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Mathis v. Sauser (7/18/97), 942 P 2d 1117
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NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
GEOFFREY MATHIS, )
) Supreme Court No. S-6773
Appellant, )
) Superior Court No.
v. ) 3AN-93-9451 CI
)
FRANK SAUSER, Individually ) O P I N I O N
and in his capacity as )
Director of Institutions; ) [No. 4849 - July 18, 1997]
LARRY KINCHELOE, Individually )
and in his capacity as )
Superintendent, Spring Creek )
Correctional Center, Depart- )
ment of Corrections for the )
State of Alaska, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Geoffrey Mathis, pro se, Seward.
John K. Bodick, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti, Justice pro tem.
[Fabe, Justice, not participating.]
RABINOWITZ, Justice.
EASTAUGH, Justice, with whom COMPTON, Chief
Justice, joins, dissenting in part.

I. INTRODUCTION
At issue in this appeal is a state prison policy which
prevents inmates from possessing computer printers in their cells.
Geoffrey Mathis, an inmate whose printer was seized by prison
officials, filed a complaint alleging various constitutional
challenges to the policy. The superior court granted summary
judgment against Mathis. We reverse in part.
II. FACTS AND PROCEEDINGS
In 1993, Mathis was a minimum custody inmate at Spring
Creek Correctional Center (SCCC) in Seward. At that time, Frank
Sauser was the Director of Institutions for all Alaska correctional
facilities, and Larry Kincheloe was the Superintendent of SCCC.
In the fall of 1993, Kincheloe, in cooperation with
Sauser and Department of Corrections (DOC) Deputy Director Allen
Cooper, established a new Standard Operating Procedure (SOP)
designed to restrict the personal property inmates are allowed to
possess in their cells. The SOP specifically prohibits the
ownership of computers, except for the laptop variety, as well as
all printers, word processors, memory typewriters, modems, and
scanners. A "grandfathered property"provision allows the
continued possession of certain otherwise unauthorized computers,
but no printers are permitted unless the Director of Institutions
grants an exemption from the policy based on an individual
determination of special need. [Fn. 1]
The official rationale given by the State for the
restrictive property scheme is as follows:
The DOC . . . has significant interests
in controlling the amount and nature of property prisoners possess
in prison both for security and administrative reasons. The
uncontroverted affidavit of Deputy Director Allen Cooper
established that prisoner possession of computer equipment
jeopardizes facility security. Prisoners can maintain secret files
on their computers with information regarding escape plans, secret
organizations, and addresses of staff members or victims. Printers
allow the dissemination of such information to other prisoners .
. . . Prisoners can also use their computers and printers to
perpetrate new crimes of fraud, to contact victims of crime, or
find new victims such as in the case of sex offenders.
Prisoners also use their computers and
word processing equipment to produce and sell legal work which
results in the disruption of the orderly operation of prison
facilities. . . . Finally, prisoners have been utilizing computers
to harass prison officials at Spring Creek with frivolous
litigation and large amounts of paperwork. Computer generated form
pleadings with a "fill in the blank"format are widespread and
facilitate the filing of meritless legal cases which results in the
waste of significant staff time and state resources.
In August 1993, Sauser approved the new SOP for
implementation at SCCC, and inmates were notified of the changed
policy by memo. Soon after, Mathis filed a grievance protesting
the impending seizure of his printer. He alleged that the
anticipated action violated his constitutional rights and, in
particular, denied him access to courts.
The DOC investigating officer concluded that the SOP was
valid [Fn. 2] and therefore denied Mathis's grievance. Kincheloe
concurred with the investigating officer's determination. Mathis
appealed his grievance to Director Sauser, asserting that his
printer should have been "grandfathered"under the policy.
Responding for Sauser, Deputy Director Cooper denied Mathis's
appeal on the ground that the SOP does not allow any inmate to
possess a printer in his cell. [Fn. 3] On November 3, 1993, the
policy went into effect, and Mathis's printer was seized.
After being notified of the SOP, Mathis filed a civil
rights complaint against Sauser and Kincheloe as well as a motion
for a preliminary injunction to prevent implementation of the
policy directive. The superior court denied the motion for an
injunction, and Mathis filed an amended complaint. In it, he
alleged that the SOP was improperly promulgated and that the
printer policy violated his rights to due process, equal
protection, and rehabilitation. Mathis also claimed that the SOP
denied him access to the courts.
The parties cross-moved for summary judgment, and the
superior court granted judgment for Sauser and Kincheloe. Mathis
appeals from this judgment.
III. DISCUSSION
A. Standard of Review
This court reviews an award of summary judgment de novo.
Farmer v. State, 788 P.2d 43, 46 n.8 (Alaska 1990). "[S]ummary
judgment is affirmed if the evidence in the record fails to
disclose a genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Dayhoff v. Temsco
Helicopters, Inc., 772 P.2d 1085, 1086 (Alaska 1989). In deter-
mining whether there is any genuine issue of material fact, the
court must view the facts in the light most favorable to the non-
moving party. Willner's Fuel Distributors, Inc. v. Noreen, 882
P.2d 399, 403 n.7 (Alaska 1994).
