Unpublished Disposition, 898 F.2d 156 (9th Cir. 1987)

Memorandum^* 

Terry Nelson ("Nelson"), proceeding pro se and in forma pauperis, appeals from the district court's grant of summary judgment to Peter Carlson, et al. ("prison officials").

Nelson filed this action, seeking compensatory and punitive damages, and a declaratory judgment for violations of his fifth and fourteenth amendment due process rights pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Nelson alleges that his right of access to the courts was violated by: (1) denial of access to the law library; (2) confiscation of legal materials; (3) improper opening of legal mail by prison officials. We affirm the district court's grant of summary judgment on all of the above claims. Nelson also alleges violations of due process by (1) the denial of the opportunity to call witnesses at his disciplinary hearing; (2) improper denial of good time credits; and (3) improper denial of work performance pay. We also affirm the district court's opinion on these claims.

At the time the complaint was filed, Terry Nelson was a prisoner at the Federal Correctional Institution at Phoenix, Arizona, and a member of the Black Cultural Workshop, a prison group. He has subsequently been transferred to the WSR in Monroe, Washington.

Both parties agree that on March 2, 1987, Dan Shortt, a prison employee, observed Nelson typing legal materials. The parties, however, dispute whether it was permissible for Nelson to use this particular typewriter for legal work. The prison officials claim that the typewriter in question was a "Group Activities" typewriter, issued to the Black Cultural Workshop for group purposes only, and that this typewriter could not be used to type legal materials. Nelson claims that "Group Activities" typewriters do not exist and that this was a law library typewriter on loan to the Black Cultural Workshop. He alleges that Jesse Willard, the President of the Black Cultural Workshop, gave him permission to use the typewriter, and that he had never been informed that it could not be used for legal work.

Shortt confiscated the one-half page of legal material Nelson had typed and attached it to an "Incident Report." It was not returned. On March 3rd, the Unit Disciplinary Committee held a hearing on the typewriter incident. Nelson told Willard that he would be asked to testify at the hearing, but Willard was not called upon to do so. The Committee found that Nelson violated Prohibited Act Code 318, "Use of Equipment Not Specifically Authorized," and ordered him to perform 10 hours of extra duty.

On the same day, the Institution Disciplinary Committee received a recommendation to restore 213 days of previously forfeited good time credits to Nelson. As a result of the typewriter incident, 99 days were restored, and the consideration of the remainder was delayed for six months.

On April 6th, Nelson was reassigned from work in indoor recreation from 7:30 a.m. to 3:45 p.m. to work in food service from 11:30 a.m. to approximately 8:00 p.m. On April 7th, he requested permission to go to the law library, but was told that he had to work until 8:30 p.m. that evening. Nelson requested a different work assignment and was reassigned to inside landscaping on April 15th.

Nelson also alleges that three pieces of his mail, containing legal materials, were opened outside of his presence. Two of those pieces were not properly marked. The prison officials contend that the third piece was opened inadvertently, and that it was given to Nelson marked "Opened in error--contents not to be looked at."

The district court granted summary judgment to the prison officials on all counts. The court found that Nelson was not required to exhaust his administrative remedies, and that the defense of qualified immunity was not available to the prison officials. However, it also found that there was no factual dispute concerning the typewriter incident, and that the prison officials' behavior did not rise to the level of a constitutional violation. Nelson appeals from this judgment.

We review the district court's grant of summary judgment de novo. Richards v. Neilson Freight Lines, 810 F.2d 898, 906 (9th Cir. 1987). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the moving party was entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Under Rule 56(c), the moving party is entitled to summary judgment as a matter of law when the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The responding party "may not rest upon the mere allegations or denials of [his] pleading, but ... by affidavits ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

Nelson alleges numerous violations of his right of access to the courts.

Prisoners have a right, arising from the due process clauses of the fifth and fourteenth amendments, of access to the courts in order to challenge the legitimacy, duration, and conditions of their confinement. Wolff v. McDonnell, 418 U.S. 539, 576 (1974). This right of access, however, must be balanced against the legitimate governmental interest in maintaining the security and safety of prison facilities. Bell v. Wolfish, 441 U.S. 520, 546 (1979).

(1) Denial of Access to the Law Library:

Nelson alleges that he was denied meaningful access to the law library. He claims that his job reassignment from work with the indoor recreation department to the evening shift in the food services department frustrated his efforts to gain access to the law library.

Prisoners have a constitutional right of meaningful access to the courts which requires prison officials to assist inmates in the preparation and filing of their legal materials by providing inmates with access to an adequate law library or adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 829 (1977). However, prison officials may put limits on access to the library, because officials "of necessity must regulate the time, manner, and place in which library facilities are used." Lindquist v. Idaho Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). The Lindquist Court found that a library which was open 11 hours per day, and which the prisoners used in shifts, provided meaningful access. Id.

