Payne v. Nebraska Dept. of Corr. Servs.

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330 288 NEBRASKA REPORTS
determined at the time a suit is commenced, it is possible
that due to future events, this legal situation could change.
Although it seems unlikely under the facts of this case, if,
for example, appellees were to relocate to Nebraska, then
personal jurisdiction over appellees in a subsequent suit could
be proper in this state.
We also note that in this case, both parties agreed in briefs
and in arguments before this court that the dismissal should
have been without prejudice. For these reasons, we find that
the district court erred in dismissing the case with prejudice
and its judgment is ordered modified to a dismissal with-
out prejudice.
VI. CONCLUSION
For the foregoing reasons, the decision of the district court
is affirmed as modified.
Affirmed as modified.
Wright, Connolly, and Miller-Lerman, JJ., not participating.
Christopher M. Payne, appellant, v.
Nebraska Department of Correctional
Services et al., appellees.
___ N.W.2d ___
Filed June 13, 2014. No. S-13-627.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp.
2012 & Supp. 2013), may be reversed, vacated, or modified by an appellate court
for errors appearing on the record.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
3. Constitutional Law: Prisoners: Courts. The U.S. Constitution guarantees pris-
oners a right to access the courts.
4. Prisoners: Courts: Words and Phrases. Meaningful access to the courts is the
capability to bring actions seeking new trials, release from confinement, or vindi-
cation of fundamental civil rights.
Nebraska Advance Sheets
PAYNE v. NEBRASKA DEPT. OF CORR. SERVS. 331
Cite as 288 Neb. 3305. Constitutional Law: Prisoners: Courts. The constitutional right to access the
courts requires prison authorities to assist inmates in the preparation and filing
of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.
6. Prisoners: Courts. The right of access to the courts does not afford prisoners
unlimited access to prison law libraries.
7. ____: ____. The number of hours of library access alone is not determinative of
whether a prisoner’s right to access the court has been violated.
8. Prisoners: Courts: Claims: Damages: Proof. To establish a violation of the
right of meaningful access to the courts, a prisoner must establish the State has
not provided an opportunity to litigate a claim challenging the prisoner’s sentence
or conditions of confinement in a court of law, which resulted in actual injury,
that is, the hindrance of a nonfrivolous and arguably meritorious underlying
legal claim.
9. Constitutional Law: Prisoners: Courts. The State is not obligated under the
Constitution to enable inmates to litigate effectively once in court.
10. ____: ____: ____. Access to legal materials under the constitutional right to
access the courts is required only for unrepresented litigants.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Christopher M. Payne, pro se.
Jon Bruning, Attorney General, and Amie Larson for
appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Christopher M. Payne, an inmate incarcerated at the
Tecumseh State Correctional Institution (TSCI), challenges
TSCI operational memorandums that generally limit an inmate’s
access to the law library to 1 hour per day. The district court
for Lancaster County granted summary judgment and found
that Payne failed to prove an actual injury caused by the library
time regulations. Payne now appeals.
BACKGROUND
On November 21, 2011, Payne filed a petition for declar-
atory judgment pursuant to Nebraska’s Administrative
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332 288 NEBRASKA REPORTS
Procedure Act,1 alleging that TSCI operational memoran-
dums Nos. 107.01.01(II)(A)(3) and 116.01.02(III)(A)(3) were
invalid and unconstitutional because they restrict his law
library time in violation of his right to access the courts.
Payne also requested that any other Nebraska Department
of Correctional Services or TSCI regulation which limits or
restricts his access to the law library be found invalid. Payne
named the Department of Correctional Services, the warden
of TSCI, and the librarian of TSCI as defendants. In his peti-
tion, Payne alleges that he had four other civil actions and two
criminal postconviction actions that he had filed or that he
had planned on filing. One of his postconviction actions was
being handled by counsel, and the rest were being undertaken
pro se. He alleges additional law library time is necessary to
litigate those actions.
Inmates in the general population at TSCI are allowed 1
hour of law library time per day. To receive library time,
inmates are required to request a library pass. The library pass
regulations are outlined in TSCI operational memorandum
No. 107.01.01. TSCI issues passes to the library for every
inmate who seeks access; however, there is a library capac-
ity limit of 28 total people, which includes inmates, inmate
workers, and staff. The pass system was designed to help
ensure that the number of people in the library does not exceed
the library’s capacity. According to the librarian of TSCI,
unrestricted access to the library is not possible, because all
inmates are allowed access to the law library services. Without
the pass system, TSCI would be unable to provide availability
to all inmates.
If an inmate has a court date and shows he has an exigent
circumstance, he may request and be allowed an extra hour of
library time temporarily. The inmate is required to request the
extra hour of law library time 30 days in advance.
In the library, inmates are allowed to make photocopies for
legal purposes, including legal documents. Inmates are allowed
1
See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp. 2012
& Supp. 2013).
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PAYNE v. NEBRASKA DEPT. OF CORR. SERVS. 333
Cite as 288 Neb. 330to make notes during law library time so that they can continue
to work in their living unit. The law library is intended to be
for legal research only.