In deciding questions of law, this court applies its
independent judgment and adopts the rule of law that is most
persuasive in light of precedent, reason and policy. Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979).
B. Right of Access to the Courts
Mathis asserts that the SOP violates the Alaska
Constitution because it curtails inmates' access to the courts.
The question before us is not whether Mathis possesses a
constitutional right to have a printer in his cell. [Fn. 4]
Rather, we must determine whether Mathis, under Alaska's
constitution, has a constitutionally protected interest in not
being deprived of his printer if the rationale behind such
deprivation is to restrict his right of access to the courts. Our
inquiry is framed by the record in this case, which suggests that
the SOP may have been promulgated to address the "problem"of pro
se litigation on the part of SCCC inmates.
We start from the proposition that "an inmate's right of
unfettered access to the courts is as fundamental a right as any
other he may hold. All other rights . . . are illusory without
it." Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973). [Fn. 5]
This right of access was first vindicated by the United States
Supreme Court in Ex parte Hull, 312 U.S. 546 (1941). At issue in
that case was a regulation promulgated by Michigan prison officials
requiring that inmates submit all legal documents for approval to
the prison's institutional welfare office and then to the parole
board's legal investigator. The Supreme Court held the regulation
invalid, noting that the propriety of legal materials is for a
"court alone to determine." Id. at 549 (emphasis added). Ex parte
Hull essentially established the principle that prison officials
cannot position themselves as "gatekeepers"for the courts.
This principle endures today. Subsequent decisions of
the Supreme Court of the United States have expanded the reach of
Ex parte Hull, focusing on an inmate's constitutional right to be
free from state interference with his access to the court system.
Over the decades the Supreme Court has repeatedly invalidated
regulations which prohibited inmates from advising or assisting one
another in the preparation of habeas corpus petitions and civil
rights complaints. See, e.g., Johnson v. Avery, 393 U.S. 483
(1969); Wolff v. McDonnell, 418 U.S. 539 (1974). [Fn. 6]
An inmate's right to be free of state interference with
his right of access to the court system is not absolute. Under
certain circumstances, a prison policy which is grounded in a
legitimate penological objective will incidentally restrict court
access. Where the purpose of the regulation is permissible and
there is a reasonable relationship between the policy goal and the
ends chosen to achieve it, courts will generally defer to the
judgment of prison officials. [Fn. 7]
Despite judicial respect for the very real problems of
prison administration that exist, correctional officials are none-
theless required to advance a legitimate penological interest to
justify any policy that may have the effect of impairing access to
courts. See, e.g., Skelton v. Pri-Cor, Inc., 963 F.2d 100, 104
(6th Cir. 1991), cert. denied, 503 U.S. 989 (1992); Brewer v.
Wilkinson, 3 F.3d 816, 824-25 (5th Cir. 1993). In cases where the
burden on access is particularly onerous, a more heightened level
of scrutiny is appropriate. Thus, the more drastically a given
prison policy or action restricts access to the courts, the more
compelling must be the administrative justification for its
enactment. [Fn. 8]
As we have suggested, when a challenged regulation
curtails an inmate's right of access, a reviewing court must
determine that the given policy rationale is legitimate and that
there is a sufficiently close relationship between this articulated
rationale and the selected means of achieving it. The court must
further ascertain that the stated purpose behind the regulation is
not a subterfuge for any impermissible motive on the part of those
responsible for its enactment. It is to this issue of motive that
we now turn.
It has been observed that "intentional obstruction of a
prisoner's access to the courts is precisely the sort of oppression
that the Fourteenth Amendment and Section 1983 are intended to
remedy." Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). The
relevance of intent was similarly recognized in Harris v. Ostrout,
65 F.3d 912 (11th Cir. 1995), where the court noted that
the First Amendment grants prisoners a limited
right of access to the courts. The state may not burden this right
with practices that are not reasonably related to legitimate
penological objectives, nor act with the intent of chilling that
First Amendment right.
Id. at 916 (citations omitted, emphasis added). These holdings may
be viewed as elaborations on the fundamental principle established
in Ex parte Hull that a state and its officers may not usurp the
court's function by pre-judging in any way the merits of an
inmate's legal claims.
Thus, even when state officials deem a prisoner's pro se
legal activities frivolous, the Constitution of Alaska precludes
any action aimed at impeding an inmate's access to the courts.
Here our study of the record reveals the distinct likelihood that
interfering with inmates' access to the courts was a primary
motivation behind the SOP restriction on computer printers. In a
sworn affidavit, Deputy Director Cooper admitted that one of the
problems that the regulation in question was intended to address
was the fact that
prisoners have been utilizing computers to
harass prison officials at Spring Creek with frivolous litigation
and paperwork. Computer generated form pleadings with a "fill in
the blank"format are widespread and facilitate the filing of
meritless legal cases which results in the waste of significant
staff time.
Significantly, the Attorney General's Office placed its imprimatur
on this legally impermissible justification by adopting the ration-
ale in its briefing before this court.
The policy which Mathis challenges here presents, under
the circumstances, an extremely low level threat to the effective-
ness of his access to the courts. No credible argument could be
made that having a computer printer present in every cell is
necessary to provide reasonable access to the courts. As such,
virtually any legitimate penological justification for the policy
would suffice.
