USCA1 Opinion
May 20, 1992 [NOT FOR PUBLICATION]
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No. 91-2336
PAUL SIMMONS,
Plaintiff, Appellant,
v.
PAUL G. DICKHAUT, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Paul Simmons on brief pro se.
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Scott Harshbarger, Attorney General, and Andrea J. Cabral,
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Assistant Attorney General, on brief for appellees.
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Per Curiam. The appellant, Paul Simmons, appeals the
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grant of summary judgment in defendants' favor and the
dismissal of his complaint, filed pursuant to 42 U.S.C.
1983. We affirm.
In 1986, we reversed the district court's dismissal of
appellant's complaint for failure to state a claim. Simmons
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v. Dickhaut, 804 F.2d 182 (1st Cir. 1986). We concluded that
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an allegation of intentional violation of the right of access
to the courts states a cause of action under 1983 and that
appellant had alleged facts adequate to show more than simply
a procedural due process/deprivation of property claim, but
rather an intentional deprivation of his right of access to
the courts, protected as a substantive, constitutional right.
Id. at 185. While we directed that his complaint be
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reinstated, we cautioned appellant that, on remand, he still
had to
fill[] in the particulars of his claim to
withstand a motion for summary judgment.
We intimate no opinion about the success
on the merits of Simmons's allegations.
Id.
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On remand, appellant sought to "fill[] in the
particulars of his claim" by attempting to show the injury
which he claimed resulted from the defendants' intentional
deprivation of his right of access to the courts. Appellant
claimed that, had he had his legal material, (1) he would
have been able to substantiate his claim of an involuntary
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guilty plea to a 1981 charge of armed robbery; (2) the state
court would have revoked his sentence on the guilty plea; and
(3) an indictment on a different charge, which later was
brought forward and pursuant to which appellant received an
additional 18-20 years, would have been dismissed.
The district court did not address any aspect of
appellant's alleged injury. Rather, it concluded that
appellant's claim suffered from a failure of proof on an
antecedent element of his claim and granted defendants'
motion for summary judgment.
As we have recited countless times, we review the grant
of summary judgment de novo. E.g., Rodriques v. Furtado, 950
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F.2d 805, 808 (1st Cir. 1991). The question we face is
whether there is "any genuine factual issue[] that properly
can be resolved only by a finder of fact because [it] may
reasonably be resolved in favor of either party." Anderson
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v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In order
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to establish liability under 1983, appellant has to show an
intentional deprivation of his right of access to the courts
and that defendants' conduct was causally connected to that
deprivation. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,
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559 (1st Cir. 1989).
The record essentially reduces to these competing
contentions.
Appellant claims: I had personal property,
including legal material, in my possession. I left it.
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The defendants took possession of my property.
Despite prison regulations which require the
defendants to forward my property to me, I had
to ask three times for my legal material.
When I got my property back, I was told the
legal material was not there.
The defendants respond: Appellant lived in an
unlocked dormitory, where other inmates had
access to his personal property. He never
requested that any legal material be
separately inventoried or stored in a secure
location. The property officer, who took
possession of appellant's property after
appellant's escape, including a box of
miscellaneous books and papers, never removed
or tampered with anything in that box while it
was in his custody. And, to the best of the
property officer's knowledge and belief, no
one removed or tampered with anything in that
box from the time it was taken from
appellant's room until it was retrieved by the
person authorized by appellant to do so.
Appellant claims that he had legal material among his
possessions. In any event, defendants do not deny that he
had legal material; rather, they are saying that they do not
know whether he did or not. Appellant apparently has no
personal knowledge that his legal material is, in fact,
missing. His filings have always recited that he "was told"
that his legal material was not among his personal property
that was picked up by Robert Lockett. Accepting the premise
that appellant had legal material among his personal property
and that it was not there when the property was retrieved,
the inference he then asks that we draw is that defendants
(a) confiscated it (b) with the intent to interfere with (or
were either reckless or callously indifferent about, see
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Germany v. Vance, 868 F.2d 9, 18 (1st Cir. 1989)) his right
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of access to the courts.
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The Court has stated that
there is no issue for trial unless there
is sufficient evidence favoring the
nonmoving party for a jury to return a
verdict for that party. If the evidence
is merely colorable, or is not
significantly probative, summary judgment
may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (internal
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citations omitted).
