Appeal from the United States District Court for the District of Arizona; C. A. Muecke, District Judge, Presiding; D.C. No. CV-84-1626-CAM.
Brunetti and Rymer, Circuit Judges, and Zilly, District Judge.*fn**
Inmates at the Arizona State Prison at Florence brought suit against the Arizona Department of Corrections under 42 U.S.C. § 1983 claiming that its policies concerning the prison law library denied them meaningful access to the courts. The district court granted summary judgment in favor of the plaintiff class and issued an injunction mandating certain changes in the operation of the library. The Department now appeals the district court's grant of summary judgment for the plaintiffs, the denial of its own motion for summary judgment, and various rulings concerning class certification (No. 90-15375). The Department also claims that the injunction exceeds constitutional standards (No. 90-16593). We affirm the district court in all respects.
I. The Department's Motion for Summary Judgment
The Department moved for summary judgment on the grounds that the inmates' claims were moot, relying exclusively on its post-litigation promulgation of a new access policy. As the Department conceded at oral argument, resting a summary judgment motion on the new policy alone was indeed "overreaching." It is well established that the mere voluntary cessation of alleged unlawful activity does not render those allegations moot. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir. 1985). The new proposed policy only provided, in a conclusory declaration, that "reasonable" access would be afforded. This did not deprive the court of a justiciable controversy. Even assuming that the policy meets constitutional standards on its face, given the Department's history of allegedly denying access arbitrarily and the vagueness of the new policy, it cannot be said "with assurance" that there is no "reasonable expectation" that the alleged violations will recur. Id.
Moreover, the Department provided no facts to support its claim that the inmate access situation had changed at all. Because the policy did not "completely and irrevocably eradicate the effects of the alleged violation," the district court was not obligated to wait and see how the new policy worked out. Id. The inmates opposed the Department's motion with affidavits detailing deficiencies in library access, legal assistant and law library clerk training, and problems with the indigency standards; they also asserted that the new policy had not been implemented. The district court did not err in concluding that summary judgment for the Department, based entirely on the mere promulgation of a new policy, was not appropriate.
II. The Inmates' Cross-Motion for Summary Judgment
In opposition to the inmates' cross-motion for summary judgment, the Department again relied solely on the argument that the new access policy rendered the claims moot. The Department adduced no other facts, and did not attempt to argue that a material issue of fact precluded summary judgment. We agree with the district court's observation that the Department's strategy "backfired."
The Department's new policy did not undermine any part of the factual record submitted in support of the inmates' motion for summary judgment. Because those facts remained uncontroverted and showed that unconstitutional conditions existed at the prison, the inmates were entitled to summary judgment on all three counts.
A. Count I: Inmate Legal Assistant Training
In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the Supreme Court held that the fundamental constitutional right of access to the courts requires that the state provide "adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. We have held that "if the state denies a prisoner reasonable access to a law library, the state must provide that prisoner legal assistance." Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 95 L. Ed. 2d 871 , 107 S. Ct. 2462 (1987).
According to the inmates' undisputed statement of facts, the Department established no qualifications for legal assistants and provided no training for the position. An inmate's application to be a legal assistant will be approved if the inmate is able to read and write. "Dependence on untrained inmate paralegals as an alternative to library access does not provide constitutionally sufficient access to the courts." DeMallory v. Cullen, 855 F.2d 442, 447 & n.3 (7th Cir. 1988). Bounds requires the ...