The opinion of the court was delivered by: JAMES H. ALESIA
Plaintiff, Mark LaRue, an inmate of the Washington State Department of Corrections, brings this action pursuant to 42 U.S.C. § 1983 against James W. Fairman, warden, and Eugene Venegone, assistant warden, of the Joliet Correctional Center in Joliet, Illinois. LaRue, who was incarcerated in the Joliet Correctional Center at the time his cause of action accrued, claims that defendants denied him his right of access to the courts by deliberately interfering with his access to Washington state legal materials. He seeks a declaratory judgment, and compensatory and punitive damages.
Defendants have filed a motion for summary judgment, claiming that LaRue received adequate access to the courts; that he was not prejudiced by defendants' conduct; and that defendants are entitled to qualified immunity. LaRue has filed a response to defendants' motion.
Under Fed.R.Civ.P. 56(c), summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). Once the moving party has sustained its initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. The court must then view the entire record in the light most favorable to the nonmoving party. Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
LaRue, convicted and sentenced in the state of Washington, was transferred to the Joliet Correctional Center, pursuant to the Interstate Corrections Compact, Ill.Rev.Stat. ch 38, para. 1003-4-4 (1989), on May 20, 1988. While at Joliet, LaRue was appealing his conviction in the Washington state court of appeals.
Briefs in LaRue's appeal were due on November 24, 1988. On October 17, 1988, LaRue's Washington attorney, who was representing LaRue in his appeal,
moved to withdraw from the case, citing "Mr. LaRue's attitude and general hostility towards the firm." On January 4, 1989, the Washington court of appeals granted the motion to withdraw, and allowed LaRue thirty days to retain alternative counsel. On February 28, 1989, LaRue informed the Washington court of appeals that he was unable to retain counsel.
The court informed LaRue that his now pro se appeal would be dismissed for want of prosecution on April 5, 1989.
In a letter dated March 16, 1989, the Washington State Department of Corrections informed LaRue that it would send microfilmed Washington law books and a micro-fiche reader to the Joliet Correctional Center for use in his appeal. The letter provided that the state of Illinois had agreed to this procedure, and that the materials would arrive in Joliet "within two weeks."
On March 21 or 22, 1989, LaRue was called to assistant warden Romero's office. Romero told LaRue that his Washington legal materials were in warden Fairman's office and that they had "been there for a while now." Romero then called assistant warden Venegone, who told Romero that he (Venegone) had some of LaRue's legal materials in his office, but that he could not give them to LaRue until warden Fairman authorized their release. On March 24, 1989, LaRue was transferred to the Stateville Correctional Center. As he was leaving the Joliet Correctional Center, LaRue saw Fairman and asked about his legal materials, suggesting that the materials might be transported with him to Stateville in the same car. Fairman allegedly responded: "I'll take real good care of your stuff LaRue." LaRue was taken to Stateville, but did not receive his legal materials until after April 5, 1989. His appeal was dismissed for abandonment on April 7, 1989.
The Constitution "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." Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72 , 97 S. Ct. 1491 (1977). Prison authorities need not provide both, but they must provide one or the other or a comparable alternative, id. at 830-32, and the burden is on them to prove the adequacy of the means they provide. Campbell v. Miller, 787 F.2d 217, 225-26 (7th Cir.), cert. denied, 479 U.S. 1019, 93 L. Ed. 2d 724 , 107 S. Ct. 673 (1986).
Defendants contend that LaRue was provided with adequate access to the courts through his Washington counsel. According to defendants, LaRue, who could not get along with his Washington attorneys, is not entitled to a Washington law library in the alternative. Defendants cite several cases in support of the proposition that "no constitutional right exists mandating that the prisoner in the alternative be provided access to a law library should he choose to refuse the services of court-appointed counsel." United States ex rel. George v. Lane, 718 F.2d 226, 227 (7th Cir. 1983); Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987); see also Corgain v. Miller, 708 F.2d 1241, 1250 (7th Cir. 1983).
In United States ex rel. George v. Lane, supra, the trial court gave the plaintiff repeated warnings about the propriety of proceeding without the assistance of counsel. Nonetheless, the plaintiff knowingly and voluntarily chose to proceed on his own. In order to protect the plaintiff's interests, the trial court appointed a public defender to act as "stand-by counsel," to assist with the preparation of plaintiff's case. Moreover, the plaintiff had requested and been provided with numerous copies of relevant cases, as well as copies of Illinois Supreme Court Rules and Civil Practice Act, subpoena forms, McCormick on Evidence, and the Illinois Pattern Jury Instructions available to him at trial. 718 F.2d at 229. Similarly, in Howland v. Kilquist, supra, the ...