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. e du/thir dc ir c uit_1997/249Filed October 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 1810

RICHARD REYNOLDS; DAVID BORRELL; ROLANDO

FELIX; JULIO ARACHO; ROBERT SANTILLO; KURT

MIHALSKI; LUIS SANTIAGO

- ALVARADO; JESUS DELEON,

AND THESE SIMILARLY SIT UATED INDIVIDUALS,

Appellants

v.

GEORGE WAGNER, WARDEN, DIRECTOR OF PENNA.

INSTITUTIONAL HEALTH SERVICES INC.; CARL

HOFFMAN, JR., SUPERVISOR OF PENNA. INSTITUTIONAL

HEALTH SERVICES; CAROL COLBURN

WASHINGTON LEGAL

Amicus

- A ppellee

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 94

- 06663)

Argued: April 18, 1997

Before: GREENBERG, ALITO, and ROSENN,

Circuit Judges

(Opinion Filed: October 22, 1997)

JULES EPSTEIN (Argued)

Kairys, Rudovsky, Kalman,

Epstein & Messing

924 Cherry Street

- 5th Floor

Philadelphia, PA 19107

Angus R. Love

Pennsylvania Institutional Law

Project

924 Cherry St., Suite #523

Philadelphia, PA 19107

Counsel for Appellants

DONALD E. WIEAND, JR. (Argued)Stevens & Lee

P.O. Box 20830

Lehigh Valley, PA 18002

Counsel for Appellee

Daniel J. Popeo

Paul D. Kamenar

Washington Legal Foundation

2009 Massachusetts Avenue, N.W.

Washington, D.C. 20036

Amicus

- Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Several years ago, the Berks County Pris on instituted a

"fee

- for

- service" policy under which it began charging

inmates a small fee when they sought health care. Under

this policy, indigent inmates are guaranteed care, but their

prison accounts are debited for the relevant charges. In this

a ppeal, we consider constitutional challenges to this policy.

I.

A. The following facts are uncontested or were found by

the district court. See Reynolds v. Wagner, 936 F. Supp.

2

1216, 1219

- 23 (E.D. Pa. 1996 ). The Berks County Prison

houses both pre

- trial detainees and sentenced prisoners. Of

the institution's average daily population of approximately

775, between 100 and 120 are federal inmates housed

under contract with the federal government. The remai ning

550 inmates are held under state law. Approximately 35%

of the inmate population is Hispanic, and approximately

10% of the population speaks only Spanish.

The Berks County Prison styles itself as a "new

generation prison" based on the philosoph y of providing

inmates with more choices in their daily lives so that they

can learn to act more responsibly. In accordance with this

approach, the prison, in 1993, adopted a program under

which the inmates held under state law are generally

charged s mall fees when they seek health care. The

purpose of the fee program is not to generate revenue but

to "instill inmate responsibility and discourage abuse of

sick call." Reynolds, 936 F. Supp. at 1219.Under the program, inmates are charged a $3 fee for a

medical evaluation by a nurse. (This is referred to as "sick

call.") If a nurse refers an inmate to the doctor after the

initial sick call, there is no charge to see the doctor.

However, if the inmate chooses to see the doctor without a

referral , there is a $5 charge. If the doctor decides that the

inmate should have been referred at the initial screening,

the $5 charge is waived. Inmates are not charged for follow

up visits ordered by a doctor or nurse and are not charged

for legitimate ret urn visits for a condition for which they

have already been treated. Inmates are not charged for

prescription medicine, and over

- the

- counter medication is

issued by the medical department if deemed necessary for

an inmate's treatment. Over

- the

- counter medication is also

available for purchase from the commissary.

The Inmate Handbook sets forth certain exceptions to the

fee requirement. Initial commitment screenings, psychiatric

services, and emergency services1 are free. Similarly, there

________ _________________________________________________________

1. Some accidents qualify as emergencies, but some do not. For example,

the Inmate Handbook explains that while a cut requiring stitches is an

emergency and does not require a fee, a twisted an kle from activities in

the recreation yard is not an emergency. In addition, treatment required

as a result of activity in violation of prison policy results in a fee.

3

is no fee for the treatment of chronic ill nesses, including

such treatment as changes of dressings, colostomy

changes, and treatment for conditions such as diabetes,

hypertension, or AIDS related syndrome. The determination

of whether a condition at sick call is a chronic illness or

emergency is made by a member of the nursing staff. The

assessment of an inmate's condition is made independently

and regardless of his financial status.

Whenever medical service is provided, an inmate is

required to sign a "Medical Service Fee Form." Id. at 1220.

If the inmate refuses to sign the form, a member of the

medical staff initials the form, and the fee is deducted from

the inmate's account. No inmate is ever refused treatment

because he lacks funds in his account, but the account of

an inmate w ho lacks funds is nevertheless debited, and a

negative balance is thus created.

If an inmate's account has a negative balance, 50% of his

incoming funds are used to satisfy the negative account,

and the the remainder can be used for personal purchase s.

This 50% deduction continues until the negative balance is

eliminated. At discharge, any available funds are creditedtowards the inmate's negative balance and the remainder,

if any, is paid to the inmate. Negative balances that remain

on an inmate 's account after discharge are maintained on

the inmate's permanent record. If the inmate is

recommitted, the negative balance is imposed again. In

addition, if an inmate departs the prison with a negative

balance, a collection agency may be employed t o collect the

debt.

The nurse who makes the initial assessment of an

inmate's condition informs the prisoner about the channels

through which a fee assessment can be challenged. An

inmate who disagrees with a fee assessment mustfirst file

an "inmat e communication form," which is reviewed by the

medical department. Id. at 1221. An inmate who receives

an unfavorable response to his inmate communication may

submit a grievance to a prison committee2 consisting of the

_______________________________ __________________________________

2. The Inmate Handbook states that "a grievance may not be filed simply

because you disagree with a staff member's decision or instructions,

4

warden, the assistant warden, th e deputy warden for

treatment services, the deputy warden for custody services,

and the director of administrative services. Grievances are

decided by a majority vote of the committee whose

decisions may be appealed to the Berks County Prison

Board.

Details on the workings of the program are contained in

the Inmate Handbook. Copies of the Inmate Handbook are

provided in each housing unit, in the library, and in every

department of the prison. During orientation, a prison

officer and a counselor review the contents of the Inmate

Handbook with the inmates and answer questions.

Although there is no copy of the Inmate Handbook in

Spanish, Spanish

- speaking officers and counselors explain

the Handbook to all Spanish

- speaking inmates during

orienta tion. Moreover, the medical department employs "at

least three nurses" who are fluent in Spanish. Id. at 1222.