Here, the prison regulation requires the warden to allow an inmate a reasonable amount of time, "ordinarily during the inmate's leisure time," to conduct legal research and prepare legal materials. Federal Bureau of Prisons Program Statement 1315.3(5) (a) (1981). When Nelson was working in the food service, he had over 22 hours per week of leisure time available to spend in the law library. We find this to be "reasonable" in light of Lindquist. The prison regulation further states that the warden can give special time allowances for legal work to an inmate who demonstrates a requirement to meet an imminent court deadline. Otherwise, each inmate shall continue his regular activities without undue disruption by legal activities. Federal Bureau of Prisons Program Statement 1315.3(i) (1981). Although Nelson requested a work schedule change to allow him afternoon access to the library, he failed to demonstrate a need to meet an imminent court deadline.

On this issue, we affirm the district court's grant of summary judgment.

(2) Confiscation of Legal Materials:

Upon discovering that Nelson was typing legal materials, prison official Shortt confiscated Nelson's one-half page of typed material to use as evidence in the disciplinary hearing. The record does not indicate that this page was returned. Nelson appeals the district court's finding that the confiscation did not unreasonably interfere with his right of access to the courts.

Prison regulations that limit the time, place, and manner in which inmates may engage in legal research and preparation of legal papers do not transgress constitutionally protected rights where the regulation does not frustrate access to the courts. Lindquist, 776 F.2d at 858. The material was confiscated pursuant to the "some evidence" requirement of Superintendent v. Hill, 472 U.S. 445 (1985), for disciplinary hearings. Confiscation of legal materials does not frustrate a prisoner's right of access to courts if replacement copies of the materials can be obtained with little delay. Dewitt v. Pail, 366 F.2d 682, 686 (9th Cir. 1966) (confiscation of trial transcript may only minimally frustrate court access if replacement can be obtained easily); see, also, Vigliotto v. Terry, 873 F.2d 1201 (9th Cir. 1989) (confiscation of ten boxes of legal materials two weeks before appellate briefs due did not constitute a deprivation of access to courts since prison officials held materials for only three days).

While the government should have explained its failure to return the legal material to Nelson, the confiscation of the one-half page document was only a minimal frustration of Nelson's right of access to the courts. Nelson presents no evidence that he had an imminent court deadline to meet or that the document contained information which could not be easily reproduced. Under these circumstances, the confiscation of one-half page of material does not rise to the level of a constitutional violation.

We, therefore, affirm the district court's summary judgment on this issue.

(3) Opening of Nelson's Legal Mail:

Nelson appeals from the district court's finding that opening of his legal mail outside his presence by prison officials did not deprive him of access to the courts.

Legal mail may be opened by prison officials only in the presence of the addressee, but prison officials can require that "legal mail" be specially marked in order to be treated as such. Wolff, 418 U.S. at 575-77. The federal regulation governing the opening of "legal mail" requires that mail be marked "Special Mail--Open only in the presence of the inmate" and be marked with the attorney's name and an indication that the person is an attorney in order for it to be treated as "legal mail." 28 C.F.R. Sec. 540.18 (1988). Two of the envelopes that Nelson alleges were improperly opened did not contain this language. Therefore, the opening of those two pieces of mail did not deprive Nelson of his access to the courts.

One of the envelopes that Nelson alleges was improperly opened outside of his presence contained the proper markings. This envelope was opened in error by the prison staff and was not read. Inadvertent opening of a prisoner's legal mail, while not to be condoned, at most amounts to negligence. Stevenson v. Koskey, 877 F.2d 1435 (9th Cir. 1989). Mere negligence is insufficient to invoke the protections of the fourteenth amendment's due process clause. Daniels v. Williams, 474 U.S. 327 (1986) (overruling Parratt v. Taylor, 451 U.S. 527 (1981)).

On this basis, we affirm the district court's grant of summary judgment on this issue.

The parties dispute whether it was permissible for Nelson to use the typewriter for legal work.

The prison officials claim that the typewriter Nelson used was a group activities typewriter--it could only be used to type the minutes, records, and correspondences of authorized prison cultural groups. According to prison officials, the key to the cabinet containing the typewriter was issued to Jesse Willard, the president of the Black Cultural Workshop. While it may have been permissible for Nelson, a member of the Workshop, to use the typewriter for group activity work, the prison officials assert that it was not permissible for him to use a group activity typewriter for legal work. They point out that manual typewriters were available in the general library for use by inmates in typing their legal materials and other personal business, and contended that Nelson should have typed his legal work on one of those typewriters during his leisure time.

Nelson agrees that the typewriter was issued to the Black Cultural Workshop in the care of Jesse Willard, but claims that the typewriter belonged to the prison law library for the use of the general prison population. Nelson contends that there are no law library typewriters restricted solely to group activity use. Alternatively, Nelson asserts that even if the use of this particular typewriter was so restricted, the prison officials failed to give notice of the restrictions. The typewriter in question was kept in Willard's locker under his own combination lock and given to Nelson by Willard while they were in one of the indoor recreation rooms. Nelson claims that he had never been advised that it could not be used for legal work and alleges that Willard himself had been typing legal material on this particular typewriter shortly before giving it to Nelson.

