## 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, As sistant 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, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

2 A Martinez report is a judicially authorized investigative re port prepared by prison officials to help the court determine if “a pro se prisoner’s allegations have any factual or legal basis.” Northington v. Jackso n , 973 F.2d 1518, 1521 (10th Cir. 1992). -2- Plaintiff Willie J. Simkins is an inmate at the Hut chinson Correctional Facility (“HCF”). He brought this action under 42 U.S.C. § 1983 to redress legal injury allegedly caused while he was temporarily tr ansferred 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 g rounds. The district court rejected some of defendants’ arg uments, 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 inten tionally 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-3-

in March 2001, he learned that legal mail sent to h im in the interim had been held by HCF staff. Some mail items that were held relat ed 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 su mmary judgment in April 2000, which was deemed uncontested (resulting in admissio n 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 r eturned in 2001. Plaintiff filed this § 1983 action claiming that th e failure of HCF personnel to forward his legal mail interfered with his rightof access to the courts. The district court did not gainsay the constitutional b asis of plaintiff’s claim, but held that he had not shown an associated injury sufficie nt to give him standing to seek judicial redress for the asserted constitutional vi olation. The court also held that plaintiff’s claim would, in any event, merit dismis sal on qualified immunity grounds. We of course recognize the analytical pri macy of standing deficiencies, but as we conclude that there is no such deficiencyhere, we choose to begin with the qualified immunity issue for ease and clarity o f exposition.
II Our analysis of qualified immunity involves two ste ps. The threshold inquiry is whether the alleged facts (or, on summary judgment, the evidenced facts) taken in the light most favorable to the pla intiff show a constitutional-4-

violation. Saucier v. Katz , 533 U.S. 194, 201 (2001). “If no constitutional right would have been violated were the allegations estab lished, 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 partic ular case before the court, not as a general, abstract matter: “The relevant, disposi tive inquiry in determining whether a right is clearly established is whether i t would be clear to a reasonable officer [in the defendant’s position] that his cond uct 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 demo nstrated any constitutionally prohibited conduct. Although it did not deny that holding up legal mail may violate an inmate’s right of access, the district c ourt nonetheless held that such a violation would require intentional, not merely neg ligent, conduct and concluded that this case did not involve such conduct. In ou r 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]vi dence 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. Fi tzgerald , 457 U.S. 800 (1982)). In certain circumstances there may be rea son 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 inan impediment to court access.” Gregory v. Nunn , 895 F.2d 413, 415 n.2 (7th Cir. 1990) (noting butnot adopting distinction). Here, however, because the connectio n 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, rathe r, immediate and obvious, the distinction lacks legal substance. Deliberate delay in the delivery of inmate legal mail is sufficient to satisfy the intent requiremen t for a right-of-access claim. See Gramegna v. Johnson , 846 F.2d 675, 677 (11th Cir. 1988); Jackson , 789 F.2d at (continued...) -5- A In order to provide inmates a meaningful right of a ccess to the courts, “states are required to provide affirmative assistance in the preparation of legal papers in cases involving constitutional rights andother civil rights actions related to their incarceration, but in all other types of c ivil 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 cl aim that a right of access to the courts has been impeded requires him to allege inte ntional conduct interfering with his legal mail, and does not require an additional showing of malicious motive. 33 (...continued)

311.

4 We note that the mail in question was sent in envel opes clearly indicating the legal nature of their contents. -6- 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 imped ed 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 distri ct 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 d istinguishing 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 [pla intiff] 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).) Refle cting a course of conduct deliberately undertaken, the emphasized language su ggests no evidence of negligent omission or inadvertence. The affidavit recites an HCF regulation,-7-

however, that prescribes precisely the opposite cou rse to that which Keen took: “Inmates who are out to court are to have their mai l forwarded to the county jail in the county in which the court resides, unless anoth er 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 al though she knew mail was forwarded to inmates transferred out to courts with in Kansas, she “was trained that I am to hold the mail for inmates sent out to courtout of state until their return to HCF.” (R. Doc. 32, ex. 4 at 2.) Because the regul ation makes no exception for inmates transferred out of state, it seems clear th at Ms. Keen, as she states, “did not understand that mail for inmates out to court o ut 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 contravent ion of prison regulations. That course of action is not mere negligence; rather, itis 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 n ow ask whether the law was clearly established. Under this second qualified i mmunity inquiry, the critical question is whether a reasonable prison official sh ould have known that delaying-8-

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 inte rference with inmate legal mail that the “prisoner’s constitutional righ t of access to the courts is clearly established,” Treff , 74 F.3d at 194, the second inquiry is easily reso lved. 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 so me 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 righ t”). Plaintiff has asserted the violation of a clearly e stablished constitutional right. Accordingly, the entry of summary judgment for defendants on the basis of qualified immunity was error.-9- III With a clear understanding of the nature of the und erlying claim, we turn now to the question whether plaintiff suffered a co gnizable 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) admissionof 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 summaryjudgment on the fact that “[p]laintiff provides no evidence that had he recei ved 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 t hat the claim hindered or impeded by the defendant necessarily would have pre vailed. 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 res olve the claim in favor of the plaintiff. In order to prevail on a § 1983 right o f access claim and substantiate more than nominal damages, a plaintiff may have to engage the merits of the underlying case. -10- 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 m isconduct, 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 forhis being denied access to the courts, he would have wo n 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-11-

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 con sideration of those materials). Here, however, the prejudice from the interference with plaintiff’s legal mail is directly and inextricably tied to the adverse dispo sition of his underlying case and the loss of his right to appeal from that dispositi on. 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 a ction for lack of standing under Lewis cannot be supported.
IV For the reasons discussed above, we conclude that P laintiff 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 argum ents currently advanced and evidence currently of record. Accordingly, we REVERSE the district court and
REMAND for further proceedings consistent with this opini on. Appellant’s-12-

“Motion for Court Order” directing appellees to dis miss the attorney general’s office and hire private counsel is DENIED . We remind appellant that he must continue making partial filing fee payments in acco rd with 28 U.S.C. § 1915(b).