Kelsey v. Minnesota , 622 F.2d 956 ( 1980 )

PER CURIAM.

Dwight W. Kelsey appeals from the district court’s¹ granting of a summary judgment in favor of the defendants, the state of Minnesota and officials and employees of its Department of Corrections. Kelsey has brought this action under 42 U.S.C. § 1983, arguing that the defendants have deprived him of the fundamental constitutional right of access to the courts by maintaining an inadequate prison law library and by providing insufficient alternative means of access to the courts.

In support of his claims, appellant Kelsey submitted information concerning the library’s inventory, its updating and its irregular hours of access. The appellees conceded the inadequacy of the prison library, but nevertheless filed a motion for summary judgment on the grounds that Kelsey had full access to the courts through other channels. We are called upon, on appeal, to determine whether the defendants were entitled to the summary judgment as a matter of law or whether genuine issues of material fact still exist as to Kelsey’s access to the court system.

The parties to this litigation do not dispute the principle that every inmate has a constitutional guarantee of access to our courts. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Both parties also agree that prisoners seeking redress for deprivation of their civil rights by prison officials must be provided with “adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) (emphasis supplied). The Supreme Court has recognized in this regard that the maintenance of an adequate prison law library is only one constitutionally acceptable means of assuring access to our courts:

It should be noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here * * does not foreclose alternative means to achieve that goal. Nearly half the states and the District of Columbia provide some degree of professional or quasi-professional legal assistance to prisoners. * * * Such programs take many imaginative forms and may have a number of advantages over libraries alone.

Id. at 830-31, 97 S.Ct. at 1499.

This court, too, has recognized that a prison law library is only one means of providing access to our courts, and we have held, specifically, that the government need not provide inmates with every possible means of access to the courts:

We turn first to Noorlander’s initial ground that his right to self-representation mandates the provision of a law library by the Medical Center. We find this argument without merit. Under Johnson v. Avery, supra, the Government need not furnish every means of access to the courts. It need only provide some opportunity for a prisoner to gain equal access to the courts. Thus, if the public defender program at the Medical Center is effectual, the Government has met its burden under Johnson v. Avery regardless of any concomitant right to represent oneself in habeas proceedings. * * * Only failing the efficacy of the defender program and failing other suitable alternatives is Noorlander entitled to an adequate law library to aid him in his pro se attempts to secure access to the courts and obtain postconviction relief.

Noorlander v. Ciccone, 489 F.2d 642, 650 (8th Cir. 1973). Moreover, we have determined that an alternative program under Johnson v. Avery must be evaluated on its own to establish, first, what the prisoners’ needs for legal assistance are and, second, whether those needs are being met. Id. See McDonnell v. Wolff, 483 F.2d 1059, 1065 (8th Cir. 1973), aff’d in part, rev’d in part, 418 U.S. 539, 577-80, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935 (1974). A review of the record and Judge Larson’s memorandum order of October 25, 1978, in particular, convinces us that the trial court squarely addressed the issue of the adequacy of alternative means of access to the courts, and that, as a matter of law, it has been shown that Kelsey’s needs for legal assistance have been met.²

We have thoroughly examined the briefs and record in this proceeding and we are satisfied with the district court’s disposition of Kelsey’s other claims. Accordingly, we affirm on the basis of Judge Larson’s well reasoned opinion pursuant to Rule 14 of the Rules of this court: We would like to note in conclusion, however, that this holding is limited to the instant pleadings, affidavits and complaint, and does not insulate any present or future methods of providing state prisoners with court access from judicial scrutiny.

1 . Kelsey appeals from the decision of The Honorable Earl R. Larson, Senior District Judge, United States District Court for the District of Minnesota, Third Division. This case was consolidated with the other appeals which Kelsey had pending before the court (Nos. 78-1887 and 79 1255). This court affirmed the district court’s dismissal in 78-1887 and 79-1255 in a per curiam opinion on October 9, 1979, and severed this case and ordered that it be set for oral argument and that counsel be appointed to represent Kelsey at oral argument.

2 . It should be noted that it is not necessary to provide legal assistance for every conceivable civil claim prisoners wish to process. Both the courts and the legal assistance agencies themselves have the right to determine which claims merit legal assistance. See generally Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969).