B. In November 1994, individual inmates filed this

action under 42 U.S.C. S 1983, challenging the

constitutionality of the program. The ori ginal complaint was

subsequently amended, and the case was certified as a

class action in February 1995. Named as defendants were

the Berks County Prison and its warden.3

In August 1995, the district court issued an order

bifurcating trial on the i ssues of liability and damages. In_________________________________________________________________

unless it meets the above criteria." Id. at 1221. Included in the "above

criteria" are grievances that concern alleged violations of jail policy.

The

warden of the Berks County Prison testified that grievances about fee

assessments fall into the category of complaints about violations of jail

policy and are thus proper. The district court credited the warden's

testimony that medical fee charges coul d be challenged by means of

grievances even though the wardens' testimony arguably conflicted with

the testimony of a deputy warden. There was also the testimony of two

inmates that they were aware that medical fee assessments could be

contested in thi s way.

3. The district court certified a class "consisting of all indigent

persons

who have been, are, or will be subjected to the challenged medical

services fee policy." Reynolds v. Wagner, 936 F. Supp. 1216, 1218 (E.D.

Pa. 1996).

5

May 1996, the court held a one

- day trial on the issue of

liability. At the conclusion of the trial, the district court

rejected the inmates' constitutional claims. See Reynolds v.

Wagner, supra. This appeal followed.

C. On appeal, the inmates challenge three of the district

court's holdings: (i) that the fee

- for

- service policy did not

constitute deliberate indifference to the inmates' serious

medical needs and therefore did not violate their Eighth

Amendment or Fourteent h Amendment rights; (ii) that the

fee

- for

- service program did not result in the taking of

inmate property without due process; and (iii) that the

program did not impermissibly infringe on the inmates'

First Amendment right of access to the courts.

T he Supreme Court has rejected strict scrutiny as the

appropriate standard of review for the constitutionality of

prison regulations. Turner v. Safley, 482 U.S. 78 (1987); see

also Monmouth County Corr. Inst. Inmates v. Lanzaro , 834

F.2d 326, 332 (3d C ir. 1987). Instead, the question is

whether the regulation is reasonably related to a legitimate

penological interest. Lanzaro, 834 F.2d at 332. In

determining the reasonableness of a challenged regulation,

we consider:

(1) the rational relat ionship between the regulation

and the governmental interest put forward to justify it;

(2) the existence of alternative means to exercise the

asserted right;(3) the impact on prison resources of accommodating

t he asserted right; and

(4) the existence of "ready alternatives" to

accommodate the asserted right at "de minimis" cost to

valid penological interests.

Id. (citation and footnote omitted).

The inmates' central claim concerns the validity of

regulations relating to the prison's provision of health care.

The specific standard applicable to an Eighth Amendment

claim concerning the denial of health care to inmates is the

two

- pronged standard enunciated in Estelle v. Gamble, 4 29

U.S. 97, 104 (1976). This standard requires a showing (1)

6

that the prison officials were deliberately indifferent to the

inmates' medical needs and (2) that those needs were

serious. Id. We apply the Estell e standard in the context of

the level of scrutiny set out by Turner.

II.

DELIBERATE INDIFFERENCE

A. The inmates make two separate sets of arguments as

to why the Berks County Prison program constitutes

"deliberate indifference" to their "serio us medical needs."

First, they contend that charging inmates for health care is

per se unconstitutional because the Constitution bars a

state from conditioning inmates' access to health care on

their "ability or willingness to pay." (Appellants' Br. at 13).

Second, the inmates maintain that even if a fee

- for

- service

program is not per se unconstitutional, the Berks County

Prison program is unconstitutional "as implemented."

B. Before addressing the merits of these arguments,

however, we must cons ider the defendants' contention that

the inmates lack standing because they "have

demonstrated no actual harm." (Appellees' Br. at 23). The

defendants contend that the inmates "offered no evidence to

support a finding that serious medical conditions we re

untreated or even that treatment was delayed because of

the medical fee policy." Id.

In making this argument, the defendants rely on Lewis v.

Casey, 116 S. Ct. 2174, 2179 (1996), in which the Supreme

Court held that because a class of inmates had not shown

widespread actual injury, the class could not challengecertain features of a state correctional system that allegedly

infringed upon the class's right of access to the courts. The

Court explained:

It is the role of courts to provi de relief to claimants, in

individual or class actions, who have suffered, or will

imminently suffer, actual harm; it is not the role of

courts, but that of the political branches, to shape the

institutions of government in such fashion as to

comply with the laws and the Constitution . . . .

7

[T]he distinction between the two roles would be

obliterated if, to invoke intervention of the courts, no

actual or imminent harm were needed, but merely the

status of being subject to a governmental institution

that was not organized or managed properly.

116 S. Ct. at 2179. Then, in an example on which the

defendants in this case rely, the Court stated:

If . . . a healthy inmate who had suffered no

deprivation of medical treatment were able to claim

violation of his constitutional right to medical care, see

Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed 2d 251,

97 S. Ct. 285 (1976), simply on the ground that the

prison medical facilities were inadequate, the essential

distinction between judge and executive would have

disappeared: it would have become a function of the

courts to assure adequate medical care in prison.

Id.

The inmates counter that this statement in Lewis is

dictum and that the Court's prior holding in Helling v.

McKinney, 509 U.S. 25 (1993), controls. In Helling, an

inmate brought a S 1983 action agai nst prison officials,

alleging violations of his Eighth Amendment Rights due to

exposure to environmental tobacco smoke. Id. The inmates

argue that the Helling Court specifically held that an Eighth

Amendment claim may be based on prison conditions tha t

pose an unreasonable risk to a prisoner's future health. Id.

at 33

- 34. Helling explained:

We have great difficulty agreeing that prison authorities

may not be deliberately indifferent to an inmate's

current health problems but may ignore a condition of

confinement that is sure or very likely to cause serious

illness and needless suffering the next week or month

or year.Id. at 33.

While we do not view the statement in Lewis as

necessarily inconsis tent with Helling, we need not attempt

to reconcile these precedents because the inmates' claims

clearly fail on the merits. See Norton v. Mathews, 427 U.S.

524, 530

- 31 (1976) (where merits can be resolved in favor

8

of party challenging jurisdiction, resolution of complex

jurisdictional issue may be avoided).

