Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1988)

MEMORANDUM^** 

Randall N. Wiideman, a Nevada state prisoner, appeals pro se the district court's grant of summary judgment in his civil rights action under 42 U.S.C. § 1983 against Lieutenant Smith, a correctional officer at the prison. Smith seized legal files from Wiideman. Some of the files pertained to Wiideman's own litigation, and some pertained to cases in which Wiideman was providing legal assistance to other inmates. The files were not returned for twenty-one days.

Wiideman argues the seizure and detention of these legal files violated due process rights of access to the courts. He also contends the files were seized and detained, and that he was given administrative punishment, in retaliation for his legal work on his own cases and on the cases of other prisoners. In addition, Wiideman alleges Lieutenant Smith violated privileged attorney-client communications by causing information from seized files to be given to the State Attorney General's office, and that Wiideman's eighth amendment rights were violated because he was deprived of personal hygienic items, a shower and outdoor exercise while in disciplinary segregation.

We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part and remand for further proceedings.

DISCUSSION

We review de novo a grant of summary judgment, viewing the evidence in the manner most favorable to the party against whom it was granted. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Further, because Wiideman appeals pro se, we liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). However, to avoid a grant of summary judgment to Smith, Wiideman cannot rely solely on the allegations in his pleadings. Franklin, 745 F.2d at 1235; Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (per curiam), cert. denied, 442 U.S. 941 (1979). Rather, he must present some "significant probative evidence tending to support the complaint." First National Bank v. Cities Service Co., 391 U.S. 253, 290 (1968).

Wiideman argues that Smith blocked his access to court by seizing and withholding his legal files for twenty-one days. Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). That access must be adequate, effective, and meaningful, id. at 822, though it need not be absolute. Franklin, 745 F.2d at 1231.

A state official who blocks a state inmate's access to court violates the due process clause of the fourteenth amendment, even if the official acts pursuant to prison rules. DeWitt v. Pail, 366 F.2d 682, 685-86 (9th Cir. 1966). However, prison rules that regulate the "times and places in which inmates may engage in legal research and preparation of legal papers ... involve no violation of civil rights, provided the purpose or effect thereof, or the means adopted in enforcing them, is not unreasonably to hamper inmates in gaining access to the courts." Id. at 686; see also Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985) (prison officials can regulate time, manner, and place in which library is used).

We have stated that " [t]he temporary deprivation of an inmate's legal materials does not, in all cases, rise to a constitutional deprivation." Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir. 1989). Here, Wiideman's files were retained by prison officials for twenty-one days, surpassing the three-day seizure in Vigliotto we concluded was not unconstitutional. Yet Wiideman's files were seized and retained because they indicated that Wiideman had violated penal code provisions and administrative regulations prohibiting forgery of a prison official's signature, receipt of payment for assistance with other inmates' legal work, and retention of legal files owned by an inmate following his release from prison. See District Court Memorandum Decision and Order at 3-4. Wiideman offers no evidence as to how enforcing these prohibitions by a twenty-one-day seizure of legal files and a prison disciplinary hearing unreasonably hampered his access to the courts.

Further, Wiideman does not specify how his access to the courts has been blocked. See King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987) (reviewing court should focus on whether inmate has been denied meaningful access to court); Royse v. Superior Court, 779 F.2d 573, 575 (9th Cir. 1986) (no denial of access to court where inspection of incoming mail does not delay or hinder inmate's communication with court). In fact, Wiideman is currently litigating several cases in federal court. See District Court Memorandum Decision and Order at 4.

In summary, Wiideman has not presented evidence to show a genuine issue as to whether the seizure of his legal files denied him adequate, effective, and meaningful access to the courts. Summary judgment was appropriate on this claim.

Wiideman also contends that Smith's seizure of the legal files interfered with his assistance of other inmates with their legal work. Wiideman supports this contention with affidavits of several inmates who claim they were prejudiced in cases they were litigating by not having access to their legal files for twenty-one days.

The Supreme Court has held that a state may not prohibit inmates from assisting one another with legal actions unless the state provides some reasonable, alternative means of legal assistance. See Wolff v. McDonnell, 418 U.S. 539, 579-80 (1974); Johnson v. Avery, 393 U.S. 483, 490 (1969). Yet Wiideman does not claim that inmates were denied his legal assistance, leaving them with no reasonable alternative.

Rather, Wiideman challenges on the other inmates' behalf the twenty-one-day seizure of their legal files. The Court has made clear that

the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities.

