### 1 ___________ No. 95-3901

___________ Chris Myers, Jr., David Allen * Sheldon, and Kurtis D. * Strohbehn, * *

Appellants, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Thomas Hundley, Ruth McVay, * Jim Helling, John Emmett, * Debbie Nichols, Mike Anderson, * Ron Welder, and Sally Halford, * * Appellees. *

___________ Submitted: September 12, 1996 Filed: November 27, 1996

___________ Before McMILLIAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge. Certain inmates at the Iowa State Penitentiary ("ISP") challeng ed the prison's idle-pay policy, and the district court granted the defendants' mot ionfor summary judgment. We affirm in part, reverse in part, an d remand.

I. Inmates in administrative segregatio n at the Iowa State Penitentiary receive $7.7 0 per month in idle pay. From this sum, they must bu y necessary hygiene supplies (such as soap and too thpaste), non-prescription medications, and stamps and supplies

### 2

for legal mail. The inmates contend that $7.70 per month is not enough to pay for their persona l necessities and the expenses associated with legal mail, and that they are therefore forced to choo se between being clean and pursui ng legal claims. They filed an action under 42 U.S.C. § 1983 , claimi ng that having to make this choice violates their constitutiona l right of access to the courts. The distr ict court granted defendants' motion for summary judgment, relying on our opinion in Blaise v. Fenn , 48 F.3d 337, 340 (8th Cir. 1995) , which held that a som ewhat similar idle-pay allowance was constitutional. Indeciding the motion for summary judgment, the district court asserted that the inmates had presented no proof that they could not afford stamps from their allowance or that a lack of postage had actually prejudice d them, and it noted that the plaintiffs had positive balances in thei r
accou nts when they filed their petition. Because it reasoned that th e inmates themselves decide how much of their accounts to spend on stamps an d suppli es, the district court granted the defendants' motion for summar y judgment. Nine months after the court entered its order, the Supreme Cour t refined the contours of an inmate's right of acc ess to the courts in Lewis v. Casey , --- U.S. ---, 116 S. Ct. 2174 (1996).

II. In Blaise , we held that a similar idle-pay allowance of $7.70 wa s constitutional. Blaise , 48 F.3d at 340. In that case, however, inmates received basic hygiene supplies free of charge and could therefore spend all of their allowance on legal mail. Id. Blai se thus did not answer the ques tionwhether an idle-pay allowance of $7.70 that must cover bot h hygiene supplies and legal mailing costs is constitutional.

As we eva luate ISP's idle-pay policy, we must bear in mind that a lon g-term, repeated deprivation of adequate hygiene supplies violate s inmates' Eighth Amendment rights. See Howard v. Adkison ,

### 3

887 F.2d 134, 137 (8th Cir. 1989). Prisons may either regularly provide these supplies to inmates free of charge, or they may give inmates a sufficient allowance with which to buy them. ISP chooses the latter, in the form of a mixed allowance for both hygiene supplies and legal mail

. Therefo re, the inmates' legal mail allowance is not $7.70, but rathe r whateve r is left over after they have met their hygiene needs. We mus t thus determine whether these leftover sums force indigent inmates into a Hobson's choice between their Eighth and Fourteenth Amendment rights.

Inmates undeniably enjoy a constitutional right of access to th e
cour ts and the legal system. Lewis v. Casey , --- U.S. ---, 116 S. Ct

. 2174, 2179 (1996); Bo unds v. Smith , 430 U.S. 817, 821 (1977). To protect that rig ht, prisons must provide inmates with some access to lega l materials or to legal assistance so that inmates can prepare and pursu e complaints, and with some ability to mail these complaints and relate d legal correspondence once prepared. Casey , 116 S . Ct. at 2180; Bounds , 430 U.S. at 82 4-28. Inmates do not have a right, however, either to la w libraries or to unlimited stamp allowances for legal mail. Instead, the dut yto make such arrangements is bounded by the inmates' right o f meaningful access to the courts. Casey , 116 S. Ct. at 2180; Bounds , 430 U.S. at 828.

To state a claim that a law library or legal assistance progra m violate s this right, inmates must assert that they suffered an actua l injury to pending or contemplated legal claims. Casey , 116 S. Ct. at 2180

. Allegi ng theoretical inadequacies is insufficient. Id. Inmates mus t instead show, for example, that a complaint that they prepared wa s dismis sed due to a technical requirement that a library's inadequacie s prevented them from knowing, or that a library was so inadequate that it prevented them from filing a complaint for actionable harm at all. Id.

### 4 We believe that a similar principle applies to cases like the p resent one. The underlying harm that the Constitution requires stamp allowances and legal-assistance programs to prevent is identical: a lost, rejected, or impeded legal claim. Therefore, inmates alle ging that a prison's idlepayallowance is inadequate must also assert that they suffered actua l inj uryto pending or contemplated legal claims in order to state a
con stitutional claim. In cases of mixed allowances (such as the presen t
cas e), inmates must specifically assert that the amounts left over fro m th eir allowances after purchasing personal necessities caused actua l injury. Inmates could aver, for example, that the leftover amoun t prevented them from buying stamps to file a clai m initially, or they could allege that a lack of postage kept them from meeting a deadline and that
a court di smissed their case for that reason. We believe that suc h complai nts would state claims under the Fifth Amendment. But inmate s cannot state a claim merely by alleging that a prison did not give the m "enough" money for both hygiene supplies and stamps.

We turn to an examination of the district court's order with thes e princi ples in mind. As we noted above, the district court found th e inmate s' pleadings inadequate because they had not asserted that thei r allowance would not cover their legal mail or th at they were prejudiced in anypending or contemplated legal proceeding. With respect to Myers, we disagree. He did more than complain that the prison did not give hi m "enou gh" money to pay for both stamps and personal necessities. Myer s specificallylisted the prices of the basic hygiene supplies on which he had to spend his idle pay, and stated that for lack of funds, he was force d to miss co urt deadlines and to dismiss cases. Such allegations rais e material factual issues under Casey . The other plaintiffs, however, faile d to asser t that ISP's policy had prejudiced them in any pending o r contemplated legal pr oceeding. With respect to Sheldon and Strohbehn, we therefore agree with the district court's grant of summary judgment to the defendants.

### 5 III. Because disputes over factual issues material to the resolution o f My ers's claim do exist, the district court erred in granting th e defendants' motion for summary judgment against him. We therefore reverse and remand for further proceedings on Myers's claim and affirm the distric t court's judgment in all other respects.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.