The district court held that there was no genuine issue of fact, that it was implausible for Nelson to allege that there was no "Group Activities" typewriter when he was using a typewriter given to him by the president of a group. However, as Nelson explains in his brief, it was quite possible for him to be using a typewriter given to him by a group president, and to believe that there was no rule prohibiting its use to type legal materials. In fact, as Nelson argues, it is perfectly plausible that use of the typewriter would not be so restricted. This factual dispute provides the basis for Nelson's due process claims.

(1) Denial of Opportunity to Call Witnesses at Disciplinary Hearing:

Nelson contends that his due process rights were violated because he was not allowed to call witnesses at his disciplinary hearing for the unauthorized use of the typewriter. The district court found no due process violation.

Minimum procedural due process requirements must be met in prison disciplinary proceedings, including the opportunity to call witnesses and present documentary evidence in defense. Wolff, 418 U.S. at 563; see, also, Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir. 1982) (prison procedures precluding the calling by an inmate of another inmate or staff member as witness before a disciplinary committee violated due process). Here, the record does not show that Nelson attempted to call any witnesses to appear on his behalf at the Unit Discipline Committee hearing. According to an affidavit by Jesse Willard, Nelson asked Willard and other inmates to be witnesses at the hearing, but none of these inmates were called to the hearing. Nelson may have been prevented from calling witnesses to the hearing, but there is no affidavit from Nelson attesting to this fact. In his brief, Nelson merely states that he was denied his right to call witnesses and that he never explicitly waived the right. However, Nelson fails to offer any factual support for his allegation.

Because there is no affidavit from Nelson supporting this part of his claim, we must affirm the district court's grant of summary judgment on this issue.

(2) Denial of Return of Good Time Credits:

Nelson appeals the district court's finding that the prison's failure to restore 114 days of the 213 forfeited good time credit days did not violate fourteenth amendment procedural due process.

Due process in a prison disciplinary hearing is satisfied if the prisoner receives written notice of the charges, a statement of the evidence relied on by the prison officials, and a statement of the reasons for disciplinary action. Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 1987), cert. denied, 108 S. Ct. 2851 (1988).

Godod time credits are an entitlement sufficient to invoke the procedural protections of due process. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). A denial of good time credits must be supported by "some evidence." Hill, 472 U.S. at 454. Under this standard, there must be some evidence from which the conclusion could be deduced. Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069. It is not the function of the reviewing court to examine the entire record and independently assess the credibility of the witnesses or to reweigh the evidence. Id. Courts reviewing due process claims do not set aside decisions of prison administrators if they have some basis in fact. Id. However, the evidence must have some indicia of reliability, Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389 (9th Cir. 1987), and findings cannot be without support or otherwise arbitrary. Hill, 472 U.S. at 457.

In Hill, a prison guard testified that he heard a scuffle, found the victim injured, and observed the plaintiff and the other inmates jogging away. Id. at 447. No evidence was offered as to which of the inmates caused the injuries, but the victim provided written statements that the other inmates had not caused his injuries. Id. at 448. The Supreme Court held that this evidence was sufficient to meet the "some evidence" standard. Id. at 457.

We have previously held that an uncorroborated hearsay statement of a confidential informant is insufficient to satisfy the "some evidence" standard. Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987). However, a statement by a confidential inmate informant is sufficient provided that the record contains facts from which it could be reasonably concluded that the information was reliable and the record contains a prison official's statement that safety prevented the disclosure of the inmate's name. Zimmerlee, 831 F.2d at 186. Furthermore, we have held that an eyewitness account by the reporting officer, accompanied by a statement from an inmate witness, satisfies the "some evidence" standard. Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989).

Here, the prison officials denied Nelson restoration of 114 of his forfeited good time credits based on the prison officials' earlier finding that Nelson violated Prohibited Act Code 318, "Use of Equipment Not Specifically Authorized"--the typewriter incident. Restoration of the 114 days was to be reconsidered after six months of clear conduct. While the findings made following the prison disciplinary hearing might well have been insufficient in another setting, they are sufficiently supported in the record to satisfy the "some evidence" standard applicable here. The findings were based on the affidavits of prison officials which should be accorded greater weight the uncorroborated testimonies of confidential informants. Thus, despite the existence of a genuine dispute of fact regarding the typewriter incident, we are not free to overturn the decision of the prison administrators.

On this basis, we affirm the district court's summary judgment on this issue.

(3) Denial of Work Performance Pay:

Nelson appeals from the district court's finding that his denial of work performance pay for 30 days after his reassignment to a new job was within the prison official's discretion.

The adoption and execution of policies and practices by prison officials must be accorded deference by the courts. Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985). Here, prison regulations provided that inmates will not be paid for the first 30 calendar days following their assignment or reassignment to a job, a policy we find neither arbitrary nor unreasonable. Nelson's denial of work performance pay was in accord with this policy. Therefore, the district court's grant of summary judgment on this issue is affirmed.

Thus, the district court's grant of summary judgment on all counts is

AFFIRMED.