F I L E D

United States Court of Appeals

Tenth Circuit

MAY 9 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIE J. SIMKINS,

Plaintiff-Appellant,

v.

LOUIS E. BRUCE; SAM CLINE;

HUTCHINSON CORRECTIONAL

FACILITY MAIL ROOM STAFF; SIX

UNKNOWN DEFENDANTS,

Defendants-Appellees.

No. 04-3072

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 01-CV-3280-KHV)

Submitted on the briefs:

Willie J. Simkins, pro se.

Phill Kline, Attorney General, Ralph J. De Zago, Assistant Attorney General,

Topeka, Kansas, for Defendants-Appellees.

Before LUCERO, McKAY, and PORFILIO, Circuit Judges.

LUCERO, Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 

2 A Martinez report is a judicially authorized investigative report prepared by

prison officials to help the court determine if “a pro se prisoner’s allegations have

any factual or legal basis.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th

Cir. 1992).

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Plaintiff Willie J. Simkins is an inmate at the Hutchinson Correctional

Facility (“HCF”). He brought this action under 42 U.S.C. § 1983 to redress legal

injury allegedly caused while he was temporarily transferred to another facility

and his legal mail was held at HCF rather than forwarded to him. 1 After filing a

Martinez report, 2 defendants moved for summary judgment on various grounds.

The district court rejected some of defendants’ arguments, but ultimately granted

the motion on two alternative bases: (1) plaintiff failed to show that an injury

resulted from his belated receipt of the mail, and (2) defendants were entitled to

qualified immunity because they had not acted intentionally or maliciously. We

review the district court’s summary judgment determination de novo, Hayes v.

Marriott , 70 F.3d 1144, 1146 (10 th Cir. 1995), and REVERSE for the reasons

stated below.

I

The basic facts are not in dispute. In March 2000, plaintiff was transferred

from HCF to a jail in Boulder, Colorado, for court proceedings. Upon his return
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in March 2001, he learned that legal mail sent to him in the interim had been held

by HCF staff. Some mail items that were held related to a federal civil rights

action he had initiated concerning conditions at a Saline County, Kansas jail. The

defendants in that action had filed a motion for summary judgment in April 2000,

which was deemed uncontested (resulting in admission of the defendants’ factual

allegations) and granted on the merits by an order entered in July 2000. The

motion and order were still at HCF when plaintiff returned in 2001.

Plaintiff filed this § 1983 action claiming that the failure of HCF personnel

to forward his legal mail interfered with his right of access to the courts. The

district court did not gainsay the constitutional basis of plaintiff’s claim, but held

that he had not shown an associated injury sufficient to give him standing to seek

judicial redress for the asserted constitutional violation. The court also held that

plaintiff’s claim would, in any event, merit dismissal on qualified immunity

grounds. We of course recognize the analytical primacy of standing deficiencies,

but as we conclude that there is no such deficiency here, we choose to begin with

the qualified immunity issue for ease and clarity of exposition.

II

Our analysis of qualified immunity involves two steps. The threshold

inquiry is whether the alleged facts (or, on summary judgment, the evidenced

facts) taken in the light most favorable to the plaintiff show a constitutional
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violation. Saucier v. Katz , 533 U.S. 194, 201 (2001). “If no constitutional right

would have been violated were the allegations established, there is no necessity for

further inquires concerning qualified immunity.” Id. “On the other hand, if a

violation could be made out on a favorable view of the parties’ submissions, the

next, sequential step is to ask whether the right was clearly established.” Id. This

question must be posed in the context of the particular case before the court, not as

a general, abstract matter: “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable

officer [in the defendant’s position] that his conduct was unlawful in the situation

he confronted.” Id. at 202; see also Brosseau v. Haugen , 125 S.Ct. 596, 599

(2004) (emphasizing inquiry is to be undertaken in light of the specific context of

the case). 

Invoking this two-step framework, the district court resolved the matter at

the first step, holding that plaintiff had not demonstrated any constitutionally

prohibited conduct. Although it did not deny that holding up legal mail may

violate an inmate’s right of access, the district court nonetheless held that such a

violation would require intentional, not merely negligent, conduct and concluded

that this case did not involve such conduct. In our view, however, the facts of

record and the authority cited by the district court demonstrate why this case

involves intentional conduct, not mere negligence.
3 The Supreme Court has held that qualified immunity is governed by an

objective reasonableness standard, and thus, “[e]vidence concerning the

defendant’s subjective intent is simply irrelevant to that defense.” Crawford-El v.

