APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 77-1053)
Before Seitz, Chief Judge, and Gibbons and Weis, Circuit Judges.
Appellant, Jerry Wayne Rhodes, a prisoner at Pennsylvania's State Correctional Institution at Huntingdon, filed this suit Pro se under 42 U.S.C. § 1983 (1976) to redress a series of violations of his constitutional rights. The complaint includes ten claims and names as defendants the commissioner of Pennsylvania's Bureau of Corrections, the superintendent and two deputy superintendents of the Huntingdon facility, and several of Huntingdon's officers and guards. The complaint prayed for declaratory and injunctive relief and for damages.
The defendants moved for summary judgment on all ten claims. The district court granted their motion on nine and allowed Rhodes to proceed to trial on the remaining claim.*fn1 With the trial now completed, Rhodes appeals from the grants of summary judgment.
Because Rhodes bases each claim on allegations of largely distinct facts, we shall consider each separately.
I. Prohibition of Legal Assistance to Other Prisoners
In the first claim of his complaint, Rhodes objects to a restriction on his duties as a clerk in the prison law library. The restriction prohibited him from assisting other prisoners in the preparation of their legal materials while on duty. Rhodes argues that this restriction is a barrier to other prisoners' access to courts and a violation of their rights under the due process clause. See Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). The district court dismissed the claim on the ground that Rhodes lacked standing to assert the due process rights of his fellow prisoners.
The Supreme Court has disregarded the rule against Jus tertii, the vicarious assertion of rights, in numerous cases involving constitutional rights. One important exception arises when enforcement of a legal rule will interfere with the rights of third parties who lack an effective means of asserting their own rights, but the person against whom the rule is enforced does not. An example of this exception is Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972). In a prosecution of a seller of contraceptive foam for violating a statute that prohibited the distribution of contraceptives, the Court permitted the seller to challenge the statute on the grounds of the privacy rights of unmarried users. The Court noted that enforcement against the seller would "materially impair the ability of single persons to obtain contraceptives." Id. at 446, 92 S. Ct. at 1034. Since the users were not themselves subject to prosecution, they lacked a similar forum in which to assert their own rights. Id. See also Craig v. Boren, 429 U.S. 190, 195-97, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). In Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), the Court heard a prison writ writer assert the rights of his fellow prisoners to receive assistance necessary for effective access to habeas corpus relief. Although the Court made no mention of the standing aspect of the case, it implicitly recognized Jus tertii in a situation closely analogous to the present case.
The circumstances of the present case justify a recognition of Rhodes's standing. We can take notice of the fact that many prisoners are unable to prepare legal materials and file suits without assistance. The record contains some examples of Rhodes having provided the assistance required by a few such prisoners. The challenged restriction, therefore, might materially impair the ability of some prisoners to file civil rights actions. Suits by these prisoners to protect their own rights of access to courts would be difficult because, as alleged, they would require the assistance of someone like Rhodes to bring such a suit.
Appellees argue that the challenged restriction does not, in fact, impede any prisoner's access to courts in civil rights actions. Because the district court relied entirely on its ruling on the standing issue to dismiss this claim, we decline to consider this argument. The responsibility for finding that no genuine issue of fact exists on any element of the plaintiff's claim lies initially with the district court. Accordingly, we will vacate the grant of summary judgment.
II. Denial of Use of the Photocopying Machine
In his second claim, Rhodes objects to a denial of his request to photocopy certain papers concerning a prior criminal conviction of a guard named Dean Forshey. He claims that he intended to send copies of the papers to members of the Pennsylvania legislature who were investigating conditions at the Huntingdon facility. However, the superintendent was informed that Rhodes intended to distribute copies to other prisoners and feared that the distribution would reduce Forshey's effectiveness as a guard. Pursuant to a general policy to permit prisoners to photocopy documents only if necessary for a lawsuit, communication with public officials, or a rehabilitation program, the superintendent refused to allow the photocopying.
The selective denial of photocopying privileges amounts to censorship of a prisoner's speech. With any such denial, the superintendent reduces a prisoner's ability to communicate through written materials. The reason for the action is the superintendent's disapproval of the communication itself. Consequently, this action is subject to scrutiny under the first amendment: it must further "an important or substantial governmental interest . . . unrelated to the suppression of free expression," and the restriction must be "no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968). In the case of a restriction on prisoners' speech, the recognized governmental interests are: "the preservation of internal order and discipline, the maintenance of internal security against escape or unauthorized entry and the rehabilitation of the prisoners." Procunier v. Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224 (1974). See also Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977). Furthermore, when a prison official exercises discretion to restrict prisoners' free speech, the first amendment might require the existence of written regulations to govern his discretion. See Main Road v. Aytch, 522 F.2d 1080, 1088-90 (3d Cir. 1975).
Nothing in the record disputes the superintendent's statement that he acted on information that Rhodes intended to distribute copies of the papers to other prisoners. Rhodes does not allege that the superintendent was aware of his intention to send copies to state legislators. Rather, he admits that he concealed this intention. Before the denial of the photocopying privileges, the prison librarian, acting on behalf of the superintendent, asked Rhodes how he planned to use the copies. Rhodes refused to answer the question.
In this situation, Rhodes's asserted intention to send copies to state legislators cannot supply the basis of a first amendment violation. There will arise instances in which prison officials may restrict prisoners' speech to serve some countervailing interest. See Jones v. North Carolina Prisoners' Union, supra. We would unnecessarily restrict the ability of prison officials to take such actions if we did not allow them to base their decisions on information reasonably available to them. Here, the superintendent gave Rhodes a fair opportunity to explain his need for the copies, and he ...