949 F.

2d 396

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Albert Russell CLAY, Jr., Plaintiff-Appellant,
v.
Major SMITH; Captain Mann; Mr. Rylance, Classification
Head; Bill R. Overman, prior Sheriff, Defendants-Appellees,
and
Frank Drew, Sheriff of VA Beach, Defendant.
No. 91-7645.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 19, 1991.
Decided Dec. 12, 1991.

Appeal from the United States District Court for the Eastern District of
Virginia, at Norfolk. Robert G. Doumar, District Judge. (CA-91-84-N).
Albert Russell Clay, Jr., appellant pro se.
Conrad Moss Shumadine, John Stephen Wilson, Willcox & Savage,
Norfolk, Va., for appellees.
E.D.Va.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
Before DONALD RUSSELL, K.K. HALL and MURNAGHAN, Circuit
Judges.
OPINION
PER CURIAM:

Albert Russell Clay, Jr., a Virginia prisoner, appeals from an order of the
district court granting summary judgment for the Defendants on Clay's claims
under 42 U.S.C. 1983 (1988). For the reasons stated more fully below we
affirm the bulk of the district court's order, though we vacate portions of the
order and remand certain claims for further consideration.

Clay was housed at the Virginia Beach Correctional Center ("VBCC") from
September 7, 1988, to August 3, 1989.1 Clay is currently incarcerated at the
Bland Correctional Center. Clay filed a complaint under 1983 alleging
various claims of denial of access to the courts, denial of due process, and
denial of good time credits relating to the period of his incarceration at VBCC.
After briefing by both sides, the district court granted summary judgment for
the Defendants on all claims.

Because Clay was transferred from VBCC before this complaint was filed his
claims for declaratory and injunctive relief are moot. See Ross v. Reed, 719
F.2d 689, 693-94 (4th Cir.1983); Inmates v. Owens, 561 F.2d 560, 562 (4th
Cir.1977). The chance of Clay being returned to VBCC in the future is too
speculative to create a valid case or controversy. Consequently, only his claims
for damages remain.

The First and Fourteenth Amendments provide state prisoners a right of access
to the courts. See Wolff v. McDonnell, 418 U.S. 539 (1974). A preliminary
issue is to what extent a prisoner alleging interference with his right of access to
the courts must also allege actual harm. This question has provoked different
answers from the various courts. See Sowell v. Vose, 941 F.2d 32, 34 (1st
Cir.1991) (summarizing cases). Generally, the more the claims at issue in a
particular case implicate the core values in Bounds v. Smith, 430 U.S. 817
(1977), the less a plaintiff must show actual injury. Sowell, 941 F.2d at 34.
Thus, courts have held that where "the challenge is systemic, embracing the
basic adequacy of materials and legal assistance made available" to inmates,
"prejudice inheres in the facts," Chandler v. Baird, 926 F.2d 1057, 1063 (11th
Cir.1991), and a showing of actual injury would be "superfluous," Sowell, 941
F.2d at 34. By contrast, where a claim only involves " 'ancillary features' such
as library schedules, the provision of notary services and the availability of
supplies (such as papers, pens and pencils)," a court cannot necessarily assume
that the deprivation impedes a prisoner's ability to file meaningful legal papers
and in such cases a showing of actual injury is required. Id.

In the present case, Clay filed two documents specifically setting forth
allegations of harm. In his "Supplemental Motion to Show Injury" Clay alleged
that he was entitled to $5000 in proceeds from an insurance policy and that he

had been unable to recover this money because of the inadequate access to the
courts. He further alleged that he was entitled to reimbursement of $30,000 in
bond money that had been erroneously forfeited because he was unaware that
he needed to file a motion for remission of bond. He also alleged that his
interest in a boat, valued at $5000, was lost due to his inability to adequately
pursue his claim. In an affidavit Clay filed in opposition to the Defendants'
Motion for Summary Judgment, Clay repeated these allegations and also stated
that he lost "a simple false arrest and malicious prosecution" case because he
was unable to discover the applicable statute of limitations before it was too
late. In addition, though the claim is stated only generally in the affidavit, Clay
contends that the inadequate legal facilities prevented him from discovering a
valid double jeopardy claim which he now may be barred from bringing due to
abuse of the writ problems.
6

