the fourteenth amendment guarantees of procedural and substantive due process. Consequently, interference with access to the courts may constitute the deprivation of a substantive constitutional right, as well as a potential deprivation of property without due process, and may give rise to a claim for relief under § 1983. Any deliberate impediment to access, even a delay of access, may constitute a constitutional deprivation.
 
The defendants argue that a prisoner's right of "adequate, effective, and meaningful" access to the courts, as recognized by the Supreme Court in Bounds v. Smith, is limited to the presentation of constitutional, civil rights, and habeas corpus claims. As we have recently said, obiter dicta, in Morros v. Harwell, the Bounds opinion was primarily concerned with constitutional and civil rights claims and with the minimum legal resources that prisons must provide to inmates to ensure effective access to the courts. Recognition of the constitutional right of access to the courts, however, long precedes Bounds, and has from its inception been applied to civil as well as constitutional claims. Almost eighty years ago, in Chambers v. Baltimore & Ohio Railroad Co., the Supreme Court recognized this right of access in the context of a diversity tort suit, founding the right on the privileges and immunities clause . . . .

 Jackson, 789 F.2d at 310-11 (citations omitted). In Toussaint, Judge Wiggins adopted the reasoning of the Fifth and Eleventh Circuits stating, "A citizen's general constitutional right of access to the courts encompasses access for all civil and criminal matters. There is nothing in the custodial setting of a prison that warrants interpreting an inmate's right of access any more narrowly." Toussaint, 926 F.2d at 809 (Wiggins, J., dissenting) (citations omitted).

 A. Access to Library

 "The fundamental constitutional 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. The MCC has chosen to provide a law library for inmates' use. There is no evidence before the court that the MCC provides legal assistants. If the library is constitutionally adequate, then the prison is not also required to provide the inmates with legal counsel. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 856 (9th Cir. 1985). "Bounds requires only 'adequate law libraries or adequate assistance from persons trained in the law,' not both." Cepulonis v. Fair, 732 F.2d 1, 6 (1st Cir. 1984) (quoting Bounds, 430 U.S. at 828) (emphasis in original).

 At the motion hearing, Janis stated that he was currently being provided with six hours of library time per week. One of his more recent filings alleges that he has been receiving substantially less time. Janis' motion to represent himself in the criminal case in this district has been granted and his former attorney has been appointed as standby counsel. The constitution does not guarantee inmates unlimited access to a law library. Lindquist, 776 F.2d at 858. However, because Janis is representing himself, he will need more library time than an inmate represented by an attorney. He does, however, have standby counsel upon whom he could rely for some of his research. The court orders that the MCC provide Janis with at least two hours of library time five days per week if Janis requests such time. Preceding his motion and trial dates, the MCC should provide Janis with additional library time. See, 28 C.F.R. § 543.11(i) (1991). (Requiring warden to give special time allowance to inmate facing imminent court deadline.)

 B. Library Holdings


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