In Nasby v. State of Nevada, published August 18, 2023, the 9th Circuit Court of Appeals affirmed summary judgment in favor of state prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983 alleging denial of 1st Amendment rights. The prisoner, convicted of first-degree murder, was housed in a lockdown unit of a state prison before his transfer to another state prison. Both prisons require lockdown inmates to use a paging system to access materials in the prisons' law libraries, rather than allowing them to physically visit the library. Lockdown inmates fill out request forms. Inmate library workers review the requests. If the requests are filled out correctly, library workers retrieve the requested legal materials for delivery to the lockdown units. In one of the prisons, inmate law clerks are prohibited from visiting lockdown inmates. At both, inmate library workers receive little training and may not give legal advice. The prisoner produced affidavits that the only way to receive the legal materials is to request the specific source by name, and that his requests were rejected for lack of specificity. The prisoner alleged that this system deprived him of access to the courts by preventing him from discovering a state supreme court decision that supported his claim for post-conviction relief. He was required to re-raise his claim (previously asserted in direct appeal and habeas petition) concerning the new case within one year after the new case was decided. But he did not learn of the case until seven years after it was decided. In the meantime, he had filed two more habeas petitions. Upon discovering the case, he filed a fourth habeas petition based on the case. The trial court denied the petition as procedurally barred by laches, untimely, successive, and an abuse of the writ. The state appellate court affirmed on the same grounds, and on the ground that the evidence at trial established that even based on that case the prisoner would have been convicted. The prisoner sought injunctive relief ordering the paging system supplemented or changed; a declaratory judgment; and damages. The district court granted summary judgment based on the prisoner's lack of standing.
The panel majority agreed. Standing requires an injury in fact. To show actual injury for an access-to-courts claim, an inmate must demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. Only the hindrance of direct appeals from the convictions for which prisoners are incarcerated, habeas petitions, and civil rights actions implicate the access right protected by the 1st Amendment. The hindered claim must also be nonfrivolous: the plaintiff must show that the arguable nature of the underlying claim is more than hope. Here, the prisoner's fourth habeas petition was rejected for a reason unrelated to the delay in discovering the case on which he based the petition. That denial renders his habeas claim not "arguable" and therefore, in this context, frivolous. Even if he had instantly discovered the case and timely asserted his claim, his petition would still have faced timeliness and prejudicial error hurdles.
A concurring judge opined that the prisoner had standing to raise a claim arising out of alleged denial of access to the library, but that the claim failed on the merits.