Carl Gene Hacker, Michael Douglas Mcneil, Plaintiffs-appellants, v. James L. Saffle, Warden Osp, Lee Mann, Administrativeofficer Osp, Mike Pruitt, Unit Manager Osp-a-unit,melvin Campbell, Mailroom Supervisorosp, Defendants-appellees.carl Gene Hacker, Michael Douglas Mcneil, Plaintiffs-appellants, v. Gary Maynard, James L. Saffle, Defendants-appellees.carl Gene Hacker, Michael Douglas Mcneil, Plaintiffs-appellants, v. Gary Maynard, James L. Saffle, Billy Keys, Nancy Carpenter,defendants-appellees.carl Gene Hacker, Michael Douglas Mcneil, Plaintiffs-appellants, v. Gary Maynard, Henry Bellmon, Steve Lewis, Robert Cullison,william E. Thompson, Farrell Hatch, and James L.saffle, Defendants-appellees, 945 F.2d 411 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 945 F.2d 411 (10th Cir. 1991) Oct. 1, 1991

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT* 

STEPHEN H. ANDERSON, Circuit Judge.


After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cases are therefore ordered submitted without oral argument.

In each of these appeals, plaintiffs appeal the district court's dismissals of their pro se civil rights actions, filed pursuant to 42 U.S.C. § 1983, seeking declaratory, injunctive, and damage relief as frivolous under 28 U.S.C. § 1915(d). In addition, plaintiffs seek leave to appeal in forma pauperis.1 

We review the district court's dismissals under section 1915(d) for an abuse of discretion. Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir. 1987). Under section 1915(d), a district court may dismiss a pro se action if it is frivolous. A complaint "is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

[T]he statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.

Id. at 327. " ' [W]henever a plaintiff states an arguable claim for relief, dismissal for frivolousness under § 1915(d) is improper, even if the legal basis underlying the claim ultimately proves incorrect.' " Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991)).

When the pro se plaintiff is a prisoner, a court-authorized investigation and [special] report by prison officials ... is not only proper, but may be necessary to develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims.... Although a court may consider the [special] report in dismissing a claim pursuant to § 1915(d), it cannot resolve material disputed factual issues by accepting the report's factual findings when they are in conflict with pleadings or affidavits. A bona fide factual dispute exists even when the plaintiff's factual allegations that are in conflict with the [special] report are less specific or well-documented than those contained in the report. Because pro se litigants may be unfamiliar with the requirements to sustain a cause of action, they should be provided an opportunity to controvert the facts set out in the [special] report.

Id. (citations omitted).

No. 90-7091

Plaintiffs alleged in their complaint that their rights to free speech and due process, guaranteed by the first, fifth, and fourteenth amendments, were violated by defendants' failure to mail or interference with personal and legal correspondence, such that the mail did not reach its intended recipient. Also, plaintiffs alleged that defendants did not follow prison regulations permitting free certified legal mail and opened legal mail outside of plaintiffs' presence.

At the district court's direction, defendants filed a special report. After examining the special report and the parties' pleadings, the district court dismissed the action as frivolous. 28 U.S.C. § 1915(d). The district court found that certified mail privileges were available only to effect proper service of petitions and summons on defendants, and that at the times in question, plaintiffs either were not indigent or did not qualify for free certified mail privileges. The district court determined plaintiffs were required to open legal mail only to prove that they should be afforded free mail privileges. In addition, the court found that the requirement that inmates open their mail for verification purposes was legitimately related to prison interests. Plaintiffs appealed.

On appeal, plaintiffs argue (1) the district court improperly dismissed this action as frivolous; (2) the district court improperly relied on the special report to resolve factual disputes; (3) the district court judge was biased; and (4) the district court did not rule on their motion for certification of a class action.

Plaintiffs first argue that the section 1915(d) dismissal was improper because plaintiff McNeil's personal mail was returned, censored, or mishandled and that plaintiff Hacker's legal mail was opened outside of his presence. Plaintiffs contend the district court improperly relied on the special report to resolve the factual disputes regarding these claims.

Prisoners have a liberty interest within the fourteenth amendment protecting their right to correspond from arbitrary government action. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Procunier v. Martinez, 416 U.S. 396, 418 (1974). The right to correspond, however, may be reasonably regulated when there is a need to protect a legitimate governmental interest. Turner v. Safley, 482 U.S. 78, 89-90 (1987).

Thus, McNeil had a constitutional right to have his personal mail properly handled and delivered uncensored unless there was a legitimate governmental reason for censoring or failing to deliver the mail. McNeil presented specific instances of censorship and mail mishandling in his affidavit and brief in support of plaintiffs' objection to defendants' motion to dismiss. In their special report, defendants' only statement regarding McNeil's allegation was that there are no logs maintained for personal mail. The district court did not address McNeil's claim.

Because McNeil has made a rational argument based on the law and facts, we conclude his claim regarding his personal mail is not frivolous. Accordingly, we remand for further proceedings on this claim.

After reviewing the briefs and district court file, we conclude that the district court did not abuse its discretion in dismissing Hacker's claim, regarding the alleged opening of his legal mail outside of his presence, as frivolous.

