Unpublished Disposition, 855 F.2d 862 (9th Cir. 1987)

No. 87-1883.

United States Court of Appeals, Ninth Circuit.

Before HUG^**  and BOOCHEVER, Circuit Judges, and ALBERT LEE STEPHENS,^***  Jr., District Judge.

MEMORANDUM^**** 

Sawyer, a state prison inmate in Florence, Arizona, appeals the district court's grant of summary judgment against him in his civil rights action. Sawyer sued the director, other officers, and numerous administrators of the prison under 42 U.S.C. § 1983 (1982), alleging that interference with his mail deprived him of his constitutional right of access to the courts and that his transfer from Perryville to the Florence facility was retaliatory.

Sawyer's original action was dismissed by the district court as time barred. We reversed in a memorandum disposition, Sawyer v. Ricketts, No. 84-2088 (9th Cir. July 1, 1985). An answer was filed on August 26, 1985. Sawyer's motion to amend his complaint was denied by the district court, which dismissed the action. The court later changed its order of dismissal to an order granting summary judgment to the officials. Sawyer appeals the judgment.

We first confront the issue whether we have jurisdiction over this appeal. The court granted the motion to dismiss on October 2, 1986. The clerk entered a judgment dismissing the action on the same day. On October 21, Sawyer moved for reconsideration. On November 5, he lodged a notice of appeal from the order and the judgment. The notice of appeal, however, was not filed on that date. On March 3, 1987, a district court order was filed which denied the motion for reconsideration and ordered the dismissal to be treated as an entry of summary judgment. The notice of appeal previously lodged then was filed on March 4, 1987.

The notice of appeal lodged November 5 exceeded the thirty-day limit of 28 U.S.C. § 2107 (1982) and therefore was untimely as an appeal from the October 2, 1986 judgment. Compliance with this time limitation is mandatory and jurisdictional. Wallace v. Chappell, 637 F.2d 1345, 1346 (9th Cir. 1987) (en banc). In addition, because Sawyer's motion for reconsideration was filed more than ten days after the October 2 dismissal, it did not toll the limitation period. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984); see Fed. R. Civ. P. 59(e).

The district court did, however, review Sawyer's motion for reconsideration, and denied it on March 3, 1987. Sawyer's second notice of appeal was filed the next day. While this notice of appeal was from the October 2, 1986 judgment and does not refer to the motion for reconsideration, we treat it as a notice of appeal from the March 3 denial of the reconsideration motion because it clearly evinces Sawyer's intent to appeal and provided the opposing party with notice of that intent. Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664, 667 (9th Cir.) cert. denied, 459 U.S. 1071 (1982). We also construe Sawyer's notice of appeal liberally because he is proceeding pro se. The second notice of appeal being timely filed, we have jurisdiction to hear Sawyer's appeal from the order denying the motion to reconsider.

Sawyer sought to amend his complaint to add more defendants and to enlarge his conspiracy claim. The district court denied the amendment because the action was "malicious in nature."

Sawyer alleged no facts in affidavit form or otherwise showing how the desired amendments were legitimate or different from his original claims. Given this fact and the obfuscated nature of his original complaint, we do not believe that the district court erred in denying the amendment.

Sawyer alleged a denial of access to the courts because the prison failed to provide him with postage stamps for his legal correspondences, and that his transfer was retaliatory. We review a grant of summary judgment de novo. Hernandez v. Johnston, 833 F.2d 1316, 1317 (9th Cir. 1987).

Under Bounds v. Smith, 430 U.S. 817, 828 (1977), prisoners have a constitutional right of access to the courts. See also Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986), cert. denied, 107 S. Ct. 2462 (1987). This right includes provision of stamps for indigent inmates to mail legal documents. Bounds, 430 U.S. at 824-25. The right to free postage may, however, be limited. In Twyman v. Crisp, 584 F.2d 352, 358-59 (10th Cir. 1978), the Tenth Circuit held that a postage allowance of eight letters per month for inmates with less than $5.00 in their accounts was constitutionally sufficient.

In affidavits attached to his complaint, Sawyer stated:

1. He has 223 pieces of "legal mail" which have not been sent;

2. Of these, 109 are directed to members of the Arizona legislature;

3. He prepared motions and has 65 "legal letters" ready for mailing regarding a state court case;

4. He missed the motion-filing deadline in that case because he was provided insufficient postage;

5. He was told that he was not being provided with postage because he was not indigent;

6. His account has a zero balance;

7. He is indigent and his salary under the prison's Work Incentive Pay Program is insufficient to satisfy his postage requirements; and

8. The prison's "refusal to comply with the law and to post [his] legal mail is certainly depriving him easy access to the Courts."

The Arizona Department of Corrections provides free postage for three pieces of mail per week for indigent inmates. In order to be considered indigent, an inmate may not receive more than $3.00 per week from all sources. An uncontroverted affidavit stated that Sawyer earned $14.00 per week as a warehouse clerk and therefore was not indigent under the prison's policy.

We affirm the district court's holding that the prison's mail policy met constitutional standards. See Twyman, 584 F.2d at 359. Sawyer has sufficient access to the courts if he is indigent as he alleges. If Sawyer is not indigent, he is free to mail legal correspondences as he pleases. In either event, Sawyer has adequate access to the courts as required by Bounds. If he chooses to use his postage allocation for non-court matters, by writing letters to legislators, for example, Sawyer cannot claim a constitutional violation. His constitutional right has not been abridged.

Sawyer also alleged that his transfer to Florence from Perryville in 1983 was in retaliation for filing grievances regarding his mail problem. The prison officials submitted an affidavit stating that Sawyer was transferred because of "his inability to conform to the directions and procedures of the department which constituted a threat to the safe and orderly operation" of the Perryville prison. While a concern for security is a legitimate reason for transferring an inmate, retaliation for a prisoner's attempts to define and protect his constitutional rights is not. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

A party seeking summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The affidavit is wholly conclusory on the retaliation issue and thus inadequate to meet the prison officials' burden under Rule 56. We conclude that the district court erred in granting summary judgment on Sawyer's retaliatory transfer claim.

Sawyer further contends that the court should have ordered a special report pursuant to 28 U.S.C. § 535 (1982) to review his "conditions of confinement." Sawyer's attempted amended complaint makes no factual allegation of these conditions except a reference to "illegal disciplinary processes and procedures."

Assuming, without deciding, that the court has jurisdiction to order such an investigation, but see Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965) (per curiam), cert. denied, 384 U.S. 906 (1966), it did not abuse its discretion by refusing to do so on the basis of the vague allegations of Sawyer's complaint.

Sawyer requested that his complaint be heard by a three-judge district court panel pursuant to 28 U.S.C. § 2284 (1982). Such a panel is required "when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." Id. Sec. 2284(a).

Sawyer has not raised a triable issue regarding legislative apportionment. As a result, a single district judge, rather than a three-judge panel, properly heard his case.

We have jurisdiction over this appeal. The district court did not err in denying Sawyer's motion to amend his complaint or in granting summary judgment against him on his access to the courts claim. It was error, however, to grant summary judgment on the claim of retaliatory transfer. The prison officials' request for attorney's fees is denied.

AFFIRMED IN PART and REVERSED IN PART.