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Published by: Charlton Butler on Aug 27, 2011
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Prisoners have a constitutional right of access to the courts. See Lewis v.
, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977),
limited in part on other grounds by Lewis, 518 U.S. at 354; Phillips v. Hust, 477
F.3d 1070, 1075 (9th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3393 (U.S.
Dec. 13, 2007) (No. 07-897); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995)
(discussing the right in the context of prison grievance procedures); Ching v.
, 895 F.2d 608, 609 (9th Cir. 1990) (per curiam).

This right “requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S.
at 828; see also Phillips, 477 F.3d at 1076; Madrid v. Gomez, 190 F.3d 990, 995
(9th Cir. 1999). The right, however, “guarantees no particular methodology but
rather the conferral of a capability – the capability of bringing contemplated
challenges to sentences or conditions of confinement before the courts. . . . [It is

Prior to the Supreme Court’s decision in Lewis, the Ninth Circuit did


not require prisoners to allege an “actual injury” resulting from the denial of court
access for a claim involving “either of the two Bounds ‘core requirements’” – the
right of access to (1) adequate law libraries or (2) adequate legal assistance from
trained individuals. Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); see also
Keenan v. Hall
, 83 F.3d 1083, 1093-94 (9th Cir. 1996), amended by 135 F.3d 1318
(9th Cir. 1998); Allen v. Sakai, 48 F.3d 1082, 1089-90 (9th Cir. 1995); Sands v.
, 886 F.2d 1166, 1171 (9th Cir. 1989). Lewis eliminated the distinction
between “core” and “non-core” Bounds requirements, and explained that a prisoner
must establish that he or she has suffered an actual injury in any claim alleging
denial of access to the courts. See Lewis, 518 U.S. at 348.


this capability] rather than the capability of turning pages in a law library, that is
the touchstone” of the right of access to the courts. Lewis, 518 U.S. at 356-57.
Prison officials may select the best method to ensure that prisoners will have the
capability to file suit. See id. at 356. Prisons “might replace libraries with some
minimal access to legal advice and a system of court-provided forms . . . that asked
the inmates to provide only the facts and not to attempt any legal analysis.” Id. at
352. Under this formulation, the Ninth Circuit decisions that concluded that
prisons have an obligation to provide photocopies and ink pens, where such
services and materials were necessary to filing an action or appeal, are arguably
still good law. See Hiser v. Franklin, 94 F.3d 1287, 1294 n.6 (9th Cir. 1996); Allen
v. Sakai
, 48 F.3d 1082, 1089-90 (9th Cir. 1995).

To establish a violation of the right of access to the courts, a prisoner must
establish that he or she has suffered an actual injury, a jurisdictional requirement
that flows from the standing doctrine and may not be waived. See


Lewis, 518 U.S.

at 349; Madrid, 190 F.3d at 996. An “actual injury” is “actual prejudice with
respect to contemplated or existing litigation, such as the inability to meet a filing
deadline or to present a claim.” Lewis, 518 U.S. at 348 (citation and internal
quotations omitted); see also Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir.
2008) (explaining that “[f]ailure to show that a ‘non-frivolous legal claim ha[s]
been frustrated’ is fatal” to a claim for denial of access to legal materials) (citing
Lewis, 518 U.S. at 353 & n.4); Madrid, 190 F.3d at 996. Delays in providing legal
materials or assistance that result in actual injury are “not of constitutional
significance” if “they are the product of prison regulations reasonably related to
legitimate penological interests.” Lewis, 518 U.S. at 362.


Where a prisoner asserts a backward-looking denial of access claim – one
seeking a remedy for a lost opportunity to present a legal claim – he or she must
show the loss of a “nonfrivolous” or “arguable” underlying claim, “the official acts
frustrating the litigation,” and “a remedy that may be awarded as recompense but
[that is] not otherwise available in some suit that may yet be brought.”
Christopher v. Harbury, 536 U.S. 403, 415, 417 (2002) (noting that a backward-
looking denial of access complaint “should state the underlying claim in
accordance with Federal Rule of Civil Procedure 8(a), just as if it were being
independently pursued.”); see also Phillips, 477 F.3d at 1076.

The right of access to the courts is limited to non-frivolous direct criminal
appeals, habeas corpus proceedings, and § 1983 actions. See Lewis, 518 U.S. at
353 n.3 & 354-55; Simmons v. Sacramento County Superior Court, 318 F.3d 1156,
1159-60 (9th Cir. 2003) (explaining that “a prisoner has no constitutional right of
access to the courts to litigate an unrelated civil claim.”); Madrid, 190 F.3d at 995.
The right of access to the courts is only a right to bring complaints to the federal
court and not a right to discover such claims or to litigate them effectively once
filed with a court. See Lewis, 518 U.S. at 354-55; Madrid, 190 F.3d at 995;
Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995) (“[W]e conclude the
Supreme Court has clearly stated that the constitutional right of access requires a
state to provide a law library or legal assistance only during the pleading stage of a
habeas or civil rights action.”).

The right of access to courts also applies to prison grievance proceedings.
See Bradley, 64 F.3d at 1279.

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