In addition, we conclude plaintiffs' other arguments on appeal are without merit. Nothing in the record evidences any bias on the part of the district court judge. Although the district court probably should have ruled on the motion for class certification, its failure to do so was not reversible error, because plaintiffs presented no valid reasons for such certification.

No. 90-7092

In their complaint, plaintiffs alleged that their first, eighth, and fourteenth amendment rights were violated when the defendants eliminated the house arrest program, Okla.Stat. tit. 57, §§ 510.2, 510.3. Plaintiffs maintained they had a liberty interest in being released to house arrest.

After examining the file, including a special report prepared by defendants, the district court dismissed the action as frivolous. 28 U.S.C. § 1915(d). In determining the action was frivolous, the district court concluded that the Oklahoma house arrest statute does not create a constitutionally protected interest; it merely provides for a possibility of house arrest. Plaintiffs appealed.

On appeal, they argue (1) the district court improperly dismissed this action under section 1915(d); (2) the district court judge was biased; and (3) the district court improperly failed to rule on their motion for class certification.

After reviewing the briefs and district court file, we conclude the district court properly dismissed this action as frivolous under section 1915(d). Also, we conclude plaintiffs' other arguments on appeal are without merit.

No. 90-7093

In their complaint, plaintiffs alleged that their first, fifth, sixth, and fourteenth amendment and United States Constitution art. IV, § 2, cl. 1 right to access to the courts was violated by defendants. They contended that (1) as administrative segregation prisoners, they were denied access to the law library unless they had a court imposed deadline; (2) untrained inmate law clerks provided inadequate assistance; (3) there is an unconstitutional restriction on the number of inmates who may use the law library at any one time; and (4) defendants refused free mail privileges to plaintiffs even though plaintiffs were granted in forma pauperis status by the court.

Again, after examining the file, including a special report prepared by defendants, the district court dismissed the action as frivolous. 28 U.S.C. § 1915(d). In doing so, the district court determined that plaintiffs' right to access to the courts had not been abridged. They had been permitted several trips to the law library, free photocopies, and access to trained law clerks and library supervisors. Also, the court concluded that the prison regulations concerning free legal mail were reasonable. Plaintiffs appealed.

On appeal, they argue (1) the district court improperly dismissed this action as frivolous; (2) the district court improperly used the special report to resolve the fact dispute regarding access to the courts; (3) the district court ignored their requests for appointment of counsel and class certification; and (4) the district court was biased.

After reviewing the briefs and district court file, we conclude the district court correctly dismissed this action as frivolous under section 1915(d). We further conclude that plaintiffs' other arguments on appeal are without merit.

No. 90-7096

In their complaint, in which they requested certification of a class action, plaintiffs alleged several first, sixth, eighth, and fourteenth amendment violations. Specifically, they alleged (1) cruel and unusual punishment due to overcrowding and double celling; (2) violation of due process rights in disciplinary and classification proceedings; (3) denial of access to the courts; (4) improper application of Okla.Stat. tit. 57, §§ 138, 224, 365, 510.2, 510.3, 570-576, which are ex post facto laws; (5) denial of adequate medical and dental treatment; (6) denial of freedom of religion; (7) denial of earned credits and emergency time credits; (8) cruel and unusual punishment due to inadequate food, mail censorship, inadequate physical facilities, improper ventilation and temperature controls, and insufficient staff; and (9) excessive use of force.

After reviewing the file, including a special report prepared by defendants, the district court dismissed the action as frivolous. 28 U.S.C. § 1915(d). The court found (1) no eighth amendment cruel and unusual punishment violations; (2) no first amendment access to the courts violations; (3) no due process or equal protection violations in disciplinary or classification procedures; (4) plaintiffs have no right not to be placed in restrictive housing or administrative segregation; and (5) there were no applications of ex post facto legislation because plaintiffs were not eligible for credits to their sentences. Plaintiffs appealed.

On appeal, they argue (1) the district court improperly dismissed this action as frivolous; (2) the district court improperly used the special report to resolve factual disputes; (3) the district court was biased; (4) the district court improperly failed to determine whether the action could proceed as a class action; and (5) the district court did not consider the constitutionality of sections 138, 224, 510.2, 510.3, and 570-576.

After examining the briefs and district court file, we conclude the district court properly dismissed this action as frivolous under section 1915(d). We further conclude that plaintiffs' other arguments on appeal are meritless.

DISPOSITION

Leave to proceed on appeal in forma pauperis is GRANTED in all four appeals. The judgment in No. 90-7091 is REVERSED in part. The action is REMANDED for further proceedings on McNeil's claim of mishandling of his personal mail. In all other respects, the judgment is AFFIRMED. The judgments in Nos. 90-7092, 90-7093, and 90-7096 are AFFIRMED.

The mandates shall issue forthwith.

 *

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

 1

Although some of the arguments raised may fall within the scope of the Battle v. Anderson, district court No. 72-95-C, class action, in the interests of judicial efficiency, we will decide the appeals on the merits. Cf. McNeil v. Guthrie, --- F.2d ----, Nos. 90-572, 90-7066 (10th Cir. Sept. 25, 1991)