by William Van Poyck and Enrique J. Diaz

Although prisoners' constitutional right to meaningful access to the courts has been clearly established for almost three decades, the Florida DOC continues to evade and circumvent their constitutional obligation to accord prisoners their rights by employing blatantly unconstitutional rules and policies. Florida is not satisfied with mere passive resistance, but instead aggressively employs the most egregious methods to actively thwart prisoners' attempts to bring any litigations (civil or criminal) to the court house. Moreover, the DOC has so far done this with impunity. Under the policies and rules that will be described herein, the DOC consistently utilizes confiscation and destruction of prisoners' legal documents and materials, combined with disciplinary action, intimidation and harassment to throttle prisoners' attempts to litigate their cases and/or to receive legal assistance from other prisoners. While these policies are clearly, unequivocally and blatantly unconstitutional, the DOC remains secure in their knowledge that they can get away with it. The tactics used by the DOC will be described below and they bear watching as other states will surely attempt to push the envelope, testing the waters to see what they can get away with in the current environment of courts increasingly hostile towards prisoners' rights.

The Contraband Rule

With the specific approval of the DOC central office, Florida State Prison (F.S.P.) has for years now been utilizing the contraband rule to flatly prohibit any mutual legal assistance among any and all prisoners, including assigned legal aides. Rule 33-3.0 06(1)(b), Florida Administrative Code (F.A.C.), states that: "Any item or article not originally contraband shall be deemed contraband if it is passed from one inmate to another without authorization."

About four years ago when a number of litigations were becoming uncomfortable to the F.S.P. officials , one prison guard (working in the library) suddenly dreamed up the idea of refusing to authorize the passing or exchange of any legal documents or materials, thus automatically rendering any exchanged legal materials contraband. Overnight, all exchanged legal materials became contraband. Prior thereto there was never any objections to prisoners working on other prisoners' cases and possessing their legal papers. Suddenly, all legal aids were thoroughly searched coming into and leaving the library, specifically looking for any other prisoners' legal materials; any legal documents that were discovered (trial transcripts, briefs, records on appeal, etc.) were confiscated and destroyed as contraband .

All legal aides were informed that they were prohibited from touching or possessing any other prisoners' legal papers and were prohibited from authoring any motions, briefs, petitions, etc., for any prisoners, period. This, of course, completely undercut the whole purpose of the legal aides' existence. The legal aides were originally instituted as a result of a state wide class action suit, see: Hooks v. Wainwright , 775 F.2d 1433 (11th Cir. 1985). Further, upon orders from the F.S.P. administration, guards began raiding the cells of all known writ writers (including both of the authors of this article) with the express purpose of confiscating any and all legal documents pertaining to any other prisoners' cases. Thousands of pages of files and documents pertaining to ongoing litigations were confiscated and destroyed, in some cases completely eliminating the litigation. Many of these prisoners whose documents were destroyed could not read or write, speak English or simply had no education, thus forcing them to seek legal assistance from either the legal aides or jailhouse lawyers. They had (and have) no other recourse or remedy. Overnight this option disappeared.

While we grieved this new policy of harassment and intimidation up through the DOC grievance procedure, it was rubber stamped and approved all the way up to the Secretary of the DOC, who was quite pleased that one of his employees had been creative enough to invent a way to circumvent their own rules (which state that prisoners can assist each other in the preparation of legal documents). To this day this contraband policy is rigidly enforced at F.S.P., effectively thwarting a tremendous amount of litigation. Out of F.S.P.'s 1,200 prisoners, 800 are in some form of lockdown confinement; those prisoners who are not skilled enough to litigate their own cases simply cannot get into court, for F.S.P. simply refuses to authorize the exchange of any legal papers, period, thus precluding any meaningful assistance.

Twenty six years ago in Johnson v. Avery , 393 U.S. 483, 89 S.Ct. 747 (1969), the supreme court struck down a prison regulation which prohibited prisoners from assisting each other in the preparation of habeas corpus petitions. The court recognized that without the assistance of jailhouse lawyers or writ writers many prisoners would never be able to bring their claims. In Gilmore v. Lynch , 319 F.Supp. 105 (N.D. Cal. 1970), aff'd. sub nom., Younger v. Gilmore , 404 U.S. 15, 92 S.Ct. 250 (1971), the court held unconstitutional a prison regulation which was interpreted to prohibit jailhouse lawyers from assisting other prisoners by prohibiting them from being in possession of another prisoners' legal papers. And 27 years ago in Coonts v. Wainwright , 282 F.Supp. 893 (M.D. Fla. 1968), the local federal district court in Jacksonville struck down as unconstitutional a DOC rule that was then in existence which specifically prohibited prisoners from assisting each other in the preparation of legal documents.