Our conclusion respects important distinctions between
the functions of the executive and the judicial branches of our
government. Just as this court does not interfere in the
decisionmaking processes of correctional institutions seeking to
achieve legitimate penological goals, we cannot accept the prison
administration's determination that "frivolous"and "meritless"
inmate litigation must be curtailed, for these concerns rest
primarily with the judiciary.
We are cognizant of the "actual injury"requirement
adopted by various federal circuit courts [Fn. 9] and, recently,
the United States Supreme Court. Lewis v. Casey, 116 S.Ct. 2174,
2179 (1996). These decisions require that inmates who allege that
inadequate prison facilities limit their access to the courts must
demonstrate that they have somehow been prejudiced by these
shortcomings. Thus, Lewis holds:
It is for the courts to remedy past or
imminent official interference with individual inmates'
presentation of claims to the courts; it is for the political
branches of the State and Federal Governments to manage prisons in
such fashion that official interference with the presentation of
claims will not occur. Of course the two roles briefly and
partially coincide when a court, in granting relief against actual
harm that has been suffered, or that will imminently be suffered,
by a particular individual or class of individuals, orders the
alteration of an institutional organization or procedure that
causes the harm.
Id. at 617.
We conclude that the case before us is unaffected by the
holding of Lewis and we decline to impose an "actual injury"
requirement on Mathis. He need only show that the challenged
policy was motivated by an intent to curtail access to the courts.
At issue here is not an allegation that SCCC is providing inmates
with insufficient tools to ensure meaningful access to courts,
thereby implicating the State's affirmative duties in this regard.
[Fn. 10] Rather, it is Mathis's claim of intentional
administrative obstruction, of "past or imminent official
interference with individual inmates' presentation of claims to the
courts,"id., which lies at the heart of this appeal.
The record before us demonstrates the existence of a
genuine issue of material fact as to the constitutionality of the
policy in question. Once the State has acknowledged that it
intended to interfere with inmates' access to the courts, all other
supplementary justifications should be carefully scrutinized for
legitimacy. [Fn. 11] Unless the challenged policy is supported by
a valid penological interest, it must be held invalid. We
therefore reverse the superior court's grant of summary judgment
against Mathis on his right of access claim under Alaska's
constitution, and remand for further proceedings consistent with
this opinion.
We now turn to the remainder of Mathis's challenges.
C. Promulgation of the SOP
Mathis alleges that the SOP was improperly promulgated.
We disagree.
In 1990 the Commissioner of the DOC established a policy
dealing with standard operating procedures. [Fn. 12] This document
provided that "[e]ach facility shall develop and maintain the SOPs
necessary to implement department policies,"and stated that "[n]o
SOP may be implemented prior to director approval."[Fn. 13]
The SOP at issue here was developed by SCCC and approved
by Sauser. Accordingly, we conclude that the policy was properly
promulgated. The superior court's resolution of this issue is
therefore affirmed.
D. Equal Protection of Law
Though he challenges the DOC policy on equal protection
grounds, Mathis has produced no evidence of discrimination. In his
amended complaint he alleges that inmates at other institutions
have been allowed to keep their printers. There is no evidence to
support this contention, however, or to suggest that prisoners at
other institutions are similarly situated for purposes of equal
protection analysis. Indeed, each DOC facility must formulate
policies consistent with its particular mission and security needs.
Inmates at SCCC can legitimately be treated differently than
inmates at other institutions provided that such treatment is
rationally related to legitimate DOC objectives. See Massachusetts
Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976); Coakley v.
Murphy, 884 F.2d 1218, 1222 (9th Cir. 1989).
Mathis also alleges that similarly situated inmates at
SCCC are being treated differently. Selective enforcement of a
statute, regulation or policy violates the equal protection clause
if it is part of a deliberate and intentional plan to discriminate
based on an arbitrary or unjustifiable classification. Barber v.
Municipality of Anchorage, 776 P.2d 1035, 1040 (Alaska 1989), cert.
denied, 493 U.S. 922 (1989). Mathis has produced no evidence of
any such impermissible selective enforcement on the part of prison
officials. [Fn. 14]
The superior court's award of summary judgment on the
equal protection claims is therefore affirmed.
E. Right to Rehabilitation
Mathis correctly asserts that he has an interest in being
rehabilitated. See Ferguson v. Dep't of Corrections, 816 P.2d 134,
139 (Alaska 1991) ("[P]risoners have an enforceable interest in
continued participation in rehabilitation programs."). However, he
has not argued that he is involved in any rehabilitative program
requiring the use of a printer in his cell. Nor has Mathis
produced any evidence to support the proposition that the policy in
question implicates his rehabilitation. The superior court's award
of summary judgment on this issue was therefore proper.
 F. Mathis's Motions for Discovery [Fn. 15]
Mathis argues that he was denied adequate discovery.
The parties agree that the response to Mathis's repeated discovery
requests was that the documents he requested
are available for copying and inspection at
Spring Creek Correctional Center. Copies will be made at
plaintiff's expense and upon payment in advance. Plaintiff should
contact his institutional probation officer to make arrangement to
review such documents.