C. The "Per Se" Challenge. The inmates assert that the

prison, in charging them a modest fee for health care, is

violating the Eighth Amendment's ba r on "cruel and

unusual punishment." The Eighth Amendment applies to

sentenced prisoners, but the Due Process Clause of the

Fourteenth Amendment operates to provide similar

protection for pre

- trial detainees. See Boring v. Kozakiewicz,

833 F.2d 468, 4 72 (3d Cir. 1987) ("[T]he Due Process rights

of a pre

- trial detainee are at least as great as the Eighth

Amendment protections available to a convicted prisoner.")

(quotation omitted); Johnson v. Glick, 481 F.2d 1028, 1032

(2d Cir. 1973) ("[I]t would b e absurd to hold that a pre

- trial

detainee has less constitutional protection against acts of

prison guards than one who has been convicted.").

The Supreme Court has held that the Eighth

Amendment's prohibition against cruel and unusual

punishment r equires the provision of basic medical care.

See Helling, 509 U.S. at 32; Estelle v. Gamble, 429 U.S. 97,

103

- 04 (1976). There is, of course, no general constitutional

right to free health care. In prisons, however, since inmates

are deprived of the ab ility to seek health care on their own,

the state is obligated to provide basic health care. As the

Supreme Court explained in DeShaney v. Winnebago

County Dept. of Social Services, 489 U.S. 189 (1989):

[W]hen the State takes a person into its custody and

holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some

responsibility for his safety and general well being. . . .

The rationale for this is simple enough: when th e State

by the affirmative exercise of its power so restrains an

individual's liberty that it renders him unable to care

for himself, and at the same time fails to provide for his

basic human needs

-- e.g., food, clothing, s helter,

medical care, and reasonable safety

-- it transgresses

the substantive limits on state action set by the Eighth

Amendment and the Due Process Clause.Id. at 199

- 200.

9

In order to establish an Eighth Amendment (and

Fourteenth Amendment) violation a plaintiff must

demonstrate that there was a " `deliberate indifference [on

the part of the State] to serious medical needs of

prisoners.' " Helling, 509 U.S. at 32 (quoting Estelle, 429

U.S. at 104). Such conduct would constitute an

"unnecessary and wanton infliction of pain contrary to

contemporary standards of decency." Helling, 509 U.S. at

32; see also Estelle, 429 U.S. at 104.

Although the Supreme Court has held that a stat e must

provide inmates with basic medical care, the Court has not

tackled the question whether that care must be provided

free of charge. Cf. City of Revere v. Massachusetts Gen.

Hosp., 463 U.S. 239, 245 n.7 (1983) ("Nothing we say here

affects any ri ght a hospital or government entity may have

to recover from a detainee the cost of medical services

provided to him."). The district court here held that there is

nothing unconstitutional about a program that "require[s]

that inmates with adequate res ources pay a small portion

of their medical care." Reynolds, 936 F. Supp. at 1224. We

agree. We reject the plaintiffs' argument that charging

inmates for medical care is per se unconstitutional. If a

prisoner is able to pay for medical care, requiring such

payment is not "deliberate indifference to serious medical

needs." Helling, 509 U.S. at 32. Instead, such a

requirement simply represents an insistence that the

prisoner bear a personal expense that he or she can meet

and would be required to mee t in the outside world. See,

e.g., Shapley v. Nevada Bd. of State Prison Commissioners,

766 F.2d 404, 408 (9th Cir. 1985) (nothing per se

unconstitutional about charging an inmate $3 for every

medical visit; such a charge, by itself, did not constitute

deliberate indifference under Estelle); Mourning v.

Correctional Medical, 300 N.J. Super. 213, 226 (1997);

Words v. Graves, 1997 WL 298458, *3 (D. Kan. May 28,

1997); Gardner v. Wilson, 959 F. Supp. 1224, 1228 (C.D.

Cal. 1997); Hutchinson v. Belt, 95 7 F. Supp. 97, 100 (W. D.

La. 1996); Robinson v. Fauver, 932 F. Supp. 639 (D.N.J.

1996); Bihms v. Klevenhagen, 928 F. Supp. 717, 718 (S.D.

Tex. 1996); Hudgins v. Debruyn, 922 F. Supp. 144 (S.D.

Ind. 1996); Johnson v. Dep't of Pub. Safety & Corr. Serv.,

885 F. Supp. 817, 820 (D. Md. 1995).

10Contrary to the inmates' suggestion, we see nothing in

our prior decision in Monmouth County Corr. Institution

Inmates v. Lanzaro, supra, that casts doubt on the

constit utionality of the program challenged here. In

Lanzaro, our court wrote that prison officials may not

"condition provision of needed medical services on [an]

inmate's ability or willingness to pay." 834 F.2d at 347. The

program at issue does not "condit ion the provision of

needed medical services on an inmate's ability to pay."

Under the program, no inmate is ever denied medical care

for lack of money. Nor does the program condition the

provision of medical care on an inmate's "willingness" to

pay i n the sense that we understand the Lanzaro court to

have used that term. In making the statement in question,

Lanzaro cited Ancata v. Prison Health Services, Inc., 769

F.2d 700, 704 (11th Cir. 1985). There, the prison officials

knew that the inmate (An cata) was seriously ill and needed

to see a specialist, but despite Ancata's complaints, the

prison officials refused to send him to one unless he agreed

to bear the costs of the evaluation. Id. at 702. Ancata could

not fulfill their condition because he was indigent. Id. As it

turned out, Ancata had leukemia, and he died soon after

from respiratory failure. Id. It is thus apparent that the

statement in Lanzaro refers to the withholding of essential

medical treatment from an inmate who refuses to ag ree to

pay because of indigency. Nothing of this sort can happen

under the Berks County Prison program at issue here.

The inmates' argument also finds no support in the

statement in Lanzaro that a case of deliberate indifference

is made out " `if ne cessary medical treatment is delayed for

non

- medical reasons.' " 834 F.2d at 346 (quoting Ancata,

769 F.2d at 704). Under the Berks County Prison program,

the prison officials do not delay the provision of medical

care to any inmate who seeks such care . The program

instead simply assesses a modest fee under some

circumstances. If any delay occurs, it is solely because of

decisions made by the inmates themselves, not because of

any conduct on the part of the prison administration.

The plaintiffs i n this case ask us to stretch the bar on

"cruel and unusual punishment" to a program that simply

attempts to provide inmates with a modest disincentive to

11

abuse sick call. Although the Supreme Court stated in Trop

v. Dulles, 356 U.S. 86, 101 (1958), that the Eighth

Amendment "must draw its meaning from evolving

standards of decency that mark the progress of a maturing

society," plaintiffs have not demonstrated that a prison's

fee

- based program violates suc h standards. On thecontrary, fee

- for

- service programs are very common outside

prisons.