Since Avery numerous federal courts have struck down as unconstitutional a variety of prison rules prohibiting prisoners from assisting each other in the preparation of legal documents. See, e.g., Cross v. Powers , 328 F.Supp. 899 (W.D. Wisc. 1971) [prison rule prohibiting mutual legal assistance between inmates is invalid]; Weaver v. Wilcox , 650 F.2d 22 (3rd Cir. 1981) [prisoner stated claim under 42 U.S.C. §1983 for denial of constitutional access to the courts where prisoner alleged that prison authorities prohibited inmates' collaboration in legal research and writing tasks]; Stevenson v. Reed , 391 F.Supp. 1375 (D.C. Miss.) [same ], aff'd, adopting district court's opinion, 530 F.2d 1207 (5th Cir. 1975); Craig v. Hocker , 405 F.Supp. 656 (D.C. Nev.) [same]; Corpus v. Estelle , 409 F.Supp. 1090 (D.C. Tex.) [same ]; Tillery v. Owens , 719 F.Supp. 1256, 1281 (W.D. Pa. 1989). See also: In re Harrell , 2 Cal. 3d 675, 470 P.2d 640, 87 Cal. Rptr. 504 (1970), where the California supreme court held that prisoners may possess the legal papers of other prisoners since such possession is integral to effective legal counseling. See also: Gibbs v. Hopkins , 10 F.3d 373 (6th Cir. 1993).

Further, under no circumstances are prison officials permitted to confiscate and destroy prisoners' legal materials; such actions are a blatant violation of the first amendment . See, e.g., Wright v. Newsome , 795 F.2d 964, 968 (11th Cir. 1986); Simmons v. Dickhaut , 804 F.2d 182, 184 (1st Cir. 1986) [Allegations that prison officials confiscated or destroyed legal materials belonging to inmate state constitutional claim]; Morello v. James , 810 F.2d 344, 347 (2nd Cir. 1987) [same]; Carter v. Hutte , 781 F.2d 1028, 1032 (4th Cir. 1986); Tyler v. Woodson , 597 F.2d 643 (8th Cir. 1979); Slie v. BordenKircher , 537 F.Supp. 133 (N.D. III. 1982). There exists no shortage of cases establishing this fundamental principle of law.

Finally, the policy of disciplining and retaliating against prisoners for attempting to exercise their first amendment rights to meaningful access to the courts (by receiving or giving legal assistance) is clearly unconstitutional. See: Wright v. Newsome , supra, at 968; Bridges v. Russell , 757 F.2d 1155 (11th Cir.1985); Hall v. Sutton , 755 F.2d 786 (11th Cir. 1985); Wildberger v. Brachnell , 869 F.2d 1467 (11th Cir. 1989); Hooks v. Kelley , 463 F.2d 1210 (5th Cir. 1972) ; Andrade v. Hauck , 452 F.2d 1071 (5th Cir. 1971); Madewell v. Roberts , 909 F.2d 1203 (8th Cir. 1990); Russell v. Oliver , 552 F.2d 115 (4th Cir. 1976); Smith v. Maschner , 899 F.2d 940 (10th Cir. 1990); Rizzo v. Dawson , 778 F.2d 527 (9th Cir. 1985); Meriwether v. Coughlin , 879 F.2d 1037 (2nd Cir. 1989). Again, minimal research will reveal scores of additional cases supporting this proposition.

Florida DOC officials pay absolutely no attention whatsoever to this wealth of case law; instead they steadfastly maintain their own outdated, unconstitutional policies, confident that none of Florida's conservative federal and state judges will require them to obey the constitution. So far their confidence has been well founded. Both of these writers have this issue (and the others related herein) in federal court, Van Poyck v. Singletary , #90-453-Civ-J-16, after remand, VanPoyck v. Singletary , 11 F.3d 146 (11th Cir. 1994), and Bass, et al., v. Singletary , #93-1357-Civ-J-20, however, the two federal district court judges in Jacksonville are extremely hostile to any prisoner litigations, especially pro se , and they flat out refuse to do anything about the unconstitutional DOC policies. It would appear that the court welcomes these restrictions as a way to vastly reduce its case load.

The Disciplinary Confinement Rules

Florida has two separate rules that prohibit prisoners who are in disciplinary confinement (DC) status from possessing any legal documents or materials, and from doing any legal work while in DC status [33-3.0084(1)(i),F.A.C.], and from utilizing any of the law library's legal services (e.g., obtaining photo copies of cases or statutes, getting motions photocopied, obtaining any legal advice, etc.) while in DC status [33-3.005(4)(a) & (b), F.A.C.]. At F.S.P. it is not uncommon for prisoners to be in DC status for two to six months, and some have been in continuous DC for over three years. During this time the prisoner's legal property is impounded in storage. The rules contain two narrow exceptions that allow a DC prisoner to obtain limited access to a portion of his legal property and limited access to the law library's services, for example: 1) if the prisoner is challenging the legality of the disciplinary report itself, and 2) when the prisoner can prove that he has a court ordered deadline to meet in an existing litigation. A prisoner in DC status may not initiate a new court proceeding (habeas corpus, civil complaint, etc.). Any violation of these rules, on their face and as applied, clearly violates prisoners' meaningful access to the courts as guaranteed by Johnson v. Avery , supra, Bounds v. Smith , 430 U.S. 817, 97 S.Ct. 1491 (1977), and progeny.

