Unpublished Disposition, 907 F.2d 156 (9th Cir. 1988)

MEMORANDUM^** 

Howard Lee White appeals from the district court's summary judgment on his 42 U.S.C. § 1983 (1982) claim alleging (1) that the imposition of a $300 discovery sanction was an abuse of discretion, (2) that he was denied meaningful access to the courts, and (3) that prison employees unconstitutionally interfered with his mail. We affirm the district court's decisions that discovery sanctions were appropriate and that White was not denied meaningful access to the courts, but we reverse summary judgment on White's mail claim.

* White argues that sanctions should not have been imposed under Fed. R. Civ. P. 37(a) (4). We review discovery sanctions for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976).

White was served with interrogatories on February 23, 1988, and he did not respond within thirty days. Appellees filed a motion to compel answers on May 5, which the magistrate granted on June 2. White's answers were non-responsive. On September 14, appellees deposed White and asked him to clarify his answers to interrogatories. White again did not answer the questions. On November 11, 1988 appellees filed their second motion to compel. The magistrate granted that motion and awarded sanctions against White because he had not answered the interrogatories after four separate requests over a period of nine months. We find no abuse of discretion.

II

White's contention, that he was denied access to an adequate law library at the Clark County Detention Center and meaningful access to the courts, stems from the following allegations: (a) the prison law library did not have a copy of the local rules of practice, (b) library personnel removed large portions of the library's civil law collection, (c) library personnel refused to copy a class action complaint, and (d) library personnel intercepted mail from Judge Browning. The trial court's summary judgment is subject to de novo review.

We have explained that a " [p]rison need not provide its inmates with a library that results in the best possible access to the courts. Rather, the [p]rison must provide its inmates with a library that meets minimum constitutional standards." Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 856 (9th Cir. 1985). In Bounds v. Smith, 430 U.S. 817, 820 n. 4 (1977), the Supreme Court held that a law library that had a limited civil law collection and did not contain copies of Shepard's Citations or local rules of court, nonetheless met minimum constitutional standards. The library collection at the Clark County Detention Center was not substantially different from others which have withstood constitutional scrutiny. See, e.g., id.; Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 856, n. 1 (9th Cir. 1985).

Furthermore, that library's refusal to copy White's class action complaint did not constitute a constitutional violation because White had no constitutional right to free and unlimited photocopying. Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989). White must prove an actual injury resulting from a denial of access to the courts when that claim does not arise from an inadequate law library or inadequate legal assistance. Id. at 1171. Because he subsequently decided not to file his complaint, White did not suffer an injury.

Similarly, White suffered no constitutional deprivation when he did not receive a copy of a questionnaire from Judge Browning. He later received another questionnaire, and the only injury he alleged was that Judge Browning might have lost confidence in him. White's allegations concerning access to the courts do not establish a triable issue of material fact.

III

White also contends that respondents have interfered with both his outgoing and incoming mail, and that they have infringed upon his first amendment rights. " [T]he addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication." Procunier v. Martinez, 416 U.S. 396, 408-409 (1973), overruled on other grounds, Thornburgh v. Abbott, 109 S. Ct. 1874, 1881 (1989). Interference with prisoner mail must "be reasonably related to legitimate penological interests." Thornburgh v. Abbott, 109 S. Ct. 1874, 1876 (1989).

White does not allege facts to support the general allegations in his complaint that respondents interfered with his outgoing mail. Although some of White's outgoing mail did not reach its destination, the district court properly concluded that White had not alleged specific facts which indicated that respondents, as opposed to the United States Postal Service, were responsible for the undelivered mail. See Fed. R. Civ. P. 56 (e) (party opposing summary judgment must allege specific facts which create a genuine issue of material fact).

White does allege, however, that the Clark County Detention Center has an official policy of preventing pre-trial detainees from receiving mail while in booking. The prison officials do not deny that prisoners in booking cannot receive mail. They claim that people are normally transferred from booking after twenty four hours. C.R. 25, exhibit A. However, White alleges that he was in booking for four and one half days.

We are not in a position to decide whether the Clark County Detention Center's policy can pass constitutional muster. Because White has established a triable issue of material fact, we reverse the summary judgment on his claim that prison officials unconstitutionally interfered with his incoming mail. Factual questions regarding the policy and its application to White remain to be resolved by the trial court. In order to prevail on remand, prison officials will have to clarify their policy and show that it is reasonably related to legitimate penological interests.

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

REINHARDT, Circuit Judge, concurring in part and dissenting in part:

I concur with the majority's resolution of the merits of White's claim. I dissent, however, from that part of the opinion which affirms the imposition of sanctions against him.

White prosecuted this action pro se. He was served with seventeen interrogatories by the defendants but failed fully to answer only three. Thereafter his deposition was taken and further disputes arose. It is apparent from the record that even if White was incorrect on the merits of his arguments, his conduct was substantially justified. See Fed. R. Civ. P. 37.¹ 

White refused to answer questions regarding his conspiracy charges against the defendants because he believed that the charges had been dismissed. The prior history of the case reveals that White's belief was reasonable. White never explicitly stated a conspiracy claim under section 1983. Shortly after he filed his complaint, the district court sua sponte dismissed many of his claims. Subsequently, the defendants filed a motion to dismiss the remainder of them. In its order denying the defendants' motion, the district court noted that "the Defendants move for dismissal of the claims relating to conspiracy. As noted above, the conspiracy claims pursuant to 42 U.S.C. §§ 1985(3) & 1986 were dismissed at the outset."

The court made no reference to conspiracy charges under section 1983. There was nothing in the order or elsewhere in the record explicitly stating that the district court intended to permit White to pursue conspiracy charges pursuant to section 1983. In fact, the district court's order denying the defendants' motion to dismiss can fairly be interpreted as recognizing that no conspiracy charges survived the sua sponte dismissal of White's frivolous claims. It was therefore unclear from the record whether White was required to answer the questions asked by the defendants in this regard. These facts made his refusal to answer the questions substantially justified. See id.

White also refused to answer questions regarding his criminal history. Although his claim that the defendants' questions "raise serious Fifth Amendment problems" fails on its merits, there is no suggestion or indication in the record that White was acting in bad faith. Further, because he was pro se, he is not assumed to have the same ability as a plaintiff represented by counsel to recognize the objective merit (or lack of merit) of a claim. Miller v. Los Angeles County Board of Education, 827 F.2d 617, 620 (9th Cir. 1987).

Moreover, whether or not White's refusal to answer the interrogatories was "substantially justified," the magistrate abused his discretion by imposing $300 in sanctions against an in forma pauperis plaintiff in a civil rights action without considering the plaintiff's ability to pay the sanctions. Cf. id. at 620-21 (granting attorney's fees under 42 U.S.C. § 1988 is inappropriate if no consideration is given to plaintiff's ability to pay and fees would discourage future plaintiffs with valid civil rights actions).