Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84 C 1203-Robert W. Warren, Chief Judge.
Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
RIPPLE, Circuit Judge. In this prisoner's civil rights action, the appellant, Christian Sahagian, asks this court to review the judgment of the district court disposing of his claims that he was denied access to the courts while incarcerated as a Wisconsin State prisoner at the United States Penitentiary in Lewisburg, Pennsylvania (Lewisburg) and at the United States Penitentiary at Marion, Illinois (Marion). The appellees are Walter Dickey, the Administrator of the Wisconsin Department of Health & Social Services Division of Corrections, and Donald Clusen, the Superintendent of the Waupun Correctional Institution. Mr. Sahagain claims that the appellees unconstitutionally denied him access to the courts by repeatedly refusing to provide him with Wisconsin legal materials after he was transferred in to the federal prison system. The district court, following the recommendation of the magistrate, granted summary judgment in favor of the appellees on the appellant's Lewisburg claim. As to the Marion claim, the district court, also in conformity with the magistrate's recommendation, granted summary judgment in favor of the appellants and ordered equitable relief but no damages. For the reasons set forth in the following opinion, we reverse the district court's grant of summary judgment on the damages portion of the Marion claim, and remand for further proceedings on that issue. In all other respects, the judgment of the district court is affirmed.
In March 1982, the appellant was convicted of armed robbery while disguised. He was sentenced to imprisonment at the Wisconsin Correctional Institution in Waupun, Wisconsin (Waupun or WCI). Because of the overcrowding in the Wisconsin prisons, Mr. Sahagian was transferred to the federal prison system in March 1983.
From September 1983 to May 1984, Mr. Sahagain was incarcerated at Lewisburg. The library at Lewisburg had no Wisconsin legal materials. The appellant began his attempts to obtain access to Wisconsin legal materials shortly after his arrival at Lewisburg. In October 1983, the appellant received a letter from one of the appellees, Mr. Clusen, stating: "Library services are available in the Federal institutions to assist you with your legal work. Necessary materials can be provided through various library loan programs. I suggest you discuss your needs with appropriate staff at your institution." R.1, Ex.4. In November 1983, Mr. Sahagain responded to the appellee's letter by writing: "I am sorry to inform you that the Bureau of Prisons [does] not supply state Law Books to prisoners. I must ask you [again] to furnish me with my much needed request for Wisconsin Law Books to aid me in my State Appeal . . ." R.1, Ex. 3. Shortly thereafter, Mr. Clusen responded: "As was indicated to you previously, it is recommended you pursue this matter through the library requesting assistance through inter-library loan agreements." Id.
In December 1983, while Mr. Sahagian was still at Lewisburg, the Wisconsin Court of Appeals affirmed his armed robbery conviction. In that direct appeal, he had been represented by the Wisconsin State Public Defender (Public Defender). After his conviction was affirmed, the Public Defender notified the appellant that, in her opinion, filing a petition for review in the Wisconsin Supreme Court would be frivolous and she declined to represent the appellant further. Mr. Sahagian was told that he could pursue the petition for review on his own and that, if he chose to do so, the Public Defender was required to file a petition for review that included a statement of the case and appendix with the Wisconsin Supreme Court. Mr. Sahagian decided to file the petition for review, and on January 13, 1984, the Public Defender filed the required statement of the case and appendix with the Wisconsin Supreme Court and secured a thirty-day extension of time for the appellant to file a supplemental petition for review.
On January 28, 1984, the appellant filed a Request for Administrative Remedy with the Federal Bureau of Prisons explaining that he was a Wisconsin state prisoner at Lewisburg who could not get Wisconsin law books from either Wisconsin or Lewisburg. An official of the Bureau of Prisons responded:
It is the position of the Bureau of Prisons that the state authorities retain the responsibility of providing you access to the state courts through attorneys or other acceptable methods. . . I suggest you contact the state authorities again and inform them that the Bureau of Prisons cannot accept this responsibility on their behalf. I can offer you no further relief and your request is denied. Mr. Sahagian borrowed money and retained a private attorney who filed the supplemental petition for review. The Wisconsin Supreme Court subsequently denied the petition for review.