Numerous courts, faced with identical or similar regulations have held them to be an infringement upon prisoners' rights to meaningful access to the courts. See: Straub v. Monge , 815 F.2d 1467 (11th Cir. 1987); Leeds v. Watson , 630 F.2d 674 (9th Cir. 1980); McCray v. Sullivan , 509 F.2d 1332 (5th Cir.), on remand, 399 F.Supp. 271 (D.C. Ala.); see also: Coleman v. State , 762 P.2d 814 (Idaho 1988), where the Idaho supreme court held that a prison policy of denying prisoners access to the law library during the first ten days of their disciplinary confinement was an unconstitutional violation of prisoners' right to access to the court. [Editor's Note: See: 9th Cir. Affirms Court Access Case, in the June '95 issue of PLN where we reported Casey v. Lewis , 43 F.3d 1261 (9th Cir. 1994)] One of us, William Van Poyck, succeeded in having these F.A.C. rules declared invalid by a hearing officer in an Administrative Procedures Act (A.P.A.) proceeding, only to have the ruling overturned on a technicality that Van Poyck was not in DC status at the time of the hearing and thus had no standing to challenge the rules]. Thereafter the DOC persuaded the legislature to amend Florida's Administrative Procedures Act (Chapter 120, F.S.) to prohibit prisoners from participating in any A.P.A . proceedings; the change in law was specifically made retroactive, thus wiping out scores of pending litigations. Again, Florida successfully advances blatantly unconstitutional regulations.

The Exact Citation Paging System

At F.S.P. all 800 confinement prisoners (including death row) are denied any physical access to the law library and its books. Confinement prisoners' sole access is through written requests to the prisoner legal aides for photocopies of cases and statutes. Prisoners may receive 15 cases per week (which must be returned). The legal aides do no research for prisoners, and the requesting prisoners must already know the exact citation of the case(s) he wants. Thus the legal aides' jobs consist of merely photocopying cases and sending them to DC prisoners. It takes weeks to accomplish what could be done in minutes if physical access to the law library were allowed, and many tasks can simply not be accomplished under the constraints of the exact cite paging system.

F.S.P. has a top flight law library, physically, but the majority of prisoners simply cannot take advantage of it. Even a prisoner well schooled in the law has difficulty knowing where to begin their research when constrained by an exact cite system. Such exact cite paging systems have been universally condemned and held to be unconstitutional by every federal court that has addressed them, See, e.g., Tossssint v. McCarthy , 801 F.2d 1080, 1109 (9th Cir. 1986) ; Peterkin v. Jeffes , 855 F.2d 1021, 1036-41 (3rd Cir. 1988); DeMallory v. Cullen , 855 F.2d 442, 446-49 (7th Cir.1988); Morrow v. Harwell , 768 F.2d 619 (5th Cir. 1985); Rich v. Zitnay , 644 F.2d 4l, 43 (lst Cir.1981); Williams v. Leeke , 584 F.2d 1336 (4th Cir. 1978); Messere v. Fair , 752 F.Supp. 48, 50 (D.Mass. 1990); Griffin v. Coughlin , 743 F.Supp. 1006, 1023 (N.D.N.Y. 1990); Toussaint v. McCarthy , 597 F.Supp. 1388, 1413 (N.D. Cal. 1984); Valentine v. Beyer , 850 F.2d 951 (3rd Cir. 1988); Gluth v. Kangas , 951 F.2d 1504 (9th Cir. 1991); Knop v. Johnson , 977 F.Supp. 996 (6th Cir. 1992).

Although Florida's DOC is the defendant in a 24 year old class action suit, see: Hooks v. Wainwright , 775 F.2d 1433 (11th Cir. 1985), Judge Moore in Jacksonville has been sitting on the case since it was remanded to him in 1985, refusing to allow the case to proceed and in effect perpetuating the current unconstitutional system and DOC policies. With judges like this on the bench, the DOC knows it can violate the most basic constitutional rights relating to access to the courts with impunity.

[Editor's Note : The pressure on courts to throttle prisoner litigation is intensified by the huge increase in prison populations and the attendant prison overcrowding. Although prisoner litigation has decreased in the last 20 years when measured as the number of prisoner filings in proportion to the total prisoner population, the absolute number of prisoner litigations has increased dramatically simply because the number of imprisoned has more than tripled in the last 20 years. As courts feel increasingly pressured to reduce their case loads, judges - conservative or not - may be more accommodating to states and law makers who throw up barriers to prisoners' access to the courts.]

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