Unpublished Disposition, 865 F.2d 263 (9th Cir. 1988)

MEMORANDUM^** 

Conn, a state prisoner in Arizona, appeals the district court's order granting summary judgment in this action under 42 U.S.C. § 1983 claiming compensatory damages for a deprivation of his First Amendment rights. Appellant brought the suit against several prison officials, claiming that a disciplinary order denying him access to the prison store for thirty days violated his First Amendment rights by depriving him of stationery and stamps needed for communication.

The district court granted appellees' motion for summary judgment on the following grounds:

Assuming that Major Terry has violated the plaintiff's constitutional rights, what damages has plaintiff suffered from his inability to purchase stationery and stamps for thirty days? The damages can only be minimal, in fact, too minimal to justify the continuance of this action.

Order Granting Summary Judgment, Excerpt of Record ("ER") at 104.

We review de novo a district court's grant of summary judgment. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Reviewing the record in this case, we find no justification for granting summary judgment on the ground invoked by the district court. Appellant asserted in his original complaint that he suffered substantial mental anguish from the deprivation of his First Amendment rights. Complaint, ER at 11. Such harm is compensable under section 1983. See Memphis Community School Dist. v. Stachura, 106 S. Ct. 2537, 2543 (1986). Nowhere in the record does it appear that appellees disputed appellant's contention that he had suffered such damages. In their filings below, appellees asserted only that appellant had failed to establish a First Amendment violation. The district court's evaluation of the damages suffered by appellant was pure speculation.

Because appellant's allegations of damages were uncontroverted, there is at least an issue of material fact on the damages question. Summary judgment is inappropriate when a dispute exists as to material fact. See Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). We therefore hold that the district court erred in granting summary judgment for appellees.

We disagree with the district court's implication that even if appellant suffered actual harm from the deprivation, the damage is too "minimal" to warrant consideration by the federal courts. The Supreme Court has made clear that while damages may not be awarded under section 1983 based on the abstract value of constitutional rights, damages may be awarded based on the mental anguish caused by a deprivation of constitutional rights. See Stachura, 106 S. Ct. at 2543-44. So long as appellant bases his claim on actual damages, he is entitled to have his action heard. There is no "minimum amount in controversy" requirement in section 1983 civil rights cases.

Appellees argue that we should affirm on the ground that appellant has failed to state a cognizable First Amendment claim. However, this argument was not ruled on by the district court, and we decline to reach the question without the benefit of consideration below. See Lokey v. Richardson, 600 F.2d 1265, 1267 (9th Cir. 1979). All we need to decide is the jurisdictional question of whether "the alleged claim under the Constitution ... is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682 (1946). Without deciding the merits of appellant's claim, we find that it is colorable within the standard enunciated in Bell. Under Pell v. Procunier, 417 U.S. 829 (1974), a restriction on prisoner communication may violate the First Amendment when other adequate means of communication are not available to the prisoner. We have no way of knowing on this record whether or to what extent appellant's communication opportunities have been restricted, but his claim is at least colorable.

The judgment below is REVERSED and the case REMANDED to the district court for further proceedings.