that he made several requests to look at the materials and informed defendants of his need to act quickly. LaRue's allegation that defendants intentionally delayed access to the materials until after LaRue's appeal had been dismissed is sufficient to support an inference that defendants' conduct resulted in prejudice to LaRue's right of access to the courts.
Finally, defendants contend that they are entitled to qualified immunity. The Supreme Court has held that "government officials performing discretionary functions generally are shielded from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396 , 102 S. Ct. 2727 (1982). Whether an official is protected by qualified immunity turns upon the objective legal reasonableness of the action, in light of legal rules clearly established at the time the action was taken. The contours of the right allegedly violated must be sufficiently clear so that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523 , 107 S. Ct. 3034 (1987). In support of their claim of qualified immunity, defendants contend the following:
a) it is not clearly established that plaintiff has a right [to] legal counsel and law materials; b) it is not clearly established that plaintiff can be considered to have been denied access to the Courts in the absence of a showing of prejudice; and c) it is not clearly established that a delay in providing legal materials due to security considerations is actionable.
With respect to defendants' first contention, it is in fact clearly established that prisoners do not have a right to both legal counsel and law materials. Access to legal materials is but one means of providing inmates access to the courts, and the choice is to be made by prison officials. See Corgain v. Miller, 708 F.2d 1241, 1248 (7th Cir. 1983), citing, Bounds v. Smith, 430 U.S. at 830. In the instant case, the state of Washington initially chose to provide LaRue at least access to an attorney.
When the relationship between LaRue and his attorney broke down, the state of Washington chose to provide LaRue an alternative means of access to the courts. State of Illinois officials agreed to this alternative.
The question presented by the instant case therefore is whether, having agreed to provide LaRue access to legal materials, defendants violated clearly established law by intentionally delaying access to those materials until after LaRue's appeal had been dismissed, despite LaRue's repeated insistence that time was of the essence. In other words, is it objectively reasonable for prison officials to agree to provide a prisoner one means of access to the courts, and then intentionally delay the enjoyment of the means provided until it is effectively too late? This court thinks not.
Such intentional interference with an inmate's right of access to the courts has long violated clearly established constitutional law. See Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975) (Stevens, J.), cert. denied, 435 U.S. 932, 55 L. Ed. 2d 529 , 98 S. Ct. 1507 (1976); Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969); see also Gregory v. Nunn, 895 F.2d 413, 415 (7th Cir. 1990) (per curiam). Accordingly, defendants' first contention does not support qualified immunity.
Defendants' second contention, that it was not clearly established that an inmate can be considered to have been denied access to the courts in the absence of a showing of some prejudice, is also correct as stated. However, since the court has found that the record read in the light most favorable to LaRue shows sufficient prejudice, defendants' second contention does not support qualified immunity.
Finally, defendants' third argument in favor of qualified immunity is that it was not clearly established that a delay in providing access to legal materials due to legitimate security justifications is actionable. Again defendants are correct in their statement of the law. Nonetheless, prison officials bear the burden of proving a legitimate security justification. Williams v. Lane, 851 F.2d 867, 878 (7th Cir. 1988), cert. denied, 488 U.S. 1047, 102 L. Ed. 2d 1001 , 109 S. Ct. 879 (1989). In the instant case, defendants have advanced no legitimate security justification for their actions, and have thus not met their burden of proof.
Accordingly, defendants are not entitled to qualified immunity.
For all the foregoing reasons, defendants' motion for summary judgment is DENIED.
James H. Alesia
United States District Judge
Dated: DEC 06 1991