Although it is possible that the fee

- based program at

issue here may cause some prisoners to refrain from

seeking medical treatment as early as they might otherw ise

do so, the deliberate indifference standard of Estelle does

not guarantee prisoners the right to be entirely free from

the cost considerations that figure in the medical

- care

decisions made by most non

- prisoners in our society. The

Supreme Court e xplained in Turner v. Safley, 482 U.S. 78

(1987):

[W]hen a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.

In our view , such a standard is necessary if prison

administrators, and not the courts, are to make the

difficult judgments concerning institutional operations.

Id. at 89 (quotations and citations omitted); see also Lewis,

116 S. Ct. at 2185. Here , the fee

- for

- service plan was

adopted to teach prisoners financial responsibility and to

deter the abuse of sick call. Both of these goals fall well

within the ambit of "legitimate penological interests." See

James v. Quinlan, 866 F.2d 627, 630 (3d Ci r. 1989) ("Here

the Inmate Financial Responsibility Program would appear

to be reasonably related to a legitimate penological interest

in encouraging inmates to rehabilitate themselves by

developing a sense of financial responsibility.").

D. The "As Implemented" Challenge. The inmates next

argue that even if it is not per se unconstitutional to charge

prisoners for medical care, the Berks County program is

unconstitutional as implemented because it creates a

substantial barrier to health care, i. e., one that meets the

deliberate indifference standard of Estelle. The inmates

point to eight separate features of the Berks County

program as problematic:

12

[1.] the burden of a fee system on a poor, n on

- mobile

population, which has been scientifically demonstrated

to have negative and potentially dangerous health

consequences, particularly by causing poor persons to

defer medical care until medical conditions grow

especially serious;

[2.] the imposition of fees higher than thos e assessed

in the statewide Medicaid program for indigent

persons, thereby imposing a substantial barrier tohealth care;

[3.] the failure to pro vide a written Spanis h

- language

version of the fee

- for

- service policy;

[4.] the failure to properly define the te rms "chronic

illness" and "emergency," which causes inmates to

forego medical attention because they cannot

determine what services are covered;

[5.] the failure to properly define the te rms "chronic

illness" and "emergency," which causes inmates to be

arbitrarily deprived of health care because of the lack

of uniform standards;

[6.] the failure to offer free medical treat ment for

emergencies (even life

- threatening ones) when the

injury came about as a result of an inmate violating

prison rules and regulations, which deprives inmates o f

medical care in the most serious of conditions and

causes inmates to forego seeking such attention;

[7.] the exclusion of "contagious diseases" from the

categories of fee

- exempt medical services; and

[8.] the c reation of "negative balances" for inmate

accounts and announcing the intention of seeking to

collect such debts after an inmate is discharged from

prison, which actively discourages inmates from

seeking medical attention in circumstances where the

inmates suffer serious medical conditions.

(Appellants' Br. at 13

- 14).

As with their "per se" challenge, the district court found

the inmates' "as implemented" challenge wanting, and

rejected it. Reynolds, 936 F. Su pp. at 1226. We agree.

13

For convenience, we will consolidate the inmates' eight

complaints into four: (i) that the fee

- for

- service program

charges higher fees than the statewide Medicaid program

(complaint # 2 ); (ii) that the program's terms are not

adequately communicated to the inmates, and that this

causes the inmates to forego care because they do not

understand when a fee will be assessed (complaints ## 3,

4 & 5); (iii) that program causes inmates undu ly to delay in

seeking necessary medical care (complaints ## 1, 6 & 8);

and (iv) that charging fees for the treatment of contagious

diseases causes an unneeded increase in the risk that such

illnesses will spread in the inmate population (complaint# 7).

(i) Higher Fees than Medicaid. The inmates present us

with no more than a general assertion that the fee

- for

service program charges "higher" fees than the statewide

Medicaid program. (Appellants' Br. at 20). They point to no

evidence regardin g the magnitude of the difference. 4 More

fundamentally, we see no basis for concluding that the fees

charged under Medicaid represent the maximum that may

constitutionally be charged against a prisoner's account.

See Reynolds, 936 F. Supp. at 1225. We therefore reject the

inmates' argument.

(ii) Inadequate Communication. The inmates' complaint

# 3 is that the prison authorities have failed "to provide a

written Spanish

- language version of the . . . policy."

(Appellants' Br. at 14). The district court rejected the claim

that this deprived Spanish

- speaking inmates of access to

care. The court explained that, although there was no

written Spanish version of the policy,

Spanish speaking correctional officers and counselors

. . . explain the Handbook, which contains a thorough

_________________________________________________________________

4. In addition, in the fact section of their brief, the inmates state that

"Pennsylvania's Medicaid fee schedule sets fees for doctors' and nurses'

visits at amounts substantially lower than those set by Berks County

Prison. Pa. Code S 1101.63(b)." (Appellants' Br. at 7). Once again,

however, this assertion is too vague and conclusory to support the

inmates' claim. Cf. Commonwealth of Pa. v. HHS, 101 F.3d 939, 945 (3d

Cir. 1996) (arguments mentioned in passing, but not squarely argued,

are deemed waived).

14

description of the medical fee program, to all Spanish

speaking inmates during orientation. Finding of Fact

30. In addition, there is always a Spanish speaking

employee on duty, twenty

- four hours a day and the

medical department employs at least three nurses who

are fluent in Spanish. Finding o f Fact 30.

Reynolds, 936 F. Supp. at 1225. In light of these facts, we

agree with the district court that the lack of a Spanish

translation of the policy does not constitute deliberate

indifference. However, we also join the district court in

urging the prison authorities to provide such a translation.5

In complaints ## 4 and 5, the inmates assert that the

failure of the prison to define the terms "chronic illness"

and "emergency," causes inmates to "forego medicalattention" and to be "arbitra rily deprived of health care."

(Appellants' Br. at 14). (As previously noted, no fee is

assessed when treatment is sought for "chronic illness" or

in case of "emergency"). Although the Inmate Handbook

does not provide a definition of either term, it li sts examples

of chronic illnesses (dressing changes, colostomy changes,

and treatment for conditions such as diabetes,

hypertension, or AIDS related syndrome) and emergencies

(a cut requiring stitches). Reynolds, 936 F. Supp. at 1225.

In addition, the handbook provides examples of non

emergencies (a twisted ankle from activities in the

recreation yard and treatment required as a result of

activity in violation of prison policy). Id.