Ultimately, the district court granted summary judgment in
favor of the defendants and found that there was no genuine
issue of material fact that Payne did not show an actual injury
to a nonfrivolous and arguably meritorious claim as a result of
the challenged TSCI regulations and the limits on his access to
the law library.
ASSIGNMENTS OF ERROR
Payne assigns that the district court erred in (1) applying
the federal standard for determining standing on this state law
claim and (2) finding that the defendants were entitled to judg-
ment as a matter of law.
STANDARD OF REVIEW
[1] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act,
§§ 84-901 to 84-920, may be reversed, vacated, or modified by
an appellate court for errors appearing on the record.2
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.3
ANALYSIS
The primary issue for this appeal is whether the 1-hour-per-
day regulation on Payne’s law library time created an actual
injury sufficient to meaningfully deny Payne access to the
courts. We find that Payne did not prove an actual injury, and
we affirm the district court’s order.
2
Gridiron Mgmt. Group v. Travelers Indemnity Co., 286 Neb. 901, 839
N.W.2d 324 (2013).
3
Potter v. Board of Regents, 287 Neb. 732, 844 N.W.2d 741 (2014).
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334 288 NEBRASKA REPORTS
[3-5] The U.S. Constitution guarantees prisoners a right
to access the courts.4 Meaningful access to the courts is the
capability to bring “‘actions seeking new trials, release from
confinement, or vindication of fundamental civil rights.’”5
This right “‘requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance
from persons trained in the law.’”6
[6,7] However, there is not “an abstract, freestanding right
to a law library or legal assistance,” and therefore, “an inmate
cannot establish relevant actual injury simply by establish-
ing that his prison’s law library or legal assistance program is
subpar in some theoretical sense.”7 The right of access to the
courts “‘does not afford prisoners unlimited access to prison
law libraries.’”8 And the number of hours of library access
alone is not determinative of whether a prisoner’s right to
access the court has been violated.9
[8] To establish a violation of the right of meaningful access
to the courts, “a prisoner must establish the state has not pro-
vided an opportunity to litigate a claim challenging the pris-
oner’s sentence or conditions of confinement in a court of law,
which resulted in actual injury, that is, the hindrance of a non-
frivolous and arguably meritorious underlying legal claim.”10
As the U.S. Supreme Court stated, the constitutional right to
access the courts
does not guarantee inmates the wherewithal to trans-
form themselves into litigating engines capable of fil-
ing everything from shareholder derivative actions to
4
Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1(1989).
5
White v. Kautzky, 494 F.3d 677, 680 (8th Cir. 2007).
6
Id. at 679.
7
Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 135 L. Ed. 2d 606(1996).
8
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
9
See Lewis v. Casey, supra note 7.
10
White v. Kautzky, supra note 5, 494 F.3d at 680.
Nebraska Advance Sheets
PAYNE v. NEBRASKA DEPT. OF CORR. SERVS. 335
Cite as 288 Neb. 330slip-and-fall claims. The tools it requires to be provided
are those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to chal-
lenge the conditions of their confinement. Impairment of
any other litigating capacity is simply one of the inciden-
tal (and perfectly constitutional) consequences of convic-
tion and incarceration.11
Instead, prisoners are guaranteed “the conferral of a capabil-
ity—the capability of bringing contemplated challenges to sen-
tences or conditions of confinement before the courts.”12
We begin with Payne’s assignment of error on standing.
Payne argues that the district court impermissibly applied
federal principles on standing to his state action. We find no
merit to this argument. The district court did not hold that
Payne lacked standing to sue in Nebraska courts. Rather,
the district court found that the underlying claim by Payne
failed on the merits because there was not an actual injury.
Although the U.S. Supreme Court’s majority opinion in Lewis
v. Casey13 frames the issue of actual injury as a standing issue,
an actual injury is also required to be successful on the merits.
Therefore, we will not address standing, but, rather, we will
address whether Payne demonstrated an actual injury sufficient
to constitute a violation of his constitutional right to access
the courts.14
In his brief, Payne argues that the law library regulations
are not justified because of a lack of legitimate security con-
siderations. However, whether the law library restrictions are
justified becomes an issue only if a constitutional right is
impinged.15 And the constitutional right to access the courts is
only impinged if the regulation(s) hindered a nonfrivolous and
arguably meritorious legal claim.
11
Lewis v. Casey, supra note 7, 518 U.S. at 355 (emphasis in original).
12
Id., 518 U.S. at 356.
13
Lewis v. Casey, supra note 7.
14
See id.15
See Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
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336 288 NEBRASKA REPORTS
The record demonstrates that Payne had seven pending “law-
suits” at the time of deposition. After reviewing the record, we
find, as did the district court, that there is no evidence that the
law library restrictions hindered a nonfrivolous and arguably
meritorious legal claim challenging his sentence or the condi-
tion of his confinement. We now address each lawsuit.