Mathis was apparently allowed to inspect the documents
without charge. If he declined to pursue any inspection, he has in
essence waived this issue. If he inspected the documents but did
not copy them, he has neither provided explanation of why he could
not make the necessary copies nor indicated the importance of any
particular document. Moreover, since Sauser and Kincheloe are
entitled to judgment as a matter of law on all Mathis's claims but
one, any evidence Mathis might have obtained related to these
claims would not have changed the outcome of his case. We cannot
conclude that the lack of discovery prejudiced Mathis's prosecution
of these claims.
On remand Mathis should be given a reasonable opportunity
to pursue discovery of the factual issues relevant to his right of
access challenge.
 G. Sauser and Kincheloe's Entitlement to Qualified Immunity
Given our disposition of Mathis's right of access claim,
we address Sauser and Kincheloe's assertion that they are entitled
to qualified immunity from civil damages.
Government officials performing discretionary functions
enjoy qualified immunity from civil damages if their conduct does
not violate "clearly established"constitutional rights of which a
reasonable person would have known at the time the alleged
violation occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th
Cir. 1989). In determining whether qualified immunity exists, the
relevant inquiry is whether a reasonable official could have
believed the challenged conduct was lawful in light of clearly
established law and the facts of the case. Anderson v. Creighton,
483 U.S. 635, 639 (1987). More specifically, Justice Scalia, writ-
ing for the Court in Anderson, said:
It should not be surprising, therefore, that
our cases establish that the right the official is alleged to have
violated must have been "clearly established"in a more particu-
larized, and hence more relevant, sense: The contours of the right
must be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right. This is not to
say that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Id. at 640 (citation omitted).
Regarding Mathis's claims for civil damages based on
violation of the right of access to the courts, we hold that Sauser
and Kincheloe are entitled to the protection of qualified immunity
under the Anderson v. Creighton test. [Fn. 16] Our holding is
based on the recognition that federal and state courts had, at the
time the 1993 SOP was promulgated, upheld rules intended to make
access to the courts more difficult. [Fn. 17] In short, the
contours of the right of access to the courts implicated here had
not been clearly established to the degree that a reasonable
official would have understood that what he did violated that
right. [Fn. 18]
IV. CONCLUSION
We AFFIRM the superior court's grant of summary judgment
to Sauser and Kincheloe on all of Mathis's claims with the
exception of the denial of his right to access to the courts claim.
As to this claim, the superior court's entry of summary judgment is
REVERSED and the declaratory and injunctive relief aspects of
Mathis's claim are REMANDED to the superior court for further
proceedings not inconsistent with this opinion.EASTAUGH, Justice,
with whom COMPTON, Chief Justice, joins, dissenting in part.
Although I agree with the remainder of the court's
opinion, I disagree with Part III.B's description and resolution of
Mathis's right of access claim. In my view, an inmate has no
constitutional right to have an in-cell printer. He must
demonstrate injury to establish standing to challenge an executive
branch corrections policy that allegedly denies him access to the
courts.
1. STANDING
The court declines, op. at 12-13, to follow the United
States Supreme Court's latest inmate access case, Lewis v. Casey,
116 S. Ct. 2174 (1996). The Court there held that inmates at a
prison facility must show actual injury in order to bring a denial
of access claim. Id. at 2179. The Court explained that an inmate
must show that the alleged shortcomings in the prison facilities
"hindered his efforts to pursue a legal claim." Id. at 2180.
This requirement derives from the doctrine of standing,
which prevents courts from interfering with the political branches
of government. Id. at 2179.
It is the role of courts to provide relief to
claimants, in individual or class actions, who have suffered, or
will imminently suffer, actual harm; it is not the role of courts,
but that of the political branches, to shape the institutions of
government in such fashion as to comply with the laws and the
Constitution. In the context of the present case: It is for the
courts to remedy past or imminent official interference with
individual inmates' presentation of claims to the courts; it is for
the political branches of the State and Federal Governments to
manage prisons in such fashion that official interference with the
presentation of claims will not occur. Of course the two roles
briefly and partially coincide when a court, in granting relief
against actual harm that has been suffered, or that will imminently
be suffered, by a particular individual or class of individuals,
orders the alteration of an institutional organization or procedure
that causes the harm. But the distinction between the two roles
would be obliterated if, to invoke intervention of the courts, no
actual or imminent harm were needed, but merely the status of being
subject to a governmental institution that was not organized or
managed properly. If -- to take another example from prison life
-- a healthy inmate who had suffered no deprivation of needed
medical treatment were able to claim violation of his
constitutional right to medical care, see Estelle v. Gamble, 492
U.S. 97, 103, 97 S.Ct. 285, 290 50 L.Ed.2d 251 (1976), simply on
the ground that the prison medical facilities were inadequate, the
essential distinction between judge and executive would have
disappeared: it would have become the function of the courts to
assure adequate medical care in prisons.
Id.
