Simmons v. Dickhaut, 1st Cir. (1992)

USCA1 Opinion
May 20, 1992
[NOT FOR PUBLICATION]
____________________
No. 91-2336
PAUL SIMMONS,
Plaintiff, Appellant,
v.
PAUL G. DICKHAUT, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________
Paul Simmons on brief pro se.

____________
Scott Harshbarger, Attorney General, and
Andrea J. Cabr
__________________
________________
Assistant Attorney General, on brief for appellees.
____________________
____________________
Per Curiam.
__________
grant
of
summary
dismissal of
1983.
The
appellant, Paul Simmons,
appeals the
judgment
in defendants'
favor
and
the
his complaint,
filed pursuant
to 42
U.S.C.
We affirm.
In 1986,
we reversed the district
court's dismissal of
appellant's complaint for failure to state a claim.

v. Dickhaut, 804 F.2d 182 (1st Cir. 1986).
________
Simmons
_______
We concluded that
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
rather an intentional
deprivation of his right
claim, but
of access to
the courts, protected as a substantive, constitutional right.

Id.
___
at 185.
While
we
directed
reinstated, we cautioned appellant
that
his
complaint
be
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.
___
On
remand,
particulars
which he
of his claim"
claimed resulted
deprivation
sought
to
"fill[]
by attempting to
he had
from the defendants'
his legal material,
able to substantiate
his claim of
in
the
show the injury

intentional
of his right of access to the courts.
claimed that, had

have been
appellant
Appellant
(1) he
would
an involuntary
-2-
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
brought forward
on a
different charge,
and pursuant to which
which later
was
appellant received an
additional 18-20 years, would have been dismissed.

The
district
appellant's
court
alleged
appellant's claim
antecedent
did
injury.
suffered
element
not
of
his
address
Rather,
it
any
aspect
concluded
from a
failure of
claim
and granted
proof on
of
that
an
defendants'
motion for summary judgment.

As
we have recited countless times, we review the grant
of summary judgment de novo.

F.2d
805, 808
(1st Cir.
whether there
1991).
The
is "any genuine factual
can be resolved
reasonably
E.g., Rodriques v. Furtado, 950

____ _________
_______
only by a
of either party."
Anderson
________
In order
access to the courts
defendants' conduct was causally
deprivation.
may
1983, appellant has to show an
intentional deprivation of his right of

and that
because [it]
477 U.S. 242, 250 (1986).
to establish liability under
face is
issue[] that properly
finder of fact
be resolved in favor
v. Liberty Lobby, Inc.,

___________________
question we
connected to that
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,

___________________
_________
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.
-3-
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
possessions.
had
know
that he
In any event,
defendants do not
among his
deny that he
legal material; rather, they are saying that they do not

whether he
personal
missing.
did or
knowledge
not.
that his
Appellant apparently
legal
material
is, in
has no
fact,
His filings have always recited that he "was told"
that his legal material

that
had legal material
was not among his
was picked up by Robert Lockett.
personal property
Accepting the premise
that appellant had legal material among his personal property

and
that it was not
the
inference he then asks
(a)
confiscated it (b) with the intent to interfere with (or
were
either
there when the
reckless or
property was retrieved,
that we draw
callously
is that defendants
indifferent about,
see
___
-4-
Germany
_______
v. Vance, 868 F.2d 9,

_____
of access to the courts.
18 (1st Cir. 1989)) his right
-5-
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

________
___________________
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.
___
"On issues where the nonmovant bears the ultimate burden
of
proof, he
rebut
816,
must present
the motion."
822 (1st
Mesnick
_______
Cir.
U.S.L.W.
3689
evidence
illustrating
(U.S. Mar.
the
871
F.2d
"evidence" that
179,
181
evidence to
v. General Elec. Co., 950 F.2d

__________________
1991),
conjectural or problematic."
Co.,
___
definite, competent
petition for cert. filed,

__________________________
9,
1992)
factual
(No. 91-1528).
controversy
cannot
60
"The
be
Mack v. Great Atl. & Pac. Tea

____
______________________
(1st
Cir.
1989).
Appellant's
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.

-6-
The district court
correctly
concluded that
the
factfinder would
be left
to
conjecture or speculation.
Contrary to appellant's apparent belief, our reversal of
the district
claim
court's prior dismissal for failure
did not
relieve him,
on remand,
from the
providing sufficient
factual support of a
between
conduct
defendants'
deprivation
and
the
of his right of access to
concluded that
the district
construing appellant's
to state a
burden of
causal connection
alleged
intentional
the courts.
court had
erred,
complaint as alleging no
negligent deprivation of property, allegations
While we
in 1986,
in
more than a
which suffice
to survive a dismissal, pursuant to Fed. R. Civ. P. 12(b)(6),

are
not
necessarily
judgment hurdle.
See
___
sufficient
to
survive
the
Ochoa Realty Corp. v. Faria,

