USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1823
RICHARD A. STREET,
Plaintiff, Appellant,
v.
GEORGE A. VOSE, COMMISSIONER OF CORRECTION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
R. A. Street on brief pro se.
____________
Nancy Ankers White, Special Assistant Attorney
____________________
Michael H. Cohen, Counsel, Department of Correction,
_________________

General,
on brief

appellees.
____________________
May 12, 1993
____________________

Per Curiam.
__________
vacated

In

a prior appeal

in this

case, we

the dismissal of appellant's complaint under Fed. R.

Civ. P. 12(b)(6) because it had entered without providing the

plaintiff with notice and an
Street
______

v. Vose,
____

1991).

This

opportunity to oppose or amend.

No. 90-1415,

slip

op. (1st

Cir. Mar.

6,

appeal challenges the entry of summary judgment

in favor of the defendants.

We affirm.
I
I
_

The appellant, a Massachusetts inmate, sued various

correction

officials and

officers under

42

U.S.C.

1983

alleging that he was denied constitutionally adequate

to the courts

while confined in the segregation

Massachusetts

Correctional

(MCI-CJ).1
or,

After remand,

in the alternative,

opposition,

like

Institution

at

for summary judgment.

the defendants'

unit of the

Cedar

the defendants moved

motion, was

access

Junction

to dismiss,
Appellant's
supported by

documentary evidence, and the district court properly treated

the motion as one for summary judgment.
Plaintiff's
repeatedly denied
provided

chief

access to

contention

is

that

the separate satellite

he

was

library

for segregated inmates, and access to other library

____________________
1. The appellant was housed in this unit for approximately
six months
on "awaiting
action" status
before being
officially
classified to
the unit in
December 1989.
Plaintiff's allegations cover the entire period, and although
both parties make much of the import of these distinctions in
status, for purposes of this discussion, we do not find the
differences of any material relevance.
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materials from the prison's main library, in violation of the

First and

Fourteenth Amendments

as well as

the terms

of a

Stipulation
Cepulonis v.
_________
The

of

Dismissal

Fair, No. 78-3233-Z

____

Stipulation set

regarding segregated
and

(Stipulation)

legal materials at

not pursued any

MCI-CJ.2

another

(D. Mass. Jun.

forth, inter alia,

_____ ____
inmates' use

in

case,

24, 1987).

detailed procedures

of the satellite
On appeal,

argument with respect to his

library

appellant has
third cause of

action, which appears to assert state-created rights arguably

inherent in the Stipulation, and, accordingly, that issue has
been waived.

____________________
2. As to specific claims that fall within the scope of the
Stipulation, Street alleges that: between December 1988, when
he was formally classified to the segregation unit, and March
1990, he filed 51 requests to use the satellite law library,
but was given timely access only 10 times and otherwise had
to wait up to two weeks before being given access; routinely,
no justification or reason was given as to why timely access
could not be provided; requests were not collected daily, as
required; some
written requests
were refused or
not
processed;
volumes and equipment in the library were not
maintained, and
the library
facility and
hours were
insufficient partly because other inmates who were not
classified to the segregation unit, but were housed there,
were allowed to
use the satellite law
library, thus
effectively denying access to those for whom the satellite
library was intended.
Street also contends that of ten
requests for materials from the main library, three were not
processed, and, as to the rest, only a small portion of the
requested materials were received. Of two requests for legal
assistance, one was granted late, and the other was denied.
Finally, copying requests were denied, and necessary books
were
unavailable.
There are other claims beyond the
Stipulation: that his legal papers were "ransacked" and
stolen, and that favored inmates are allowed frequent use of
the satellite library.
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II
II
__
As
undisputed

we

observed

that

inmates

contesting the

in

our

prior

seeking

ruling,

it

or

otherwise

release

constitutionality of the

is

conditions of their

confinement possess a right of access to the courts, that is,

the right to

"adequate law libraries or

from persons

trained in the law."

adequate assistance

Bounds v. Smith, 430 U.S.

______
_____

817, 821, 827-28 (1977) (upholding state access-to-the-courts

plan

under which,

deadlines might
However, such

inter
_____

have a

alia,
____

inmates

month's wait for

access is subject

meaningful access

means no

not

facing

a library

court
visit).

to reasonable restrictions:

more

than that

the state

must

assure an indigent inmate "an adequate opportunity to present

his claims fairly."

Id. at 823 (quoting Ross v. Moffitt, 417

___
____
_______

U.S. 600, 615-16 (1974)).

inmate has been
to

The relevant inquiry is whether an

afforded "a reasonably adequate

present claimed violations

courts."
______

opportunity

of fundamental rights

Id. at 825 (emphasis added).