This court now approves judicial interference with a
Standard Operating Procedure (SOP) that defines "the proper and
necessary steps required to account and process an inmate's
property,"including the permissible items of personal property in
possession and property transfers. This seems to be an unwarranted
and unwise judicial interference with basic prison policy, which
should be avoided absent a demonstration of impairment of a
constitutional right. [Fn. 1] See Lewis, 116 S. Ct. at 2179; see
also id. at 2186, 2196-200 (Thomas, J., concurring) ("State prisons
should be run by the state officials with the expertise and the
primary authority for running such institutions.").
Although our standing doctrine is arguably less rigorous
than the corresponding federal doctrine, our opinions express the
same sort of concerns discussed in Lewis concerning judicial
restraint and advisory opinions. See Bowers Office Prods., Inc. v.
University of Alaska, 755 P.2d 1095, 1097 (Alaska 1988) (Standing
"is based on the principle that courts should not resolve abstract
questions or issue advisory opinions."); Falcon v. Alaska Pub.
Offices Comm'n, 570 P.2d 469, 475 (Alaska 1977) (Standing in Alaska
"is essentially a judicial rule of self-restraint."). A "'party
asserting standing [must demonstrate] a sufficient 'personal stake'
in the outcome of the controversy to ensure the requisite
adversity.'" Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 525
(Alaska 1993) (citation omitted). In Municipality of Anchorage v.
Leigh, 823 P.2d 1241, 1245 (Alaska 1992), this court decided that
a statute was not unconstitutional as applied to Leigh, and
declined to consider whether it might be unconstitutional when
applied to a hypothetical claimant. We stated: "The United States
Supreme Court summarized the rule well. 'A party has standing to
challenge the constitutionality of a statute only insofar as it has
an adverse impact on his own rights.'" Id. at 1245 n.11 (quoting
with approval County Court of Ulster v. Allen, 442 U.S. 140, 154-55
(1979)).
Some measure of this court's past concern about judicial
review of prisoner disputes is reflected in opinions holding that
the superior court lacks appellate jurisdiction over a wide range
of inmate claims. See, e.g., Hays v. State, 830 P.2d 783, 784
(Alaska 1992) ("[T]he superior court does not ordinarily have
jurisdiction over appeals from prison grievance proceedings"absent
issues of "constitutional magnitude."); McGinnis v. Stevens, 543
P.2d 1221, 1236 & n.45 (Alaska 1975) ("[A] right to an automatic
appeal"is not "a matter of due process, required by Alaska's
constitution,"but "[i]f fundamental constitutional rights are
alleged to be abridged in disciplinary proceedings, it would be the
duty of the court to inquire into the allegations."). See also
Brandon v. State, Dep't of Corrections, ___ P.2d ___, Op. No. 4829
at 5 (Alaska, June 6, 1997) (holding that the superior court had
jurisdiction to hear an administrative appeal of a DOC action
involving an alleged substantial impairment of a "fundamental
constitutional right,"Brandon's right to rehabilitation).
This court has not abandoned a requirement of injury to
establish standing to challenge DOC's policies. In Hays, the
inmate claimed that his disciplinary dismissal from a prison
employment program denied him his constitutionally protected right
to participate in rehabilitation programs. In deciding that there
was no subject matter jurisdiction over Hays's appeal, because
there was no issue of constitutional magnitude, the court found it
important that Hays "was not denied all rehabilitative
opportunities." 830 P.2d at 785. The court thus looked at whether
the discipline actually violated Hays's right to rehabilitation.
[Fn. 2]
In this case, Mathis has not suffered any actual or
imminent harm. His computer printer was seized in November 1993.
His subsequent filings in state court have been legible and
typewritten. Moreover, his appeal briefs have satisfied the
appellate rules and were typewritten. See Alaska R. App. P. 212,
513.5. His opening brief was twenty-seven pages and cited forty
cases. Mathis was involved in another lawsuit, but he has not
shown that the SOP harmed him in that case. The court seems to
recognize that the SOP has not actually impaired Mathis's access
right:
The policy which Mathis challenges here
presents, under the circumstances, an extremely low level threat to
the effectiveness of his access to the courts. No credible
argument could be made that having a computer printer present in
every cell is necessary to provide reasonable access to the courts.
Op. at 11.
The court declines to follow Lewis, op. at 12-13, and
does not explain how Alaska's own iteration of the standing
principle has been satisfied. It apparently concludes that an
invalid basis for the restriction (a desire to chill "meritless"
prisoner litigation) is so offensive, requiring close scrutiny of
"all other supplementary justifications"for the policy, that no
actual injury is required for standing. Op. at 13. In my view,
this illegitimacy of purpose would render the absence of actual
impairment irrelevant only if there were a constitutional right to
have an in-cell printer. See infra Section II. If there is no
such right, traditional notions of standing should preclude
Mathis's judicial attack on this executive branch policy.
Absent some justification for adopting a more protective
substantive standard for resolving issues of inmate rights of
access, I would hold that Mathis does not have standing to attack
the SOP for the policy reasons discussed in Lewis.
2. RIGHT TO PRINTER IN CELL
Although the court states that the question is not
whether Mathis has a constitutional right to an in-cell printer,
op. at 5, 11, I think the issue as described by the court
inevitably implicates that question. The court states that we must
instead determine whether Mathis "has a constitutionally protected
interest in not being deprived of his printer if the rationale
behind such deprivation is to restrict his right of access to the
courts." Op. at 6. According to the court, "unless the challenged
policy is supported by a valid penological interest, it must be
held invalid." Op. at 13.