The mere existence of a scintilla of
evidence in support of the plaintiff's
position will be insufficient; there must
be evidence on which the jury could
reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably
asks whether reasonable jurors could find
by a preponderance of the evidence that
the plaintiff is entitled to a
verdict....
Id. at 252.
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"On issues where the nonmovant bears the ultimate burden
of proof, he must present definite, competent evidence to
rebut the motion." Mesnick v. General Elec. Co., 950 F.2d
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816, 822 (1st Cir. 1991), petition for cert. filed, 60
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U.S.L.W. 3689 (U.S. Mar. 9, 1992) (No. 91-1528). "The
evidence illustrating the factual controversy cannot be
conjectural or problematic." Mack v. Great Atl. & Pac. Tea
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Co., 871 F.2d 179, 181 (1st Cir. 1989). Appellant's
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"evidence" that defendants confiscated his legal material is
no more than "merely colorable" or "a scintilla of evidence,"
and is not enough to support a jury finding in appellant's
favor by a preponderance of the evidence. The district court
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correctly concluded that the factfinder would be left to
conjecture or speculation.
Contrary to appellant's apparent belief, our reversal of
the district court's prior dismissal for failure to state a
claim did not relieve him, on remand, from the burden of
providing sufficient factual support of a causal connection
between defendants' conduct and the alleged intentional
deprivation of his right of access to the courts. While we
concluded that the district court had erred, in 1986, in
construing appellant's complaint as alleging no more than a
negligent deprivation of property, allegations which suffice
to survive a dismissal, pursuant to Fed. R. Civ. P. 12(b)(6),
are not necessarily sufficient to survive the summary
judgment hurdle. See Ochoa Realty Corp. v. Faria, 815 F.2d
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812, 814 n.1 (1st Cir. 1987).
Finally, we add that there are some obvious gaps and
leaps of faith in appellant's reasoning in support of his
claim of injury. Apart from this concern, appellant's
allegation of injury is problematical. At a December 1985
state court hearing on his postconviction motion, it was
learned that the court reporter had lost her stenographic
notes of appellant's 1981 guilty plea proceeding, so no
transcript of that plea proceeding existed. If, as appellant
suggests, his request for postconviction relief, alleging an
involuntary guilty plea, was dismissed by the state court for
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failure of proof, it likely was because appellant could not
substantiate his claim of an involuntary plea without a
transcript of the 1981 plea proceeding. That dismissal,
therefore, did not result from any confiscation of legal
material by defendants, who could not have confiscated a
transcript which did not exist.
A generous reading of some of appellant's filings
suggests that appellant also may have claimed that he had
legal material, such as copies of state court postconviction
motions and supporting memoranda, among the legal material
allegedly confiscated. At the hearing on his motion seeking
to vacate his guilty plea (where appellant was represented by
counsel), the judge acknowledged that he had received "a lot
of papers directly from Mr. Simmons" and he would "reread the
papers that I have which I got directly from your client and
take into consideration what you have pointed out in your
arguments." Assuming that legal material, related to
appellant's attempts to vacate his 1981 guilty plea, was
among the "miscellaneous books and papers" in defendants'
possession after July 1985, it appears likely that the judge
had that material in any event and unlikely that the
dismissal of his state court postconviction proceeding
resulted from appellant's inability to produce copies of that
material.
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Whether a plaintiff, who alleges a denial of his right
of access to the courts, must plead and prove the existence
of an actual injury depends upon the extent of the
deprivation. Sowell v. Vose, 941 F.2d 32, 34-35 (1st Cir.
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1991). "A prisoner need not show that the deprivation caused
him an independent injury where the deprivation is so
significant as to constitute an injury in and of itself."
Id. at 34. "Missing documents do, in a sense, constitute an
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'absolute' deprivation." Id. at 35. Even assuming that
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appellant was not required to show an actual injury, he,
nevertheless, has to show a causal connection between the
defendants' conduct and the deprivation of the right of
access to the courts. Appellant's evidence of injury cast
doubt, not only on the existence of injury, but on the
existence of a deprivation, as well. While the defendants'
conduct may have deprived appellant of his legal material,
that conduct does not appear to have deprived him, in any
meaningful way, of his access to the courts. On this record,
any confiscation of legal material, if it occurred, did not
adversely impact on his ability to participate in any court
proceeding in which he was involved. No constitutional
deprivation occurred.
Affirmed.
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