APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Civil No. 73-606.
Van Dusen, Gibbons, and Hunter, Circuit Judges.
HUNTER, III, Circuit Judge:
Appellant William Thomas Bryan brought this pro se civil rights action, pursuant to 42 U.S.C. § 1983, against various prison officials of the State Correctional Institution, Dallas, Pennsylvania (hereinafter referred to as "Dallas"), alleging that several aspects of the operation of the Resident Law Clinic at that institution violated his constitutional rights. After a consolidated hearing, the district court denied appellant's motion for a preliminary and permanent injunction and entered judgment in favor of appellees.*fn1 We affirm in part and reverse in part, and remand to the district court for further proceedings.
Dallas is a Pennsylvania Correctional Institution of approximately 800 inmates located in Luzerne County, Pennsylvania. Like several other Pennsylvania correctional institutions, it has established a Resident Law Clinic to assist inmates in preparation of many of their legal claims. The clinic maintains a law library and is staffed by four regular and two alternate inmates under the direction of two Correctional Counsellors, who are members of the institution's staff. One of the inmates (Gerald Rohland) serves as resident director of the clinic.
Specific prison regulations govern the activities of the law clinic. These regulations forbid the use of the clinic for "preparation of writs, damage suits, or civil suits against the institution or personnel of the institution"*fn2 and subject outgoing clinic mail to the inspection and approval of one of the coordinators.*fn3 However, inmates are not required to use the clinic services in their legal matters, but are free to operate outside of the clinic, thereby avoiding these restrictions on their types of actions and on their outgoing mail.
Appellant raises several contentions on appeal, but we believe that only a few of them have merit. Of principal concern to us are the allegations that various regulations and practices unconstitutionally restrict inmates' access to the courts. The question of such access to the courts has received considerable judicial attention in recent years. See, e.g., Procunier v. Martinez, 416 U.S. 396, 419-22, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974); Johnson v. Avery, 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969); Cochran v. Kansas, 316 U.S. 255, 62 S. Ct. 1068, 86 L. Ed. 1453 (1942); Ex Parte Hull, 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640 (1941); Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970), aff'd sub nom. Younger v. Gilmore, 404 U.S. 15, 30 L. Ed. 2d 142, 92 S. Ct. 250 (1971). These cases indicate that, although no particular mode of access to the courts is required, regulations or practices which can be construed as impeding such access are invalid. For example, absent reasonable alternatives, and subject only to reasonable restrictions, inmates must be allowed to assist other prisoners in the preparation of legal petitions. Johnson v. Avery, supra. Similarly, the Supreme Court has held that regulations absolutely prohibiting law students and para-professionals from interviewing inmates for purposes of providing legal assistance are invalid where alternative sources of legal assistance are inadequate. Procunier v. Martinez, supra 416 U.S. at 419-22. Also, the lack of a law library or of access to such a library might, absent alternatives, unreasonably restrict inmate access to the courts. Younger v. Gilmore, supra. See also Wolff v. McDonnell, 418 U.S. 539, 577-80, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). See generally, South Carolina Department of Corrections, The Emerging Rights of the Confined, ch. 2 (1972).
The district court found that, since appellant was not required to use the law clinic and could assert his own and others' claims on his own time, his rights were not abridged by the clinic's operation and regulations. It is unclear, however, whether the clinic with its regulations operate in fact in such a way as to impede access to the courts by prisoners at Dallas. For example, if substantially all legal business is conducted through the auspices of the law clinic (because it alone has access to the law library or because it employs all of the inmates with legal expertise) or if, as appellant alleges, the law clinic is the only "real avenue" available to inmates, then some of the restrictions would appear invalid. We therefore believe that remand is appropriate so that the district court can explore the practical consequences of these restrictions and the adequacy of non-clinic assistance.
Of the particular restrictions challenged, one of the most troublesome is the regulation prohibiting the clinic from assisting inmates in suits against the institution or prison officials. Appellees seek to defend this regulation on the ground that Johnson v. Avery permits "reasonable restrictions" on the activities of jailhouse lawyers. However, the Court in Johnson referred only to restrictions that are necessary to maintain prison discipline or to prevent abuses and exploitation of other inmates by those claiming to have legal skills. It noted, as examples of permissible regulations, those governing the times and places for the rendering of such services and restrictions on receiving consideration. At no point did it indicate that suits which might prove to be irritations to prison officials could be restricted, and its emphasis on the right to unimpeded access to the courts appears to undercut any claim that such restrictions may be valid.
Thus, the restriction preventing the clinic from assisting inmates in suits against the prison is valid only if there are, in the words of Johnson and Procunier, "reasonable alternatives" for obtaining assistance in such suits. Unlike the district court, we do not believe that the mere right to file such suits on one's own or to receive assistance from inmates during non-clinic hours is necessarily sufficient. Whether a reasonable alternative exists would depend on whether in fact inmates are disadvantaged by being foreclosed from obtaining assistance from the clinic.*fn4 Since a resident law clinic is the most logical place for an inmate to go with legal problems, and since such a clinic may well employ the inmates with the greatest legal expertise, the district court should closely scrutinize the effect of the regulation prohibiting clinic members from assisting in suits against prison officials. If there is no alternative and readily available means of obtaining assistance of at least equal caliber, the restriction must be invalidated. Not only would such a restriction have the effect of impeding access to the courts in certain types of cases, but it would appear to raise serious equal protection problems by discriminating against certain classes of inmate plaintiffs.
Another point that merits discussion is appellant's contention that inmate legal forms drawn up by him and by other prisoners must conform to institution standards before they are notarized and mailed to the courts. The dispute seems to have arisen over appellant's continued use of the phrase "atty: in propria persona (resident law clinic)," followed by his own signature, instead of "in propria persona (counsel waived)." (N.T. 60, 69, 145-147). In factual finding number 21, the district court found that "members of the Law Clinic may use any proper form they wish in legal pleadings for themselves or for other inmates in matters not done on Law Clinic time or under the identification of the Clinic." The district court did not resolve the conflict in testimony as to whether some clinic mail could not be notarized or mailed because of the form used,*fn5 apparently because it believed that such a finding would not affect the result. It stated:
There is no constitutional violation insofar as notary service was refused on documents written by Bryan for other inmates in the name of the Resident Law Clinic. The institutional authorities at Dallas have the right to proscribe the Plaintiff's use of the Resident Law Clinic ...