There is no question that Mathis has a constitutionally
protected right of access to the courts. [Fn. 3] See, e.g., Bounds
v. Smith, 430 U.S. 817 (1977). The broad question presented is
whether the SOP has impaired that right. Absent any showing that
Mathis's access right has been materially impaired, the court's
holding also necessarily assumes that Mathis has a constitutional
right to have a printer in his cell. Apparently the court assumes
that, if the SOP is not vindicated following a fact hearing on
remand, Mathis's printer will be returned to him for reinstallation
in his cell.
I think the legitimacy of DOC's purpose is irrelevant
unless and until Mathis shows that his access has been impaired.
He has no constitutionally protected interest in adjudicating the
validity of a policy that does not harm him. Any genuine fact
dispute about whether there is a valid penological purpose behind
the SOP is not yet material. Resolving that dispute will
materially improve or restore Mathis's protected right of access
only if a court also determines that Mathis has not otherwise been
provided adequate facilities and opportunities. If the SOP did not
in fact materially impair Mathis's right of access, I do not see
why our courts should resolve an immaterial fact dispute, however
genuine it may be. Such a practice wastes judicial resources.
More importantly, it encourages needless judicial interference with
the affairs of another branch of state government. See Lewis, 116
S. Ct. at 2186, 2196-200 (Thomas, J., concurring). I say
"needless"because if the SOP does not in fact prevent Mathis from
adequately addressing the courts, holding that it is invalid
becomes a purely advisory exercise of judicial power. [Fn. 4]
Moreover, a narrow inquiry into the validity of the SOP
fails to address the fundamental question: whether DOC has
materially impaired access rights. That question cannot be
answered without considering what other access facilities and
opportunities DOC provides. Even if the SOP had an unarguably
valid purpose, depriving prisoners of in-cell printers would in
fact deprive them of access unless alternative adequate facilities
and opportunities are available. Since the real question here is
access, and not purpose, nothing useful is to be gained by
remanding in the absence of any genuine dispute about whether
Mathis's access has in fact been impaired.
Thus the question posed by the court necessarily
presupposes that there can be a constitutional right to have a
printer in a cell, regardless of what other access opportunities
the prison provides. Before we can remand for resolution of a
constitutional issue in the absence of any demonstration of injury,
we must first decide whether the constitution entitles Mathis to an
in-cell printer. See Vigliotto v. Terry, 865 F.2d 1131, 1133 (9th
Cir. 1989) (temporary deprivation of legal materials does not rise
to a constitutional deprivation).
We should resolve this narrow legal issue by holding that
Mathis does not have a constitutional right to a printer in his
cell, and thus that the SOP does not violate the Alaska
Constitution. Although reported Alaska cases have not examined how
typewriters and computers relate to a prisoner's right of access to
the courts, state and federal courts have considered similar
issues. The court's opinion has collected representative cases.
Op. at 5-6 n.4. They make it clear that a prisoner has no right to
have a typewriter or word processor in his or her cell. See, e.g.,
Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (no
constitutional right to memory typewriter); Sands v. Lewis, 886
F.2d 1166, 1171 (9th Cir. 1989) (disallowing challenge to prison
prohibition on memory typewriters unless "actual injury"alleged);
Jackson v. State, 885 F.2d 639, 641 (9th Cir. 1989) (upholding
prison policy prohibiting use of personal typewriters in library;
"no constitutional right to the use of a typewriter"). I would
follow that authority and hold that Mathis has no right to have an
in-cell printer.
SCCC provides typewriters in the law library and
computers in the education department for prisoners' use. Since
pleadings and briefs need not be typewritten in Alaska, Mathis has
no absolute need for a typewriter or a printer at all, let alone
one in his cell. See Alaska R. Civ. P. 76(h) (the rule does not
explicitly allow handwritten documents, but the judge may depart
from the rule in cases of emergency or necessity); Alaska R. App.
P. 513.5(b)(2).
We need not examine the justifications behind the prison
SOP, because a policy restricting computer printers in an inmate's
cell does not violate the inmate's constitutional right of access.
See Taylor, 29 F.3d at 40 (not necessary to consider justifications
of prison policy because no constitutional rights infringed).
3. LEGITIMACY OF PENOLOGICAL INTERESTS
The existence of ostensibly legitimate reasons for the
SOP should be irrelevant, because Mathis has not demonstrated any
actual impairment. I nonetheless feel compelled to mention DOC's
reasons both to correct any impression derived from the court's
opinion that these are merely "supplementary"or patently
pretextual justifications, and to confirm why we should not
dispense here with a demonstration of actual impairment before we
require an unrewarding judicial inquiry into DOC's intentions.
DOC's remaining reasons for the SOP are set out in the affidavit of
Allen Cooper, DOC's Deputy Director of Institutions:
We intend to prohibit computers and other
electronic equipment such as word processors and memory typewriters
for a variety of reasons. First, prisoner possession of computer
equipment leads to significant administrative problems. The
equipment takes up too much space in prisoners cells particularly
if the cell is occupied by two prisoners. Special consideration
would be required to make sure that prisoners with electronic
equipment would not be bunked together which would create
significant administrative problems. Similarly, the possession of
full-size computer equipment makes it difficult and expensive to
transport prisoners and this equipment between institutions.