With these considerations in mind we turn to Clay's specific claims. Clay

argues that the Defendants interfered with his right of access to the courts by: 1)
maintaining an inadequate law library; 2) failing to comply with Va.Code.Ann.
53.1-40 (Michie 1991) allowing appointment of attorneys to assist prisoners;
3) prohibiting inmates from assisting each other with legal pleadings; 4) failing
to provide supplies 5) limiting phone privileges; 6) failing to maintain a legal
mail log; and 7) limiting his access to the library.

Prison officials are required to provide prisoners with adequate access to a law
library or to persons trained in the law. Bounds, 430 U.S. at 828. Clay alleged
that the VBCC law library contained an inadequate selection of materials.2 The
district court denied relief, finding that the VBCC library was adequate and that
it was supplemented by an additional library from which inmates could request
materials.

An affidavit supplied by the Defendants sets forth the contents of the library
The library does not contain any of the federal reporters, except for eight
assorted paper-bound advance volumes of the Federal Reporter Second and
Federal Supplement. Nor does the library contain reporters covering Virginia
decisions In addition, the only copy of the United States Code in the library is
incomplete and now twenty-one years out of date. We conclude that as a matter
of law the absence of the Federal Reporter, the Federal Supplement and the
United States Reports renders the VBCC library constitutionally inadequate.
See, e.g., Bounds, 430 U.S. at 819-20 n. 4; Cruz v. Hauck, 627 F.2d 710 (5th
Cir.1980). The fact that these volumes might be available upon specific request
from another library does not cure the deficiency. Williams, 584 F.2d at 1339;
Hooks v. Wainwright, 536 F.Supp. 1330, 1342 (M.D.Fla.1982), rev'd on other
grounds, 775 F.2d 1433 (11th Cir.1985), cert. denied, 479 U.S. 913 (1986).

Because this type of claim is a "systemic" one, it is unclear that Clay need
make a showing of actual injury. However, even if such a showing were
required we believe that Clay's allegations of harm are sufficient to survive
summary judgment.

10

Accordingly, we vacate the denial of relief on this claim and remand it to the
district court for further consideration.

11

Clay's third claim is that the Defendants' policy of prohibiting inmates from
assisting each other with their legal matters denies him access to the courts. The
district court held that only illiterate or ignorant inmates are entitled to
assistance from other inmates, and that, in any event, because the library was
adequate the Defendants were not required to provide access to legal assistants.
Since we conclude that the library is inadequate, the sole issue is whether the
district court properly required illiteracy or ignorance before allowing
assistance by fellow inmates.

12

In Johnson v. Avery, 393 U.S. 483, 490 (1969), the court held that "unless and
until the State provides some reasonable alternative to assist inmates in the
preparation of" pleadings, the state could not enforce a regulation prohibiting
inmates from assisting each other. The Court noted the adverse impact such a
rule would have on inmates who are "totally or functionally illiterate, whose
educational attainments are slight, and whose intelligence is limited." Id. at
487. We believe that this language was intended to illuminate the harm of the
challenged regulation in Johnson, not to limit the holding. We find support for
this conclusion in recent court decisions discussing Johnson claims which made
no reference to illiteracy or ignorance. See, e.g., Wolff, 418 U.S. at 577-80;
Munz v. Nix, 908 F.2d 267, 268 n. 3 (8th Cir.1990); Kunzelman v. Thompson,
799 F.2d 1172, 1178-79 (7th Cir.1986); Adams v. James, 784 F.2d 1077, 1081
(11th Cir.1986). We vacate the denial of relief on this claim and remand it to
the district court for further consideration.3

13

We affirm the denial of relief on Clay's claim concerning Va.