___

to the

Moreover, virtually all circuit courts have read an

injury

element into less than total access-denial claims and

required prisoners to
that

shoulder an initial burden

the deprivation caused

some quantum of

respect to pending or contemplated litigation.

v. Waters, ___ F.2d ___, ___ &
______
No. 92-6147 (4th Cir. Mar.

of showing

prejudice with
See Strickler
___ _________

n.10, 1993 WL 86457, *4, *11,

26, 1993) (collecting cases).

We

-4-

held

as much in

1991): Where a
to legal
access,
Thus,

Sowell v. Vose,
______
____

941 F.2d 32,

prisoner has not been

materials, but
"actual injury

alleges only
[is]

35 (1st Cir.

denied complete access

restrictions on

a prerequisite

to

such

recovery."

unless the deprivation clearly amounts to an absolute,

inherently prejudicial restriction on access (clearly not the

case here), in order to defeat a motion for summary judgment,
"actual injury", i.e., an adverse effect on litigation caused
by the challenged conduct must be sufficiently alleged by the

plaintiff.
F.2d 289,

See
___

id. at 34-35; see also Shango v. Jurich, 965

___
___ ____ ______
______

292 (7th Cir.

1992); Crawford-El v.
___________

Britton, 951
_______

F.2d 1314, 1321 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 62
_____ ______
(1992).

To that end,

an affidavit opposing summary judgment

must demonstrate with specifics, and not speculation, how the

challenged conduct caused

legal harm.

Sowell, 941 F.2d

______

at

35-36.
III
III
___
Sowell was decided
______
case and
filed.

before
In

defendants'

its

defendants

pointed

complaint

had failed

restrictions

summary

judgment

accompanying

memoranda,

out,

Sowell,
______

citing

to allege

had prejudiced

this, or any other, lawsuit.

affidavit of

after our prior ruling

that any

him in

his

in this

motion

however,

that
of the

was
the

plaintiff's
purported

ability to

pursue

The motion was supported by the

MCI-CJ Superintendent Duval

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who attested that,

since being

housed in

the segregation

"has used, and continues to

Plaintiff's

unit, the

plaintiff

use the satellite law library."

memorandum in

opposition stated

that

his failure to allege actual prejudice was due to his lack of

legal training and the defendants' restriction on access.

He

contended that prejudice was demonstrated by the dismissal of

another

named

action

plaintiff

argued

prejudice

because

that

expressly

he

the

access-denial claims
and

in February
not

Cepulonis
_________

need

Alternatively,
to

show

Stipulation

by segregation unit

reserved to

action for damages.

did

1990.3

inmates

actual

controlled

inmates at

the right

to

MCI-CJ
bring an

Supporting plaintiff's memorandum

were

the Stipulation and the affidavits of the plaintiff and seven

other segregation

unit inmates each attesting,

in identical

fashion, to numerous violations of the Stipulation.4

These

profferings

by

demonstrate a genuine issue as to

who is

an experienced pro
___

the

plaintiff

actual injury.

fail

to

Appellant,

se litigator, does not

__

claim any

____________________
3. However, when the opposition was filed, plaintiff knew
that that dismissal had been vacated and the case remanded.
Street v. Maloney, No. 90-1280, slip op. (1st Cir. Dec. 29,
______
_______
1990).
4.

Included

were: routine delays

of 4-8 days

in receiving

access to the satellite library; missing books and torn and

missing pages in many volumes; out-of-date supplements and
pocket parts; delays of several weeks in receiving books from
the main library; typewriter and copier frequently broken;
lack of paper and other supplies.
-6-

delay or interruption

in this or any other

cites no court-imposed deadlines that

he has been unable
any of
293.

the alleged
At

access

most, he

deprivations.
has

1063

presented
the

See
___

described some

of indications of adverse

(11th

Cir.

Shango, 965
______
delay in

F.2d at
receiving

1991).

district court, demonstrating

legal consequence,

Chandler v. Baird, 926 F.2d

________
_____

well-drafted pleadings to

Further,

appellant

this court, as
that he has

ability to "participate

meaningfully in the

Sowell, 941 F.2d at 35.

______

While it is true that

did point to one adverse

a result of

Such temporary restrictions on

do not implicate a Bounds right.

______
1057,

he has missed, or that

to pursue any legal claim as

to library materials.

access, bereft

pending case; he

has

well as

retained the

legal process."
the plaintiff

judgment, it was later vacated, see

___

ante
____

n.3, and we can find nothing in the record indicating a

prejudicial "causal relationship"

any

of the

alleged deprivations,

conduct of the

defendants.

