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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BILLY NEWBERRY,

Plaintiff,

v.

CAPT. F. FINSEN, et al.,

Defendants.

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CASE NO. C06-1018-MJP-MAT

REPORT AND RECOMMENDATION

Plaintiff is currently incarcerated in the Snohomish County Jail (“Jail”) in Everett,

Washington. He has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, along with

an application for leave to proceed in forma pauperis (“IFP application”). The complaint has not

been served on defendants.

The court has reviewed the complaint pursuant to 28 U.S.C. § 1915A. Plaintiff alleges

that he is being denied access to the Jail’s law library. (Complaint at 3). Specifically, he alleges

that the Jail grants library access only to those inmates who are representing themselves in an ongoing civil or criminal matter. (Id. at 4). For the reasons stated below, the court recommends that

the complaint and action be dismissed without prejudice.

In describing the right of access to the courts, the Supreme Court stated that the right

“guarantees no particular methodology but rather the conferral of a capability – the capability of

Case 2:06-cv-01018-MJP Document 3 Filed 08/01/2006 Page 1 of 2

Newberry v. Finsen et al Doc. 3

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REPORT AND RECOMMENDATION

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bringing contemplated challenges to sentences or conditions of confinement before the courts . .

. . [It is this capability] rather than the capability of turning pages in a law library, that is the

touchstone” of the right. Lewis v. Casey, 518 U.S. 343, 356-57 (1996). On the same day that

plaintiff submitted the instant § 1983 complaint, plaintiff also submitted two other complaints,

which have been assigned case numbers C06-1017-RSM-MJB and C06-1019-MJP-MJB. Thus,

it appears that even if plaintiff’s allegations were true, lack of access to a law library has not

impeded his ability to file actions in federal court. Therefore, it appears that plaintiff has the

“capability” to challenge conditions of confinement that the Supreme Court referred to as

paramount in an “access to courts” claim.

Moreover, it now appears that because he is representing himself in these two other

pending lawsuits, plaintiff will no longer be barred access to the law library under the Jail policy

that he seeks to challenge here. Thus, it appears that plaintiff has not suffered an actual injury

stemming from the alleged violation, a jurisdictional requirement that flows from standing doctrine

and may not be waived. See Lewis v. Casey, 518 U.S. 343, 349 (1996). Accordingly, plaintiff’s

complaint and this action should be dismissed for failure to state a claim upon which relief can be

granted. In addition, plaintiff’s IFP application may be denied as moot. A proposed Order is

attached.

DATED this 31st day of July, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

Case 2:06-cv-01018-MJP Document 3 Filed 08/01/2006 Page 2 of 2