We agree with the district court that "[t]hese explanations

of the above exempted services do not cause the fee

program to run afoul of the deliberate indifference

standard." Id. at 1226. The terms "chronic illness" and

"emergency" are not obscure. Moreover, the district court

____________________________________ _____________________________

5. As noted, the Berks County Prison has a population that is

approximately 35% Hispanic, and 10% of the total population speaks no

English. Reynolds, 936 F. Supp. at 1219. The district court thus wrote:

[W]e . . . encourage Prison Officials to make available a copy of

the

Inmate Handbook in the Spanish translation. This should mitigate

any lingering difficulties stemming from the language barrier.

Id. at 1225. We endorse this suggestion.

15

found as a fact that "[i]nmates know or should know that

they will never be denied medical care because of an

inability to pay." In other words, the inmates know that

they will never be denied care even if they do not have

enough money and the condition for which treatment is

sought does not fit into one of the fee

- exempt categories.

(iii) Delays in Seeking Treatment. Complaints ## 1, 6,

and 8 boil down to a single assertion: that the fee

- for

service progra m causes inmates to delay unduly in seeking

care. The theoretical argument is that the charges that the

program imposes ($3 for a visit to the nurse and $5 for a

visit to the doctor) lead near

- indigent prisoners to delay and

even forego care for seriou s medical conditions, rather than

using up their scarce funds. We reject this argument for

two reasons.

First, the inmates did not provide evidence supportingthis claim. There is almost no evidence that inmates have

in fact delayed in seeking impor tant treatment because of

the fee

- for

- service program. Indeed, the inmates' expert, Dr.

Robert L. Cohen, acknowledged that he had not seen any

harm resulting to the inmates as a result of the program.

(App. Vol. I, p. 87). Dr. Cohen did testify that he believed,

based on studies of the effects of co

- payment plans on non

prison, indigent and near

- indigent populations, that the

Berks County plan would deter inmates from seeking

treatment when they optimally should. (App. Vol. I, pp. 25,

31 & 36; not ing that there is almost no published data on

the effects of co

- payment plans on prison inmates). But Dr.

Cohen's testimony was far too vague and removed from the

context at hand for the district court to have found that the

Berks County program in fac t has the widespread effect of

deterring inmates from seeking necessary health care.

Second, even if the modest fees assessed under the Berks

County Prison program did deter some prisoners from

seeking medical care at the optimal time, we do not beli eve

that such a deterrent effect amounts to cruel and unusual

punishment or that it violates the due process rights of

pretrial detainees. Putting aside for the moment the

inmates' asserted need for the money in their prison

account to pay for certain litigation expenses, the inmates

have not pointed out evidence showing that they need this

16

money for any vital expenses. Inmates generally use their

prison funds to purchase items at the commissary, but the

most important items that inmates might otherwise

purchase at the commissary are provided free of charge to

indigent inmates. These items include "toilet articles, soap,

shampoo, toothpaste, [a] toothbrush[,] .. . writing paper,

[postage paid] envelope s, pens, [and] pencils." (App. Vol.

IV., p. 1031).

The testimony of several inmates was illustrative. Inmate

Richard Reynolds, testified that he did not seek medical

treatment because his account balance was low, he needed

legal materials, and his h ygienic needs cost him $20 per

week. (App. Vol. II, p. 402). Yet he testified that he

purchased a newspaper at $3.35 per week (id. at 417); he

subscribed to Easy Rider magazine and Hot Rod magazine

for $39.95 and $14.95 respectively (id. at 420); he ma de out

money orders to various payees in the amounts of $100 or

$200, as well as one to his father for a car payment (id. at

439); received $20 every two weeks from his father; and he

made purchases of snacks and candy in the amounts of

$30, $20, and $20 (id. at 441

- 42). Reynolds further testified

that he delayed seeking medical treatment when he had acold and as a result his condition got worse (id. at 403).

Ultimately, Reynolds was seen by the medical department

75 times and was charged a total of $14, a small amount

in comparison to his other expenses. (Id. at 433).

It is apparent that the Berks County Prison Program does

not force inmates to choose between necessary medical care

and other essentials. Rather, it forces them to choose

betw een, on the one hand, the payment of a small fee for

certain types of non

- emergency medical care and, on the

other hand, the use of these funds for non

- essential

expenses. Putting inmates to this choice does not violate

the Eighth or Fourteenth Amendme nts.

(iv) Fees for Treatment of Contagious Diseases. In

complaint # 7, the inmates argue that the exclusion of

contagious diseases from the categories of fee

- exempt

medical services constitutes deliberate indifference to

serious medical needs. Of t heir eight complaints, the

inmates give this one the least attention. Their argument on

this issue in their main brief consists of the single

17

statement: "Expert testimony established the clear danger

of this exclusion [i.e., the contagious disease exclusion]." As

a threshold matter, an argument consisting of no more

than a conclusory assertion such as the one made here

(without even a citation to the record) will be deemed

waived. See Commonwealth of Pa. v . HHS, 101 F.3d 939,

945 (3d Cir. 1996) (arguments mentioned in passing, but

not squarely argued, will be deemed waived); see also

Southwestern Pa. Growth Alliance v. Browner, 121 F.3d

106, 122 (3d Cir. 1997) ("appellate courts generally should

not ad dress legal issues that the parties have not developed

through proper briefing.").

In addition, not only is the inmates' theoretical argument

made inadequately, but the argument suffers from a lack of

supporting evidence. As best we can tell, the the oretical

argument underlying the contagious disease claim has to

do with externalities. The argument is that if inmates with

contagious diseases delay seeking treatment, the result is

that other inmates will be exposed to the risk of contagion

for a g reater amount of time than they would be otherwise,

i.e., there is an external effect in addition to the internal

effect. Cf. Richard J. Zeckhauser, Coverage for Catastrophic

Illness, 21 Pub. Pol'y 149, 164, 159

- 70 (1973) (describing

the positive exter nalities of health care attributable to a

reduction of contagion).

Because of the modest nature of the fees and the absenceof evidence that inmates need the funds in their prison

accounts for essential expenses, we do not think that an

inmate could assert a valid Eighth or Fourteenth

Amendment claim on the ground that the Berks County

Prison program harmed him by causing him to delay

seeking medical care for a contagious disease. Under the

circumstances, any delay and resulting harm could be

at tributable to his own unjustified decision.