Issues arise as to how permanent a transfer has to be to warrant
transporting the computer equipment to a new facility. The
equipment is also at great risk to be damaged if transported. If
not transported, the equipment would have to be stored.
Prisoner possession of computer equipment
also jeopardizes facility security. Prisoners can use their
computers and word processing equipment to sell legal work which
ultimately leads to the disruption of the orderly operation of DOC
facilities. Prisoners who produce legal work can use this leverage
to exert control over fellow prisoners who are in need of legal
work. Finally, prisoners have been utilizing computers to harass
prison officials at Spring Creek with frivolous litigation and
paperwork. Computer generated form pleadings with a "fill in the
blank"format are widespread and facilitate the filing of meritless
legal cases which results in the waste of significant staff time.
DOC's most compelling justification was concern with the
size and amount of property that inmates kept in their cells. The
SOP restrictions on inmate property are consistent with this goal:
The size of the boombox will be no larger
than will fit in a normal property box . . . .
b. Televisions will be limited to a 13-inch
screen. Video Cassette Recorders (VCRs) are not allowed.
c. Inmates will be allowed to have one (1)
computer of the "lap-top"type. The computer shall be no larger
than 12"x 15"and will be of a size that can fit into a property
transfer box. . . .
d. Wind or percussion instruments will not
be allowed, with the exception of one (1) harmonica per inmate.
e. Live plants will be limited in the
housing unit to one (1) plant per inmate; the plant will be no
taller than twenty-five (25) inches and will be potted in a pot no
larger than six-inch (6").
The record memoranda implementing the property SOP are
also consistent with a goal of reducing the amount of property in
a cell.
Applying the court's "sliding scale"of scrutiny, and
absent any showing that Mathis's access to the courts was impaired,
I would hold that legitimate penological interests justify the SOP.
I would therefore affirm the grant of summary judgment against
Mathis on the right of access issue.
FOOTNOTES
Footnote 1:
1 The SOP was viewed as a model for a statewide policy
which would apply to all DOC facilities.
Footnote 2:
2 The investigation report states: "Since Director Sauser
has signed this SOP and it is done per policy, this investigator
feels that no further action should be taken."
Footnote 3:
3 Deputy Director Cooper's denial of Mathis's appeal states
that the DOC "has made available the equipment in the law library
for your legal endeavors and has made available sufficient
computers and printers in the education area for your educational
needs." The equipment available for the legal needs of inmates is
limited to typewriters.
Footnote 4:
4 Though this court has not specifically addressed how
typewriters and computers relate to an inmate's right of access to
the court system, several state and federal courts have considered
the issue and held that an inmate has no constitutional right to
possess a typewriter or computer in his cell. See Taylor v.
Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (no constitutional right to
memory typewriter); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.
1989) (disallowing challenge to prison prohibition on memory
typewriters unless "actual injury"alleged); Jackson v. Arizona,
885 F.2d 639, 641 (9th Cir. 1989) (upholding prison policy
prohibiting use of personal typewriters in library; "no
constitutional right to the use of a typewriter"); American Inmate
Paralegal Assoc. v. Cline, 859 F.2d 59, 61 (8th Cir. 1988) (no
constitutional right of access to typewriter), cert. denied, 488
U.S. 996 (1988); Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir.
1978) (no protected right to use typewriter); Wolfish v. Levi, 573
F.2d 118, 132 (2d Cir. 1978) (no constitutional right to
typewriters), rev'd on other grounds, 441 U.S. 520 (1979);
Eisenhardt v. Britton, 478 F.2d 855 (5th Cir. 1973) (same); Knight
v. Superior Court, 779 P.2d 1290, 1295-96 (Ariz. App. 1989) (noting
that while State must supply prisoner with materials to prepare
legal papers, need not supply typewriter); People v. Marlowe, 563
N.Y.S.2d 272, 273-74 (N.Y. App. Div. 1990) (prisoner not entitled
to have typewriter provided), appeal denied, 573 N.E.2d 585 (1991).
Footnote 5:
5 See McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (right
to file a court action is fundamental because it is preservative of
all rights).
It has been said that rights without remedies are no
rights at all. Woods v. Interstate Realty Co., 337 U.S. 535, 538
(1949).
Footnote 6:
6 Another line of Supreme Court cases in this area has
elaborated on the State's affirmative obligation to make an
inmate's constitutional right of access "adequate, effective, and
meaningful." Bounds v. Smith, 430 U.S. 817, 822 (1977) (requiring
states to provide inmates with adequate law libraries or assistance
from persons trained in the law). See also Griffin v. Illinois,
351 U.S. 12 (1956) (invalidating rules requiring indigent criminal
defendants to pay for trial transcripts or fees necessary to have
appeals or habeas petitions heard); Douglas v. California, 372 U.S.
353 (1963) (requiring states to provide assistance of counsel on
appeal as of right for all indigent criminal defendants).