__________________
_____
summary
815 F.2d
812, 814 n.1 (1st Cir. 1987).

Finally, we
leaps
of faith in
claim
of
add that
there are
some obvious gaps
appellant's reasoning
injury.
Apart from
this
allegation of injury
is problematical.
state
on
court hearing
learned
notes
that the
of
in support
concern,
court reporter
appellant's 1981
guilty
had lost
plea
of his
appellant's
At a December
his postconviction
and
motion, it
1985
was
her stenographic
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
-7-
failure of proof, it
substantiate
his
claim of
transcript
of the
therefore,
did not
material
likely was because appellant
1981
an
plea proceeding.
result
by defendants,
involuntary
from any
who
could not
plea without
That
dismissal,
confiscation of
could not
legal
have confiscated
transcript which did not exist.

A
generous
suggests
reading
that appellant also
legal material, such as

motions and
allegedly
of
some
of
may have
filings
claimed that
he had
copies of state court postconviction
supporting memoranda, among

confiscated.
appellant's
the legal
material
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
arguments."
Assuming
appellant's
attempts to
among
had
that
that
legal
vacate
the "miscellaneous
possession
you have
pointed out in
material,
his 1981
books and
your
related
to
guilty plea,
was
papers"
in defendants'
after July 1985, it appears likely that the judge

material
dismissal
of
his
in
any
state
event
court
and
unlikely
postconviction
that
the
proceeding
resulted from appellant's inability to produce copies of that

material.
-8-
Whether a plaintiff, who

of access to the
of
an
actual
deprivation.
1991).
him
an
alleges a denial of
courts, must plead and prove

injury
depends
Sowell v. Vose,
______
____
upon
the
941 F.2d 32,
his right
the existence
extent
of
the
34-35 (1st Cir.
"A prisoner need not show that the deprivation caused

independent
significant as
injury
to constitute
where
the
an injury
deprivation
in and of
is
so
itself."
Id. at 34.
___
"Missing documents do, in a sense, constitute an
'absolute' deprivation."
appellant
was
nevertheless,
defendants'
doubt,
not required
has to
not only
existence
conduct may
and the
courts.
on
at 35.
to show
show a
conduct
access to the
Id.
___
Even assuming
an actual
injury, he,
causal connection
between the
deprivation
Appellant's
the existence
that conduct does
of
of
injury, but
adversely impact on
proceeding
in
him, in
material, if it occurred,
was
involved.
deprivation occurred.
Affirmed.
_________
-9-
the
No
any
On this record,
his ability to participate in
which he
cast
legal material,
to have deprived
meaningful way, of his access to the courts.

any confiscation of legal
on
of
While the defendants'
appellant of his
not appear
the right
evidence of injury
of a deprivation, as well.
have deprived
that
did not
any court
constitutional

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USCA1 Opinion

May 20, 1992

[NOT FOR PUBLICATION]

Paul Simmons on brief pro se.

appellant, Paul Simmons,

we reversed the district

appellant's complaint for failure to state a claim.

an allegation of intentional violation of the right of access

1983 and that

appellant had alleged facts adequate to show more than simply

deprivation of his right

the courts, protected as a substantive, constitutional right.

reinstated, we cautioned appellant

that, on remand, he still

from the defendants'

his legal material,

show the injury

of his right of access to the courts.

claimed that, had

guilty plea to a 1981 charge of armed robbery;

(2) the state

and pursuant to which

additional 18-20 years, would have been dismissed.

motion for summary judgment.

we have recited countless times, we review the grant

of summary judgment de novo.

is "any genuine factual

E.g., Rodriques v. Furtado, 950

access to the courts

defendants' conduct was causally

1983, appellant has to show an

intentional deprivation of his right of

477 U.S. 242, 250 (1986).

to establish liability under

issue[] that properly

v. Liberty Lobby, Inc.,

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,

559 (1st Cir. 1989).

The defendants took possession of my property.

defendants respond: Appellant lived in an

legal material; rather, they are saying that they do not

His filings have always recited that he "was told"

that his legal material

had legal material

was not among his

was picked up by Robert Lockett.

Accepting the premise

that appellant had legal material among his personal property

that it was not

inference he then asks

confiscated it (b) with the intent to interfere with (or

there when the

property was retrieved,

v. Vance, 868 F.2d 9,

of access to the courts.

18 (1st Cir. 1989)) his right

The Court has stated that

Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (internal

v. General Elec. Co., 950 F.2d