On the other hand, in such a case, the effect of a single

inmate's choosing to delay treatment is suffered not only by

that inmate, but also by everyone else

-- they all suffer an

increased risk of contract ing the contagious disease. It is

conceivable that an inmate might be able to assert a valid

Eighth or Fourteenth Amendment claim if he could show

that a prison fee program caused other inmates to delay

18

seeki ng treatment to such an extent as to cause a serious

risk of an epidemic, that prison officials knew of this

serious risk, but that they exhibited deliberate indifference

to it and thus failed to take proper precautions. Cf. Hutto v.

Finney, 437 U.S. 6 78, 682 (1978) (noting that among the

prison conditions for which the Eighth Amendment

required a remedy was placement of inmates in punitive

isolation under conditions where infectious diseases could

spread easily); Gates v. Collier, 501 F.2d 1291 (5t h Cir.

1974) (inmates were entitled to relief under the Eighth

Amendment where they proved threats to personal safety

from exposed electrical wiring, deficient firefighting

measures and the mingling of inmates with serious

contagious diseases). In thi s case, however, the inmates'

evidence did not begin to show what would be required to

make out such a claim.6

III.

Due Process Challenges

In addition to the deliberate indifference due process

__________________________________________________ _______________

6. In his testimony, Dr. Cohen merely made the general statement that

infectious diseases develop commonly in prisons and spread quickly

because of high population density. (App. Vol. I, p. 46). Although Dr.

Cohen's general statement is not enough to support the inmates' Eighth

Amendment claim, we do share his concern about the prison's blanket

policy of charging fees for treatment for all contagious diseases. With

diseases such as tuberculosis, the impact of delays in inmates' seek ing

treatment may cause serious health hazards. Cf. Commerce Justice State

Appropriations: Hearings on National Institute of Justice Study on theHealth Needs of Soon

- to

- be Released Inmates Before the House

Subcommittee on Appropriations (statement of Edward A. Harrison,

President, National Commission on Correctional Health Care) 1997 WL

10571095 ("tuberculosis . . . is 500% more common in urban jails than

in the general population . . .; Hepatitis B virus, HIV and AIDS are all

widespread in the cor rectional environment"); Kim Marie Thorburn,

Health Care in Correctional Facilities, 163 Western J. Med. 50 (1995),

1995 WL 12613424 at *11

- 12 ("As the New York and California prison

system outbreaks show, overcrowded institutions, often with a high

pr oportion of immunosuppressed people, are fertile ground for the

spread of tuberculosis.").

19

claims made with respect to the pre

- trial detainees,

plaintiffs contend that the challenged policy violates the

Fourt eenth Amendment's Due Process Clause by "taking

inmate funds from inmate accounts without due process of

law." (Appellants' Br. at 26). The inmates argue that the

district court erred in rejecting both their procedural and

substantive due process chall enges.

A. Procedural Due Process. Inmates have a property

interest in funds held in prison accounts. E.g. , Mahers v.

Halford, 76 F.3d 951, 954 (8th Cir. 1996), cert. denied, 117

S. Ct. 696 (1997); Campbell v. Miller, 787 F.2d 217, 222

(7th Cir. 19 86); Quick v. Jones, 754 F.2d 1521, 1523 (9th

Cir. 1985). Thus, inmates are entitled to due process with

respect to any deprivation of this money. Mahers, 76 F.3d

at 954. The inmates argue that, in deducting fees for

medical services from their inmate accounts, the Berks

County Prison program provides: (i) inadequate notice; (ii)

inadequate authorization procedures; and (iii) inadequate

post

- deprivation process for challenging erroneous fee

assessments. (Appellants' Br. at 28).

The procedural pro tections required by the Due Process

Clause are determined with reference to the particular

rights and interests at stake in a case. Washington v.

Harper, 494 U.S. 210, 229 (1990). The factors to be

considered are the private interests at stake, the

g overnmental interests, and the value of procedural

requirements in that particular context. Id. (citing Mathews

v. Eldridge, 424 U.S. 319, 335 (1976)).

(i) Notice. The inmates argue that Berks County

program provides deficient notice to the Hispanic

population of the prison because there is no written

Spanish translation of the fee

- for

- service program.

(Appellants' Br. at 29). This argument is essentially the

same as one of the arguments made by the inmates as part

of their submission that the p rogram "as implemented"results in constitutionally impermissible conditions of

confinement. See supra at 12

- 13. Once again, we find the

argument unpersuasive.

The amount of notice due depends on the context. Gilbert

v. Homar, 117 S. Ct. 1807, 1812 (1997) ("Due Process is

20

flexible and calls for such procedural protections as the

particular situation demands"). As noted, in assessing

claims of due process violations, we look not only at the

private inter ests at stake, but also at those of the

government entity. Cafeteria and Restaurant Workers Union

v. McElroy, 367 U.S. 886, 895 (1961).

The inmates claim inadequate notice because 10% of the

inmate population can read only Spanish and there is no

Sp anish translation of the program description. As

previously noted, however, the district court found that

Spanish

- speaking officers explain the policy to all the

Spanish

- speaking inmates and that there is always a

Spanish

- speaking officer on duty. Reyn olds, 936 F. Supp.

at 1222. In addition, the court found that the prison

medical department employed at least three nurses who

were fluent in Spanish. Id.

We agree with the district court that a Spanish

translation of the Inmate Handbook would be us eful.

However, we discern no basis for holding that the failure to

provide Spanish

- speaking inmates with a written

explanation of a prison policy, when the policy is orally

explained by Spanish

- speaking correctional officers, creates

a constitutional violation. The constitutional issue is

whether the inmates are provided adequate notice so as to

be able to challenge any improper deprivation, not whether

they are provided written notice. Cf. Lewis, 116 S. Ct. at

2182 (courts are to defer to prison o fficials to determine

how best to ensure that inmates with language programs

have adequate information and assistance).

(ii) Authorization. With respect to authorization

procedures, the inmates explain that "[a]uthorization to

withdraw money from a n inmate account occurs when an

inmate is asked to sign a Berks County Medical Service

Form when the assessment is made." (Appellants' Br. at 29

- 30). The inmates' complaint, made in cursory fashion, is

that the medical fee "assessment occurs regardles s of

whether the inmate signs the form." (Id.)

We have already held that charging inmates for medical

fees is not unconstitutional per se. See supra at 10.Permitting a prison to charge fees to further legitimate

21

penological interests would be meaningless unless the

prison implemented procedures to make the system work

effectively. The inmates' argument appears to be that fees

should not be deducted from their accounts without their

own express authoriz ation. But delaying treatment while

prison officials haggled with an inmate about signing a form

authorizing the assessment of a fee could lead to

frustrating and hazardous Eighth Amendment problems.