We need not address here the scope of a State's
affirmative duty to ensure meaningful access to the courts since
Mathis's appeal implicates the right to be free of State abridgment
of this fundamental right.
Footnote 7:
7 The Supreme Court held in Turner v. Safley, 482 U.S. 78
(1987), that a prison regulation impinging on inmates'
constitutional rights is nonetheless valid "if it is reasonably
related to legitimate penological interests." Id. at 89. The
Turner court justified such a deferential standard as necessary
if "prison administrators . . ., and not the
courts, [are] to make the difficult judgments
concerning institutional operations."
Subjecting the day-to-day judgments of prison
officials to an inflexible strict-scrutiny
analysis would seriously hamper their ability
to anticipate security problems and to adopt
innovative solutions to the intractable
problems of prison administration.
Id. (citation omitted).
Footnote 8:
8 We have adopted conceptually similar approaches to
constitutional challenges in the equal protection and due process
contexts. See, e.g., Gonzales v. Safeway Stores, Inc., 882 P.2d
389, 397 (Alaska 1994); State v. Anthony, 810 P.2d 155, 158 (Alaska
1991).
Footnote 9:
9 See, e.g., Sands v. Lewis, 886 F.2d 1166, 1169-71 (9th
Cir. 1989).
Footnote 10:
10 See Sands, 886 F.2d at 1171 (holding that prejudice or
actual injury is not required when dealing with the "core
requirements under Bounds"); Peterkin v. Jeffes, 855 F.2d 1021,
1041 (3d Cir. 1988) (The reasoning behind the actual injury
requirement is that "not every item . . . capable of being linked
to a state's provision of legal assistance to prisoners
automatically implicates the constitutional right of access to the
courts.").
Footnote 11:
11 More particularly, once the institution admits that the
policy in question was intended to interfere with inmates' access
to the courts, a reviewing court's posture shifts. The trial court
must be satisfied that the proffered interests are constitutionally
valid, and that these interests indeed motivated the prison
administration to promulgate its policy.
Footnote 12:
12 The Commissioner is granted the power to carry out the
duties of the DOC and to adopt regulations implementing Chapter 30,
Title 33 of the Alaska statutes. AS 44.28.030, AS 33.30.021.
Footnote 13:
13 Policies and procedures of state agencies need not
conform to formal requirements of the Administrative Procedure Act.
Messerli v. Dep't of Natural Resources, 768 P.2d 1112, 1117-18
(Alaska 1989).
Footnote 14:
14 Mathis claims that because he needed prior approval from
prison officials before he could have his computer printer sent to
him at the institution, a protected interest in the printer was
created. This argument is devoid of merit.
We additionally note that Mathis's proprietary interest
in his printer survived the SOP directive, since despite the
property policy he retained the power to disburse his printer
outside SCCC. See Williams v. Meese, 926 F.2d 994, 998 (10th Cir.
1991).
Footnote 15:
15 We review a superior court's rulings on discovery for an
abuse of discretion. Gunnerud v. State, 611 P.2d 69, 72-73 (Alaska
1980).
Footnote 16:
16 Based on our disposition of the issues in this appeal,
Mathis's right of access challenge is his only surviving claim.
Qualified immunity is not available in connection with Mathis's
claims for declaratory and injunctive relief.
Footnote 17:
17 See authorities cited in note 4, supra.
Footnote 18:
18 We have concluded that it is unnecessary to address any
remaining issues in this appeal given the holdings of this opinion.
FOOTNOTES (Dissent)
Footnote 1:
1 Once courts decide whether DOC may preclude in-cell printers, it seems likely they
will have to decide related technical issues. The same rationale that covers a printer would seem to
apply to a CD-ROM drive and a disk with Alaska's reported cases. The court's theory, that
an illegitimate prison policy impairing court access requires further inquiry, would encompass claims
that the prison has denied access to the latest word processor program, a larger hard drive, greater
random access memory, and so on. A prison policy that limits prisoner in-cell access to laptop size
computers, if pretextual, can be translated into a constitutional right to have a full size, desktop
machine that is easier to use.
Footnote 2:
2 I do not mean to suggest that factors which determine whether a prisoner has standing
to appeal from prison grievance proceedings necessarily also determine whether a prisoner has
standing to attack prison procedures which have not resulted in imposition of discipline against the
prisoner.
Footnote 3:
3 No Alaska case has addressed an inmate's right of access to the courts. Cf. Freitag
v. Gohr, 651 P.2d 356 (Alaska 1982) (order denying petition for review) (no right to untimely
appeal); Bush v. Reid, 516 P.2d 1215 (Alaska 1973) (parolee has right to institute civil suit).
Footnote 4:
4 It is interesting to contemplate the possible effect of the court's opinion today and
what happens if on remand the trial court determines the "supplementary justifications"are
illegitimate because they did not motivate promulgation of the SOP. One must assume that DOC will
then realize that chilling inmates' right of access is an invalid basis for the SOP, will jettison the
improper rationale, and will repromulgate the SOP supported exclusively by proper grounds. Such
a course of events illustrates why a demonstration of impaired access should be required before the
judiciary interferes with executive policies.
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