Id. Here, Wiideman has not shown how prison officials acted unreasonably in seizing from him the legal files of other inmates when the files indicated that Wiideman had violated penal code provisions and administrative regulations. Summary judgment was appropriate on this claim.

Wiideman claims that Smith filed sixteen disciplinary charges against him in retaliation for litigating his own and other inmates' cases in court. Wiideman contends that " [n]o one EVER gets 16 penal write ups in one incident, and the episode was an obvious sham as a means of retaliating against WIIDEMAN for assisting other prisoners with their legal pleadings." Response to Motion to Dismiss/Motion for Summary Judgment at 10.

Wiideman can establish a violation of his right of access to the courts if he can prove Smith retaliated against him for his use of that access. See Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (reversing summary judgment for prison officials when inmate alleged officials had retaliated against him for petitioning for redress of his grievances). Such retaliation for the pursuit of litigation can take many varied forms. See, e.g., id. (prison officials allegedly told other inmates plaintiff was a "snitch"); Hall v. Sutton, 755 F.2d 786, 787 (11th Cir. 1985) (per curiam) (prison officials allegedly confiscated plaintiff's tennis shoes); Milhouse v. Carlson, 652 F.2d 371, 372-74 (3d Cir. 1981) (prison officials allegedly placed plaintiff in disciplinary segregation, then transferred him); Courtney v. Reeves, 635 F.2d 326, 329-30 (5th Cir. 1981) (per curiam) (prison officials allegedly harassed plaintiff's wife and interrupted his incoming mail); Russell v. Oliver, 552 F.2d 115, 116 (4th Cir. 1977) (prison officials allegedly delayed plaintiff's mail and denied him a furlough, a visit, and an assignment to a work release program).

In response to Wiideman's allegation of retaliation, Smith filed an affidavit claiming that he was "unaware of any of inmate Wiideman's previous or pending lawsuits [or] of his litigious nature." Affidavit of Francis Smith, Oct. 14, 1988, at 2. Wiideman, though, filed affidavits of two inmates tending to support his allegation of retaliation. Inmate Scott Hanson states that, on the day Smith seized the legal files, he "overheard Lt. Smith on the office telephone saying 'I'm straightening ... Wiideman out about all those ... suits he keeps filing', or words to that effect." Affidavit of Scott R. Hanson, Oct. 18, 1988, at 1. Additionally, inmate William Frankell states that, the day after the seizure, he overheard Smith telling another officer that " 'that ought to put an end to Wiideman's legal work for awhile.' " Affidavit of William C. Frankell, Sept. 23, 1988, at 1.

From the evidence in the record, there appears to be a genuine dispute as to whether Smith's filing of disciplinary charges against Wiideman was in retaliation for Wiideman's legal actions in court. Both parties have put forth evidence on the issue of Smith's intent. Viewing the evidence in the light most favorable to Wiideman, summary judgment on this claim was inappropriate. We reverse the district court's grant of summary judgment on this claim.

Wiideman alleges that Smith caused his legal files, containing privileged attorney-client communications, to be given to the State Attorney General's office. The only evidence he offers to support this allegation is the affidavits of three inmates. Each inmate claims he was informed by prison officials the legal files seized by Smith had been given to the State Attorney General. See, e.g., Affidavit of David Mark Leonardini, Sept. 24, 1988, at 1.

Personal participation or direction is a predicate of section 1983 liability. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Wiideman offers no evidence that Smith was personally involved in any alleged diversion of the legal files to the State Attorney General.

Personal participation is not the only predicate for section 1983 liability. As we stated in Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978),

Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.

Id. at 743-44. Wiideman offers no evidence that Smith knew or should have known the seized legal files would be handed over to the State Attorney General. Summary judgment was appropriate on this claim.

Wiideman's contention that he was deprived of various personal hygienic items, a shower, and outdoor exercise in disciplinary segregation also fails to allege any personal participation by or causal connection to Smith. Wiideman cannot rest on his pleadings. He must show how Smith personally participated in or knew or should have known the disciplinary charges would cause others to inflict the deprivations. See May, 633 F.2d at 167; Johnson, 588 F.2d at 743-44. Summary judgment was appropriate on this claim.

CONCLUSION

We affirm the district court's grant of summary judgment in Smith's favor on the blocked access to court, interference with legal assistance, diversion of files, and deprivation claims. We reverse the district court's grant of summary judgment in Smith's favor on the retaliation for legal activities claim, and remand this case to the district court for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.