See Ancata, 769 F.2d at 704. Cf. Taylor v. Bowers, 9 66

F.2d 417, 423 (8th Cir. 1992) (doctor's delay of surgical

intervention in order to prompt inmate to confess he

swallowed a drug

- filled balloon violated inmate's right to

treatment of serious medical condition). And if there had to

be a threshold he aring on the validity of a fee, that delay

might exacerbate an inmate's already serious medical

condition. Cf. Washington, 494 U.S. at 225 (holding a

prison regulation with respect to the involuntary

administration of anti

- psychotic drugs without a pri or

hearing valid where the regulation was an accommodation

between the inmate's liberty interests and the State's

interest in providing appropriate medical treatment to

reduce the danger that the inmate presented to both

himself and others). Further, delays in treating a

contagious disease could expose other inmates and prison

officers to increased health risks. Hence, in order to have a

fee system work practicably and at the same time provide

medical services in a manner that does not constitute

deliberate indifference to serious medical needs, a prison

must have the ability to deduct fees from an inmate's

account even when the inmate refuses to grant

authorization. See Campbell, 787 F.2d at 224 (the

practicality of needing to collect funds in the prison context

is an important factor in determining whether the relevant

procedures satisfy due process requirements). Put

differently, our point is that if inmates know that they can

refuse to pay, still receive treatment, and in the meantime

s pend their funds on other things, then it is likely that at

least some prisoners will simply refuse to authorize

deductions. Such refusals would undermine the ability of

the prison to administer its fee

- for

- service program

effectively.

In addition, we note that the deduction here is afixed,

non

- punitive assessment and that these features limit the

22danger of the prison authorities' abusing the power to make

unauthorized deductions. See Quick, 754 F.2d at 1523

(suggesting that when the deduction of money is non

punitive, less process is due). Moreover, this is not a

situation in which the inmates are deprived of the benefits

of their property and receive nothing in return; rather in

exchange for the f ees, the inmates receive the benefit of

health care, the value of which undoubtedly exceeds the

modest fee assessed. See Mahers, 76 F.3d at 954

- 55 (need

for procedural due process safeguards is somewhat reduced

where the deduction of money from inmates ' accounts goes

substantially to benefit the inmates' interests).

(iii) Hearing. The inmates next argue that the

"procedural aspects of the fee program fail to provide a

meaningful way to challenge an alleged improper

assessment." (Appellants' Br. at 31). As a basis for their

claim, the inmates point to the Inmate Handbook. The

Handbook states that an inmate who contests a fee

assessment can file an Inmate Communication Form that

will be reviewed by the Medical Department. (Appellants'

Br. at 3 0). The crux of the inmates' claim concerns the

filing of a grievance after initially contesting a fee. The

inmates tell us that "an independent review beyond the

Medical Department of a challenged assessment is

essential." The inmates argue that this essential second

level of independent review is missing. Specifically, the

inmates point out that although the Inmate Handbook

allows for a grievance to be filed when an Inmate is not

satisfied with the results of his initial challenge, the

Handbook s tates that "[a] grievance may not be filed simply

because [one] disagree[s] with a staff member's decision."

(Appellants' Br. at 31). The argument appears to be that

this limited right to appeal to an independent body is

constitutionally inadequate.

Even assuming that it is necessary for the inmates to

have a right to appeal to an entity independent of that

which issued the initial denial, i.e., the Medical

Department, see McDaniels v. Flick, 59 F.3d 446, 459 (3d

Cir. 1995) ("due process requires an impartial decision

maker before final deprivation of a property interest"), cert.

denied, 116 S. Ct. 1017 (1996), the inmates' claim faces a

23

barrier it cannot surmount, viz., the district court's finding

that the rule that "a grievance may not be filed simply

because one disagrees with a staff member's decision" does

not apply to grievances about improper assessments under

the fee

- for

- service program. Reynolds, 936 F. Supp. at1228. The court found tha t such grievances may be filed

because they fall under an exception allowed for "report[s]

[of] alleged violations of jail policy." In view of this factual

finding, the inmates' challenge can succeed only if they can

show that the district court commit ted clear error.

"A finding of fact is clearly erroneous only if the court has

the definite and firm conviction that a mistake has been

committed." Coalition to Save Our Children v. Bd. of

Education, 90 F.3d 752, 759 (3d Cir. 1996) (citation and

int ernal quotation omitted). Deference to the factfinder is

especially appropriate with respect to credibility

determinations, since it is the fact finder, and not the court

of appeals, that has the opportunity to hear and observe

the witnesses first hand . In re Nautilus Motor Tanker Co., 85

F.3d 105, 116 (3d Cir. 1996) (district court's credibility

assessments are "deserving of the highest degree of

appellate deference"). Here, the testimony of the warden of

the Berks County Prison directly supports t he district

court's finding. The inmates, however, point to what they

say is contradictory testimony from the deputy warden.

(Appellants' Br. at 31). The inmates' complaint boils down

to a challenge to the district court's credibility

determination. W e do not see an adequate basis to reverse

that determination.

In sum, we hold that the inmates have not demonstrated

error in the district court's rejection of their procedural due

process challenges.7

_______________________________________________ __________________

7. The inmates also point to Pennsylvania statutes regulating the "taking

by any agency of individual property rights." (Appellants' Br. at 32). The

inmates argue that Pennsylvania's heightened procedural protections are

not only e ntitled to deference, but also create a liberty interest that is

entitled to protection. The district court's failure to acknowledge the

Pennsylvania statutes and court decisions, the inmates say, was error.

We disagree for two reasons.

First, even i f Pennsylvania's heightened procedural protections were

entitled to some deference, the deference is by no means conclusive

--

24

B. Substantive Due Process. The inmates claim that the

Berks County Prison progra m violates substantive due

process because it is too vague. Relying on Horn v. Burns

and Roe, 536 F.2d 251, 254 (8th Cir. 1976), the inmates

observe that "a noncriminal statute is unconstitutionally

vague under the due process clause of the Fifth or

F ourteenth amendments when its language does not convey

sufficiently definite warning as to the proscribed conductwhen measured by common understanding or practice."

See also, e.g., Trojan Technologies, Inc. v. Com. of Pa., 916

F.2d 903, 914 (3d Cir. 1 990). The inmates contend that the

program at issue here fails to meet this standard.