14

Code.Ann. 53.1-40 on the reasoning of the district court. Likewise, we affirm

the denial of relief on the claim concerning paper, pens, and copies, and the
claim concerning absence of a mail log, because Clay's allegations of damages
demonstrate that the absence of these items was not the source of any of the
alleged harm.

15

Though the limits of a prisoner's right of access to telephones have not been

firmly delineated, it is clear that the amount of access provided by VBCC is

more than sufficient. See Wooden v. Norris, 637 F.Supp. 543, 552-58
(M.D.Tenn.1986) (surveying cases). Accordingly, we affirm the denial of relief
on this claim.
16

Clay's final denial of access to the courts claim concerns his alleged exclusion
from the law library from November 1988 to December 20, 1988. The district
court dismissed this claim as time barred, or in the alternative because he had
failed to demonstrate harm.

17

Where a prisoner is denied access to an adequate library for only a limited

period of time he must show that he was actually harmed. See Magee v.
Waters, 810 F.2d 451 (4th Cir.1987). Clay's allegations of harm do not
demonstrate that this particular alleged period of total denial of access to the
library resulted in any particular harm. Accordingly, we affirm the denial of
relief on this claim.

18

The bulk of Clay's remaining claims arises from an incident where he was
charged with removing a book from the law library. Clay contends instead that
the book was his, and that the Defendants wrongly removed it from his
possession.

19

To the extent that Clay contends he was deprived of property without due
process we affirm the district court's decision that relief is barred by Hudson v.
Palmer, 468 U.S. 517 (1984). To the extent that he contends removal of the
book interfered with his access to the courts, see Morello v. James, 810 F.2d
344, 346-48 (2d Cir.1987) (where claim is that by taking inmate's property
defendants interfered with right of access to the courts Parratt and Hudson
analysis is inapplicable), we find that Clay has not alleged that the denial of that
one book caused any actual harm. Accordingly, we affirm the denial of relief
on this claim. We affirm the denial of relief on the remainder of Clay's claims
arising from the book incident on the reasoning of the district court.

20

Clay's final claim is that he was improperly denied good time credit for the time
he spent in VBCC. The district court dismissed this claim, holding that it must
be brought pursuant to 28 U.S.C. 2254 (1988) since it seeks restoration of
good time credit. Clay contends that he has already filed a habeas petition on
this issue and that the present action does not seek good time credit itself, but
damages for the wrongful denial.

21

In the event that Clay prevails on his good time credit claim in his pending

habeas action he might be entitled to nominal damages on the present claim.

See Carey v. Piphus, 435 U.S. 247, 266 (1978). Accordingly, we vacate the
dismissal of this claim and remand it to the district court. The district court
should then stay consideration of the damages claim until it has resolved the
habeas petition.
22

In conclusion, we vacate the order granting summary judgment to the

Defendants on Clay's claim that the library at VBCC is inadequate and that the
jail's policy of denying inmate legal assistance interferes with access to the
courts. We remand these claims to the district court for further consideration.
We also vacate the dismissal of the claim for damages arising from the denial
of good time credits. We affirm the award of summary judgment on the
remainder of Clay's claims.

23

We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument would not
aid the decisional process.

24

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Clay contends that he was incarcerated at VBCC from June 13, 1988, to August
3, 1989. Because this factual dispute is not material to any of the issues in this
case it need not be resolved

Because the Defendants do not contend that attorneys are provided to assist
inmates with legal matters, the adequacy of the library is determinative.
Williams v. Leeke, 584 F.2d 1336 (4th Cir.1978), cert. denied, 442 U.S. 911
(1979)

In light of the Supreme Court's subsequent holding in Bounds that states must
provide either an adequate law library or adequate legal assistance, Johnson
may be of little continuing utility because it held that states must allow the
assistance of inmate writ-writers only in the absence of the alternative forms of
assistance now mandated under Bounds. Nonetheless, in this case Clay alleges
that VBCC provides neither an adequate law library nor the assistance of
attorneys; consequently, a claim under Johnson is viable. See Kunzelman, 799
F.2d at 1178-79