Two of Payne’s seven “lawsuits,” which are better classi-
fied as “legal claims,” involve tort claims raised with the State
Tort Claims Board. As already stated, the constitutional right
to access the courts guarantees access to the courts only to
attack sentences, directly or collaterally, and to challenge the
conditions of confinement.16 Neither of the claims before the
State Tort Claims Board challenges his sentence or condition
of his confinement and, therefore, cannot be the basis for an
actual injury.
Next, Payne has two claims, at both the state and federal
level, that the library regulations have interfered with his
ability to litigate constitutional violations regarding his pris-
oner mail. Although these claims deal with the condition of
his confinement, they fail, because the evidence, even when
viewed in the light most favorable to Payne, does not establish
an actual hindrance to either claim. The federal lawsuit, case
No. 4:11CV3017, has been filed in the U.S. District Court and
has proceeded through the summary judgment stage. The fed-
eral lawsuit was still pending at the time of Payne’s deposition
for this case. Further, seeing that the federal suit was suc-
cessfully filed and has been successfully defended by Payne
through the summary judgment stage, the evidence simply
does not support a finding that the law library restrictions
prevented Payne from bringing his prisoner mail challenge to
the federal court.
[9] Likewise, the evidence establishes that the state claim
also has not been hindered. Although this claim has not yet
been filed, the record does contain a complete draft of the
prisoner mail complaint to be filed in state court. There is
no evidence in the record that the complaint requires more
library research time to be filed. In fact, Payne testified that
16
Lewis v. Casey, supra note 7.
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PAYNE v. NEBRASKA DEPT. OF CORR. SERVS. 337
Cite as 288 Neb. 330his concern “isn’t the adequacy of the filing itself. It’s the
sufficiency of the time to litigate later.” The U.S. Supreme
Court in Lewis v. Casey specifically denied that the state
was obligated to enable inmates “to litigate effectively once
in court.”17 Rather, the state is required only to allow the
prisoner the opportunity to bring to court a grievance.18 Even
when viewing the evidence in the light most favorable to
Payne, there is no evidence that the regulations have hindered
Payne’s ability to bring his mail grievance to the attention of
the state courts.
Further, Payne has had two civil actions filed in the dis-
trict court for Johnson County under cases Nos. CI11-95 and
CI11-123. But, again, the record establishes that neither was
hindered by law library restriction, because both lawsuits
were frivolous and without merit. In case No. CI11-95, Payne
filed a lawsuit regarding telephone access. The district court
dismissed the action because Payne failed to perfect service
and because sovereign immunity barred the action. On appeal,
the Nebraska Court of Appeals granted summary affirmance
and cited Martin v. Nebraska Dept. of Corr. Servs.,19 which
held that sovereign immunity bars suits which seek to com-
pel state officials to take affirmative action. Thus, there is no
material issue of fact that the lawsuit was ultimately frivolous
and that Payne did not suffer an actual injury in case No.
CI11-95. No amount of legal research could have changed
the outcome.
In case No. CI11-123, Payne attempted to appeal the
denial of his informal grievances regarding the Department of
Correctional Services’ denial of his attempt to correspond by
mail. The district court dismissed his claim under § 84-917(1),
because the informal grievances did not constitute a final deci-
sion in a contested case. There is no argument made by Payne
as to why additional law library time could have rectified the
lack of a final decision in a contested case. Case No. CI11-123
17
Id. at 354 (emphasis in original).
18
Id.
19
Martin v. Nebraska Dept. of Corr. Servs., 267 Neb. 33, 671 N.W.2d 613(2003).
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338 288 NEBRASKA REPORTS
was ultimately a meritless claim, and its dismissal cannot be
attributed to the law library regulations.
[10] And finally, Payne had two postconviction actions
pending at the time of his deposition. His postconviction
action filed in Sarpy County District Court is being handled
by hired counsel. Access to legal materials is required only
for unrepresented litigants.20 The other postconviction action
is being handled pro se. The complaint has been filed and at
the time of Payne’s deposition was in process. There is again
no evidence in the record on how the law library regulations
hindered his ability to bring his pro se postconviction action
to the court.
In conclusion, there is no material issue of fact that Payne
has not suffered an actual injury due to the law library regula-
tions he complains of. He has been able to repeatedly bring his
grievances to court. These grievances are backed by research
and are, considering their pro se nature, well written. What
Payne is really complaining about is his lack of litigation suc-
cess, not access to the courts. As explained above, the U.S.
Supreme Court has explicitly stated that a prisoner’s right to
access the courts does not include the right to litigate effec­
tively.21 Therefore, we affirm the district court’s grant of sum-
mary judgment. There is no material factual dispute that the
law library regulations did not hinder a nonfrivolous and argu-
ably meritorious legal claim regarding Payne’s sentences or
conditions of confinement.
CONCLUSION
We find that there is no material factual dispute, even when
viewing the facts in the light most favorable to Payne, that the
law library regulations did not hinder a nonfrivolous and argu-
ably meritorious legal claim regarding Payne’s sentences or
conditions of confinement. Therefore, the district court’s order
granting summary judgment is affirmed.
Affirmed.
20
Campbell v. Clarke, 481 F.3d 967 (7th Cir. 2007).
21
Lewis v. Casey, supra note 7.