Plaintiffs' assertions, which mirror some of the

arguments made with respect to their unconstitutional

conditions

- of

- confinement claim, are (a) that exceptions to

the fee assessment policy, such as for chronic illnesses and

emergencies, are not specifically defined and (b) that the

Inmate Handbook's statement that "[a] grievance may not

be filed simply because you disagree with a staff member's

decision" gives inmates the impression that they are not

entitled to seek an independent review of a challenged

medical fee assessment. We agree with the inmates that the

current description of the fee

- for

- service policy is not a

model of clarity. However, in order to show that the policy

violates due process it is not enough for the inmates to

demonstrate that more specific language could have been

used. Instead, the policy must be so vague as to amount to

the absence of any real policy or statute. Horn, 536 F.2d at

254.

We agree with the district court that the fee

- for

- service

program at Berks County does not violate this standard.

_________________________________________________________________

as the inmates appear to suggest it should be

-- in determi ning the

degree of procedural protection required under federal constitutional

standards. Indeed, the Eighth Circuit case that the inmates cite for the

proposition that deference is due was one where the majority upheld the

prison policy despite the fa ct that it was contrary to both state

legislative

policy and case law. See Mahers, 76 F.3d at 957 (Heaney, J., dissenting).

Second, with respect to the alleged creation of a liberty interest, a

state's

choice to provide heightened procedural protections does not create an

independent liberty interest. See Griffin v. Vaughn, 112 F.3d 703, 709

n.3 (3d Cir. 1997).

25

First, the terms "chronic illness" and "emergency" are

relatively clear in themselves, and their meaning is

illustrated with examples. Second, with respect to the right

to file grievances, there was testimony at trial that inmates

are informed twice of their right to grieve a fee assessment,

once at orientation and once again at the time when a fe e

is assessed. (App. Vol. I, pp. 155

- 60; Vol. IV, pp. 1084

- 86).

In addition, the warden testified that inmatesfile grievances

pertaining to medical fees "all the time." (App. Vol. I, p.

157). Hence, the fee

- for

- service program, is notunconstitutional ly vague.

The inmates tell us that they "introduced a wealth of

information that shows that serious mistakes go

uncorrected [in the assessment of fees]." (Appellants' Br. at

37). The "wealth of information," however, apparently

consists of testimony from four inmates that errors were

made in assessing fees against them. We agree with the

district court that this evidence is of negligible value in view

of the scope of the entire program.

IV.

FIRST AMENDMENT

The inmates' final claim is that the district court erred in

rejecting their claim that the program abridged their First

Amendment right of meaningful access to the courts. See

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741

(1983). The inmates argue that charging them fe es for

medical services puts them to the impermissible choice of

paying for legal expenses or paying for needed health care.

See Gluth v. Kanga, 951 F.2d 1504, 1508 (9th Cir. 1991)

(holding that putting inmates in the situation of having to

choose bet ween purchasing hygienic supplies or purchasing

essential legal supplies was "unacceptable" under the

Constitution's guarantee of meaningful access to the

courts). In support of this argument, the inmates point to

the fact that they are charged for pho tocopying and for

mailing materials to the court.8

_________________________________________________________________

8. The charge for photocopying appears to apply whether an inmate is

indigent or not. With respect to mailing legal materials, howeve r,

indigent inmates are entitled to have all their legal material mailed by

the prison, except that a negative balance is applied to their accounts.

Reynolds, 936 F. Supp. at 1230.

26

In Section II, we analyzed the inmates' claim that

charging them fees for medical services constituted

deliberate indifference to their serious medical needs

because it deterred them from seeking health care as

promptly as they would in the absence of a fee. See supra

at 14

- 17. The threshold issue in analyzing that claim was

whether the claim was barred under Lewis v. Casey, 116 S.

Ct. at 2179, because of a failure to show actual or

imminent harm, i.e., the actual injury that would have

provided standing to sue. We noted tha t Lewis arguably did

not control because (a) Lewis was a First Amendment right

of

- access to

- the

- courts case and (b) a prior Supreme Courtcase, Helling v. McKinney, 509 U.S. 25, 33 (1993), squarely

held, in the context of an Eighth Amendment deliberat e

indifference claim, that inmates could bring a claim based

on an assertion that existing conditions of confinement

created a serious health hazard and put them at an

increased risk in the near future. We found it unnecessary

to decide this question because the inmates' claims clearly

failed on the merits. Here, however, the inmates' claim is a

First Amendment access

- to

- the

- courts claim that falls

squarely within the ambit of Lewis.

Lewis involved a class action brought by adult prison

inmates in Arizona, alleging that the prisons were depriving

the inmates of their rights of access to the courts and

counsel in violation of the First, Sixth, and Fourteenth

Amendments. 116 S. Ct. at 2177. In particular, the inmates

alleged inadequacies in the ir access to law libraries and

legal assistance. Id. at 2179. Among the shortcomings in

the facilities identified by the district court were

inadequacies in the training of library staff, the updating of

legal materials, and the availability of photoco pying

services. Id. at 2178. In rejecting the inmates' claims and

reversing the district court's grant of an injunction in favor

of the inmates, the Supreme Court explained that the

Constitution gave the inmates no free

- standing rights to a

law librar y or legal assistance. Id. at 2179

- 80. The relevant

right was the right of access to the courts. Id. at 2180.

Legal assistance, photocopying services, and law libraries

were merely means to achieving access to the courts. Id.

Because there was no free

- standing right to a law library or

photocopying services, an inmate could not demonstrate

27

the necessary actual or imminent injury simply by

establishing that those services were inadequate. Id.

Instead, to be able to bring a viable claim, the plaintiff

inmates had to show direct injury to their access to the

courts. Id. The Court explained that an inmate could show,

for example, that "a complaint he prepared was dismissed

for failure to satisfy some techn ical requirement which,

because of deficiencies in the prison's legal assistance

facilities, he could not have known." Id. "Or [he could show]

that he had suffered arguably actionable harm that he

wished to bring before the courts, but was so stymied b y

the inadequacies of the law library that he was unable even

to file a complaint." Id.

The inmates' claim here suffers from the precise

deficiencies identified by Lewis. The inmates argue that

their access to the courts has been stymied as a result of

having to pay for medical services and thereby having lessmoney to pay for legal mail and photocopying. However,

there is no First Amendment right to subsidized mail or

photocopying. Under Lewis, the inmates must point to

evidence of actual or im minent inference with access to the

courts

-- for example, evidence that an inmate was not able

to file his complaint in time because he could not afford the

cost of postage or that an inmate was not able to file legal

papers because he could not photo copy certain documents.

Since the inmates have utterly failed to point to any

evidence of such direct injury to their right of access to

their courts, their First Amendment challenge fails.

V.

For these reasons, the judgment of the district court is

AFFIRMED.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28