In May 1984, the appellant was transferred to Marion. The library at Marion contained a limited amount of Wisconsin legal materials.*fn1 Wisconsin prisoners at Marion are entitled to make reasonable requests for copying of certain materials by writing to the librarian at Waupun. Legal services from the Wisconsin Public Defender and the Legal Assistance to Institutionalized Persons Program (LAIPP) are also available to Wisconsin prisoners at Marion.
Mr. Sahagian sent three letters to the librarian at Waupun requesting photocopying of legal materials, but received no response to his letters. The Waupun librarian did not receive the appellant's letters. In November 1984, the Public Defender decline to appoint counsel for the appellant's contemplated petition for writ of habeas corpus because it appeared to be a section 1983 action. In December 1984, the LAIPP declined to assist the appellant in a section 1983 action involving the availability of legal services to Wisconsin prisoners at Marion because of its policy of avoiding litigation challenging conditions of confinement.
Mr. Sahagian filed his pro se complaint in September 1984. He alleged that the appellees, in their individual capacities, denied him access to the courts by failing to provide him with state legal materials or assistance from persons adequately trained in the law.*fn2 Appellant requested declaratory and injunctive relief, and nominal and punitive damages. R.1 at 6.
B. The Magistrate's Recommendations
The case was referred to a magistrate who, on consideration of the parties' cross motion s for summary judgment, issued his recommendations to the district court. R.44. Finding that there were no disputes as to the material facts, the magistrate concluded that the appellees' motion for summary judgment should be granted on the appellant's claim of denial of access to the court while at Lewisburg, and that the appellant's motion for summary judgment should be granted on his claim for denial of access to the courts during his confinement at Marion.
The magistrate concluded that "during his incarceration at Lewisburg, the [appellant] was afforded access to the Wisconsin Appellate Courts by means of the [Public Defender]. Moreover, [Mr. Sahagian had] failed to establish that the alleged restriction of his access to the courts resulted in any prejudice to him." R.44 at 7. The magistrate recognized that Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977) "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." R.44 at 6. He noted, however, that "[a] finding that prison officials have deprived an inmate of access to the courts cannot be sustained in the absence of some showing of prejudice." Id. at 6-7 (citing Twyman v. Crisp, 584 F.2d 352 (10th Cir. 1978); Bach v. Coughlin 508 F.2d 303 (7th Cir. 1974); Isaac v. Jones, 529 F. Supp. 175 (N.D. Ill. 1981)).
The magistrate stated that an adequate law library was not available at Lewisburg for the appellant. However, because 1) appellant was represented by the Public Defender in his appeal as of right to the Wisconsin Court of Appeals, 2) the Public Defender filed a statement of the case and appendix with the Wisconsin Supreme Court, and 3) appellant's privately-retained counsel filed a supplemental petition for review with the Wisconsin Supreme Court, appellant was afforded access to the Wisconsin appellate courts and he did not show any prejudice from the alleged restriction of access.
With respect to Mr. Sahagian's confinement at Marion, the magistrate concluded that "the [appellant's] right to meaningful access to the courts was impaired, because of his failure to receive his requested photocopies of cases from the library at WCI, albeit, perhaps-though no fault of the state." R.44 at 8. The limited Wisconsin legal materials (which do not include case reports) supplemented by photographs of materials from the Waupun library and the legal services of the Public Defender and the LAIPP comprise the Wisconsin plan to provide meaningful access to the courts for Wisconsin State prisoners confined at Marion. The Public Defender and the LAIPP had declined to represent Mr. Sahagian. Thus, to attack his judgment and sentence, "he must rely entirely on the library made available to him." Id. The magistrate concluded that the failure of the appellant to receive the Wisconsin cases he requested of the Waupun librarian "seriously restricts what appears to be the [appellant's] sole means to attack his judgment and sentence and is tantamount to a denial of his access to the courts." Id. at 8-9.
The magistrate found inappropriate the broad relief requested ...