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ZATKO v. ROWLAND

October 21, 1993

VLADIMIR ZATKO, Plaintiff,
v.
JAMES ROWLAND, et al., Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

 INTRODUCTION

 On October 12, 1991, two consolidated actions, C 90-3035 BAC and C 90-3072 BAC, were reassigned to this court. The plaintiff, Vladimir Zatko, has since filed more than 63 papers concerning these matters alone. Zatko, presently a prisoner in Corcoran State Prison, has been and continues to be a notoriously vexatious litigant. Subject to pre-filing review in the Northern District since 1973, *fn1" Zatko was originally permitted to file this 42 U.S.C. § 1983 action after the court found 20 of the 64 alleged claims cognizable in the Northern District. The court also granted plaintiff's request to proceed in forma pauperis, and ordered the defendants to file a special report.

 ORIGINAL COMPLAINT

 1. Freedom of Religion. Zatko claims to be prohibited from attending group religious services in violation of his First Amendment rights. Such a prohibition is not unconstitutional if reasonably related to a legitimate penological interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) (citing Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987)). Defendant persuasively argues such an interest exists. Zatko, a Security Housing Unit ("SHU") inmate (previously) at Pelican Bay State Prison ("PBSP"), is in the most dangerous class of prisoners in California's state prison system. To allow such a prisoner access to the general population and/or other SHU inmates would constitute an unacceptable risk to the safety of everyone concerned. Moreover, Zatko may worship by other means such as choosing a religious advisor from one of many denominations or possessing religious literature in his cell.

 Because a very legitimate penological interest is at issue, the policy prohibiting plaintiff from attending group religious services is justified. When factual allegations or legal conclusions lack an arguable basis in law or fact, they are frivolous Neitzke v. Williams, 490 U.S. 319, 325, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). This claim lacks a legal basis, hence, it is frivolous and must be DISMISSED.

 2. Access to Law Library. Zatko claims that pursuant to defendant Rowland's general policy he has been denied access to the law library. Prisoners have a constitutional right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989). Furthermore, inmates must be given reasonable time to utilize the library. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985).

 SHU inmates at PBSP may use the law library two hours per week. Twenty-four inmates are allowed in the library at once between 7:30 a.m. and 3:30 p.m., daily. Admittance is granted by sign-up on a first come, first served basis. If an inmate has an impending court deadline, he is entitled four hours per week, and placed at the head of the list. Further, an inmate may request that specific materials be copied and delivered to his cell.

 These time allotments are reasonable as a matter of law. The court acknowledges that most inmates have difficulty traversing the unfamiliar field of law, but must balance against this the weightier resource and disciplinary interests of the prison system. Thus, this claim must be DISMISSED as legally frivolous under Neitzke.

 3. Attorney Visits. Zatko claims that Rowland's policy regarding visitation prevented him from leaving his cell to visit his attorney. Such a policy would violate Zatko's right to meaningful access to the courts. See Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990). However, according to both Mr. Lopez' declaration, and Zatko's own deposition testimony, there is no policy restricting his access to counsel. Rather, plaintiff admitted in his deposition that he chose not to visit with his attorney because he was experiencing back pain which impeded his ability to walk. Thus, this factually frivolous claim is DISMISSED under Neitzke.

 4. Exercise. Zatko claims that he has been denied the opportunity to leave his cell for exercise. The denial of outdoor exercise could violate the Eighth Amendment. Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). However, in commending the PBSP on its "admirable" exercise policy, Zatko testified during his deposition that he is given the opportunity to leave his cell to exercise every morning. This claim is clearly frivolous and must be DISMISSED under Neitzke.

 5. Homicidal Cellmate. Zatko claims he has been deliberately celled at PBSP with a proven killer and sexual deviant who tortures and rapes him, and forces him to perform oral copulation. If true, Zatko would have a claim based on a "deliberate indifference" theory. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Again, however, Zatko's testimony reveals his claim to be factually frivolous. He admitted during his deposition to never being double-celled at PBSP. Thus, this claim is DISMISSED under Neitzke.

 6. Medical Treatment. Zatko complains he was refused proper medical attention at PBSP for his broken jaw. Deliberate indifference to serious medical needs can violate the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). To state a § 1983 claim, one must demonstrate sufficient harm from a deliberate act or omission, not merely a physician's negligence. Id. at 106. Similarly, the Ninth Circuit has held that a difference of opinion as to treatment between a prisoner-patient and a prison physician does not constitute a § 1983 claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

 The evidence herein does not sustain a § 1983 claim. The attendant doctors' declarations show overwhelmingly that Zatko refused the necessary treatments, was totally non-compliant, and otherwise impeded his own recovery in numerous ways. Further, Zatko makes no showing of specific harms due to deliberate indifference.

 Hutchinson v. U.S. held that deliberate indifference may be manifested in two ways: prison official's denial, delay or intentional interference with medical treatment, or, in the way prison physicians provide medical care. Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988). As neither manifestation has been evidenced, this claim is DISMISSED as factually frivolous under Neitzke.


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