Britton, 523 U.S. 574, 588 (1998) (discussing Harlow v. Fitzgerald, 457 U.S. 800

(1982)). In certain circumstances there may be reason to distinguish “between an

intentional act by prison officials to impede a prisoner’s access to the courts and

an intentional act that [only] results in an impediment to court access.” Gregory

v. Nunn, 895 F.2d 413, 415 n.2 (7th Cir. 1990) (noting but not adopting

distinction). Here, however, because the connection between the act (withholding

inmate’s legal mail) and the impediment to access (inmate’s non-receipt of legal

mail) is neither indirect nor unexpected but, rather, immediate and obvious, the

distinction lacks legal substance. Deliberate delay in the delivery of inmate legal

mail is sufficient to satisfy the intent requirement for a right-of-access claim. See

Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir. 1988); Jackson, 789 F.2d at

(continued...)

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A

In order to provide inmates a meaningful right of access to the courts,

“states are required to provide affirmative assistance in the preparation of legal

papers in cases involving constitutional rights and other civil rights actions related

to their incarceration, but in all other types of civil actions, states may not erect

barriers that impede the right of access of incarcerated persons.” Snyder v. Nolen ,

380 F.3d 279, 290-91 (7 th Cir. 2004) (quotation omitted); see also Green v.

Johnson , 977 F.2d 1383, 1389 (10 th Cir. 1992) (“ Any deliberate impediment to

access [to the courts], even a delay of access, may constitute a constitutional

deprivation”). In the present case, plaintiff’s claim that a right of access to the

courts has been impeded requires him to allege intentional conduct interfering with

his legal mail, and does not require an additional showing of malicious motive. 3
3

(...continued)

311.

4 We note that the mail in question was sent in envelopes clearly indicating

the legal nature of their contents. 

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See Treff v. Galetka , 74 F.3d 191, 195 (10 th Cir. 1996); Jackson v. Procunier , 789

F.2d 307, 311 (5 th Cir. 1986); Washington v. James , 782 F.2d 1134, 1139 (2d Cir.

1986). By contrast, when access to courts is impeded by mere negligence, as when

legal mail is inadvertently lost or misdirected, no constitutional violation occurs. 

See Pink v. Lester , 52 F.3d 73, 77 (4 th Cir. 1995) (discussing cases from several

circuits). In its Memorandum and Order, the district court relied on cases

involving inadvertently lost, not intentionally held mail. See, e.g. , Richardson v.

McDonnell , 841 F.2d 120, 122 (5 th Cir. 1988) (holding that unintentional loss of

mail does not support access-to-courts claims and distinguishing situations

involving intentional withholding of mail). 

In the present case, the HCF mail room supervisor, Patricia Keen, submitted

an affidavit stating: “I did receive mail for [plaintiff] after he was removed from

this facility to attend court in Colorado on March 3, 2000, and, in accordance with

my training, I held the mail until [plaintiff] returned from court on March 21,

2001.” 4 (R. Doc. 32, ex. 4 at 1 (emphasis added).) Reflecting a course of conduct

deliberately undertaken, the emphasized language suggests no evidence of

negligent omission or inadvertence. The affidavit recites an HCF regulation,
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however, that prescribes precisely the opposite course to that which Keen took: 

“Inmates who are out to court are to have their mail forwarded to the county jail in

the county in which the court resides, unless another address is supplied by the

court.” (R. Doc. 32, ex. 4 at 2.) Addressing the inconsistency between her

conduct and the regulation, Ms. Keen states that although she knew mail was

forwarded to inmates transferred out to courts within Kansas, she “was trained that

I am to hold the mail for inmates sent out to court out of state until their return to

HCF.” (R. Doc. 32, ex. 4 at 2.) Because the regulation makes no exception for

inmates transferred out of state, it seems clear that Ms. Keen, as she states, “did

not understand that mail for inmates out to court out of state was to be forwarded.” 

Id. 

Thus, defendants’ own evidence demonstrates that Ms. Keen intentionally

held plaintiff’s mail for over a year in contravention of prison regulations. That

course of action is not mere negligence; rather, it is intentional conduct violating

plaintiff’s right of access to the courts. 

B

Having established that plaintiff’s right of access to the courts was violated

by Ms. Keen’s ignorance of governing law, we must now ask whether the law was

clearly established. Under this second qualified immunity inquiry, the critical

question is whether a reasonable prison official should have known that delaying
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delivery of plaintiff’s legal mail for over a year would violate his right of access to

courts. See Saucier, 533 U.S. at 201 (requiring this inquiry “be undertaken in light

of the specific context of the case, not as a broad general proposition”).

Because we have held in the context of alleged interference with inmate

legal mail that the “prisoner’s constitutional right of access to the courts is clearly

established,” Treff , 74 F.3d at 194, the second inquiry is easily resolved. Indeed,

the principle that unimpeded transmission of inmate legal mail is the “most

obvious and formal manifestation” of the right of access to the courts, Crowder v.