Id.;
___

between that dismissal, or

for that matter,

and the

see also Crawford-El,

___ ____ ___________

951

F.2d at 1321; Chandler, 926 F.2d at 1062.5

________
IV
IV
__
The
appellant

Stipulation

itself,

however,

does

not,

as

appears to contend, afford an independent basis of

____________________
5. Because we decide that the plaintiff has failed to meet
the initial burden to show prejudice, we need not address the
degree to which any restrictions on access to legal materials
are related to legitimate penological interests.
Turner v.
______
Safley, 482 U.S. 78, 89 (1987).
______
-7-

relief from asserted violations of the right of access to the

courts.

See
___

Cir. 1986).

Green v. McKaskle, 788 F.2d

_____
________

1116, 1122-23 (5th

The Cepulonis litigation that ultimately spawned

_________
the Stipulation at issue here was a class action initiated by
segregation

unit

inmates at

vindicate Bounds rights.

______
2 (1st Cir. 1984).

MCI-CJ

See
___

had

And while the Stipulation states that its

occasion

Stipulation

are

to

requirements

access

courts,

judgment

Stipulation
discussion

the

required,

to

we

and

of

the

offer

no

no more than

minimal

segregated

inmate

regarding
would still

the defendants

the plaintiff

terms

we have

assuming that the provisions of

intended to meet

constitutional

offered by

whether

constitutionally

the Stipulation were

summary

access to the courts,"

decide

opinion in that regard. Even

to the

to

Cepulonis v. Fair, 732 F.2d 1,

_________
____

procedures provide "adequate

not

(then MCI-Walpole)

find

proper:

concerning any

the grant
The

of

evidence

violations of

the

suffers from the same infirmity described in our

above

the

failure

to

demonstrate

sufficient quantum of prejudice to permit the case to proceed

further.6
____________________
6. To the extent that the plaintiff simply seeks to enforce
the Stipulation, he may not do so directly under
1983.
DeGidio v. Pung, 920 F.2d 525, 534 (8th Cir. 1990); Green,
_______
____
_____
788 F.2d at 1123; cf. Welch v. Spangler, 939 F.2d 570, 572
___ _____
________
n.2 (8th Cir. 1991) (district court proceeding included both
1983 and contempt actions).
The district court that
approved
the Cepulonis
Stipulation inherently
retains
_________
jurisdiction to enforce its own consent decree, see In re
___ _____
Donald Pearson, ___ F.2d ___, ___ No. 92-2158, slip op. at 9
______________

-8-

factual

Thus,

because

dispute

that

segregation unit

the

the appellant,

during the

meaningful access to

record

times in

presents

no

while

housed

in the

question, was

denied

the courts, the defendants'

material

motion for

summary judgment was properly granted.

V
V
_
We also find no abuse
of the plaintiff's

motion for the district

Merely issuing unfavorable

Corp., 866 F.2d
_____

of discretion in the

denial

judge's recusal.

rulings, Lisa v. Fournier Marine

____
________________

530, 532 (1st Cir.), cert.

_____

denied, 493 U.S.

______

819 (1989), or taking other judicial action during the course

of

proceedings cannot form

claim absent

a showing

Chantal, 902
_______

F.2d 1018,

assertion not made here.

grant a default

the basis of

of personal

a disqualification

bias, United States v.

______________

1022-23 & n.9

(1st Cir.

1990), an

Nor was district court's refusal to

judgment in favor of the

plaintiff an abuse

of discretion.

See Gulley v. Orr, 905 F.2d

___ ______
___

Cir. 1990) (absent a showing

preference

for

Finally,
status

of prejudice, there is a strong

disposition on

General Motors Corp.,

_____________________

437 F.2d

appellant complains that

conferences.

1383, 1386 (10th

While such

the

merits);

196, 199

Richman v.
_______

(1st Cir.

he was excluded
ex
__

1977).
from two

parte proceedings
_____

are

____________________
(1st Cir. Mar. 16, 1993), and parties with standing to do so
may seek compliance in that court.
See, e.g., Consumer
___
____ ________
Advisory Bd. v. Glover, ___ F.2d ____, ___, No. 92-1550, slip
____________
______
op. at 3-4 (1st Cir, Mar. 31, 1993).
-9-

disfavored, see Oses v. Massachusetts, 961 F.2d 985, 986 (1st

___ ____
_____________
Cir.

1992); In re Donald Pearson, ___

____________________

2158, slip op. at

F.2d ___, ___ No. 92-

16 (1st Cir. Mar. 16, 1993),

contacts here caused

no perceivable harm.

See

the ex parte
__ _____
id. slip op.

___

___

at 17; Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.), cert.
______
_______
_____
denied, 429 U.S. 858 (1976).
______
The judgment of the district court is affirmed.
________

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