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Nevada Prisoner Strikes Out in Access-to-Courts Claim

On August 18, 2023, the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment for officials with the Nevada Department of Corrections (DOC) in a prisoner’s claim that it limited his access to courts. The Court’s ruling maintains a perfect score for prison officials facing such challenges across the country, since the Supreme Court of the U.S. (SCOTUS) moved to severely restrict prisoner access-to-courts claims.

In a 1996 decision dripping with condescension, the late Justice Antonin Scalia wrote for an 8-1 SCOTUS majority that “demand[ing] conferral of … sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires.” As a result Scalia continued, only a prisoner’s frustrated habeas and conditions of confinement claims may be challenged in an access-to-courts claim, since “[i]mpairment of any other litigating capacity is simply one of the incidentally (and perfectly constitutional) consequences of conviction and incarceration.” See: Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996).

In this case, Prisoner Brendan Nasby made his claim based on a denied habeas petition. Housed in a lockdown unit at Ely State Prison (ESP) from 2006 to 2014 and at Lovelock Correctional Center (LCC) thereafter, he was required to use a paging system to “fill out request forms” that are reviewed by prisoner library workers. The forms include a “Topical Section” or allow research by “issue.” Correctly completed forms result in copies of the requested materials being delivered. But at ESP, “inmate law clerks are prohibited from visiting lockdown inmates,” the Court recalled, “[a]nd at both facilities, inmate library workers receive little training and may not give legal advice.”

Nasby blamed the paging system for depriving him of access to the courts by preventing him from discovering a Supreme Court of Nevada decision in Nika v. State, 124 Nev. 1272 (2008)—a ruling that supported his claim for post-conviction relief, he said, by effectively making a key change to an earlier ruling about a jury instruction given at his trial. Nika opened a one-year window to challenge a conviction obtained with the old instruction; however, Nasby didn’t find the ruling until 2016, long after that window closed

Nevertheless, he filed a new habeas petition in state court, and when it was denied he filed suit in the U.S. District Court for the District of Nevada, accusing DOC of limiting his access to courts. The district court concluded that Nasby did not show any actual injury, which is needed to confer standing for an access-to-courts claim since Lewis.

Now, to prove an actual injury, a prisoner must “demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim,” the Lewis Court declared. To prevail on his claim, it must also be non-frivolous, though that can be shown if “the ‘arguable’ nature of the underlying claim is more than hope,” according to Christopher v. Harbury, 536 U.S. 403 (2002).

After the district court dismissed his claim, Nasby appealed to the Ninth Circuit, which began by noting that his habeas petition “faced multiple hurdles: it was untimely, successive, and had to overcome a presumption of prejudice to Nevada.” In affirming its dismissal, the Nevada Court of Appeals “assum[ed] inadequate access to legal materials constituted good cause to re-raise the jury instruction” that was affected by the Nika ruling. Yet that court ruled against Nasby on the merits of his case because “the evidence presented at trial was sufficient to establish beyond a reasonable doubt” that he had the requisite mens rea to sustain a conviction. This meant that no matter when Nasby raised his claim, it “had no chance of success, it was inarguable,” the Court said.

Therefore, the district court’s order was affirmed. Nasby was represented before the Court by California attorneys from Horvitz & Levy LLP in Burbank, as well as Certified Law Students from the Pepperdine Caruso School of Law Ninth Circuit Appellate Advocacy Clinic in Malibu. See: Nasby v. Nevada, 79 F.4th 1052 (9th Cir. 2023).  

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Related legal case

Nasby v. Nevada