Sinyard , 884 F.2d 804, 811 (5 th Cir. 1989), has been clearly established for some

time now. See , e.g. , Gramegna , 846 F.2d at 677; Jackson , 789 F.2d at 310-11; see

also Henriksen v. Bentley , 644 F.2d 852, 854 (10 th Cir. 1981) (holding, in civil

rights suit based on clerk’s unexplained failure to pick up inmate’s legal mail after

notification of its existence, that “actions which prevent an individual from

communicating with a court could constitute denial of access to the court,” and

thereby “violate[] a recognized constitutional right”). 

Plaintiff has asserted the violation of a clearly established constitutional

right. Accordingly, the entry of summary judgment for defendants on the basis of

qualified immunity was error.
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III

With a clear understanding of the nature of the underlying claim, we turn

now to the question whether plaintiff suffered a cognizable injury sufficient to

afford him standing to seek relief. He must show that non-delivery of his legal

mail resulted in “actual injury” by “frustrat[ing],” “imped[ing],” or “hinder[ing]

his efforts to pursue a legal claim.” Lewis v. Casey , 518 U.S. 343, 351-53 & n.3

(1996). Given that plaintiff’s failure to receive the summary judgment motion and

order in the prior action resulted in (1) admission of the defendants’ version of the

facts, (2) inability to argue the legal issues, and (3) loss of an opportunity to

appeal, this case presents a compelling example of an impediment or hindrance

demonstrating actual injury under Lewis. The district court, however, based its

conclusion that defendants were entitled to summary judgment on the fact that

“[p]laintiff provides no evidence that had he received a copy of [the] motion for

summary judgment in [the prior case], he would have filed a meritorious response”

and, hence, had not shown “that defendants’ failure to forward his mail caused him

to lose [the case].” 

Contrary to the district court’s analysis, Lewis does not suggest that the

plaintiff must prove a case within a case to show that the claim hindered or

impeded by the defendant necessarily would have prevailed. The Court took pains

to explain that “[d]epriving someone of an arguable (though not yet established)
5

 The requirements recognized in Lewis relate to the threshold determination

whether the plaintiff has standing to assert a right-of-access claim. See Lewis,

518 U.S. at 349; Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996). 

Satisfying such requirements obviously does not resolve the claim in favor of the

plaintiff. In order to prevail on a § 1983 right of access claim and substantiate

more than nominal damages, a plaintiff may have to engage the merits of the

underlying case. 

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claim inflicts actual injury,” Lewis, 518 U.S. at 353 n.3 (emphasis added). 

Moreover, the Court explained that cognizable harm arises not only when a claim

is lost or rejected on account of the defendant’s misconduct, but also when the

plaintiff’s efforts to pursue a claim are impeded. See id. at 351, 353 & n.4. 

Consistent with these points, a plaintiff need not show that a claim with which a

defendant interfered would have prevailed, but only that it was not frivolous. 5 Id.

at 353 & n.3. See also Walters v. Edgar , 163 F.3d 430, 434 (7 th Cir. 1998)

(holding that to satisfy Lewis, plaintiff need not show “that had it not been for his

being denied access to the courts, he would have won at least one court case”;

rather, plaintiff need only show “that the blockage prevented him from litigating a

nonfrivolous case”); Penrod , 94 F.3d at 1403 ( requiring prisoner, under Lewis, to

show that defendants “hindered the prisoner’s efforts to pursue a nonfrivolous

claim”). 

Even when the underlying case is not frivolous, the nature of its adverse

disposition can be relevant to the Lewis standing inquiry. Where, for example, the

underlying case was adversely decided on the basis of a deficiency logically and
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practically unrelated to the impediment created by the right-of-access defendants,

courts have held that the plaintiff has suffered no actual injury associated with

their constitutional misconduct. See, e.g. , Deleon v. Doe , 361 F.3d 93, 94 (2d Cir.

2004) (holding plaintiff had not shown actual injury resulting from delay caused

by interference with mail where prior case was not dismissed for his untimely

submission of materials but on the merits after consideration of those materials). 

Here, however, the prejudice from the interference with plaintiff’s legal mail is

directly and inextricably tied to the adverse disposition of his underlying case and

the loss of his right to appeal from that disposition. Moreover, there is no

indication that any court ever considered that case frivolous, and the summary

judgment order entered therein does not provide us with a sufficient basis for

deeming it frivolous at this point. 

We therefore hold that a dismissal of the present action for lack of standing

under Lewis cannot be supported. 

IV

For the reasons discussed above, we conclude that Plaintiff has standing to

assert a claim for violation of his right of access to the courts, and that defendants

are not entitled to qualified immunity on the arguments currently advanced and

evidence currently of record. Accordingly, we REVERSE the district court and 

REMAND for further proceedings consistent with this opinion. Appellant’s
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“Motion for Court Order” directing appellees to dismiss the attorney general’s

office and hire private counsel is DENIED . We remind appellant that he must

continue making partial filing fee payments in accord with 28 U.S.C. § 1915(b).