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Court of Appeal, Second District, Division 4, California.

Edward BROWN et al., Plaintiffs and Respondents, v. Peter J. PITCHESS et al., Defendants and Appellants.

Civ. 41789.

Decided: February 25, 1974

John H Larson, County Counsel, Michael H. Dougherty, Deputy County Counsel, Los Angeles, for defendant and appellants. Terry L. Smerling, San Pedro, and Richard A. Weisz, Long Beach, for plaintiffs and respondents.

Plaintiffs Edward Brown, Charles Davis and Elmer Davis, on behalf of themselves and ‘all County Jail prisoners who are, or will be, defending themselves . . . in criminal actions' sought declaratory relief and to enjoin certain jail administration practices of the defendant, Sheriff Peter Pitchess and Sheriff's Captain Max Krukow, charged with the responsibility of the administration of the county jail, the County of Los Angeles, and (by stipulation) the Los Angeles County law library. The trial court made two injunctive orders and denied the plaintiffs relief in all order respects. The defendants appeal the decision.

From the pleadings and declarations made on behalf of the parties, it appears that the three named plaintiffs were, at the time of the filing of the complaint, prisoners held at the county jail located at 441 Bauchet Street in Los Angeles, awaiting trial on criminal charges. Each named plaintiff filed a declaration alleging indigency; each was representing himself with respect to the pending criminal charges. While the county jail houses both unsentenced prisoners awaiting trial and those who have been convicted and are serving sentences, those prisoners, including the plaintiffs, who are representing themselves (‘pro pers') are separately housed from all other inmates in module 2500b, located near the jail's law library.

Plaintiffs complained of a wide range of administrative practices at the jail. They claimed that they are treated differently than members of the general prison population solely because of their ‘pro per’ status, that they are housed separately, required to eat and bathe separately and are actively discouraged by jail personnel from associating with other prisoners. ‘Pro pers' are not allowed to leave module 2500b without a deputy sheriff as escort; they are searched frequently and are required to wait long periods of time in holding areas for these searches. The prisoners further charged that the law library at the jail is inadequate to assist them in preparing their defense; that they are unable to freely borrow necessary materials from the county law library, and that the hours available to them for use of the jail library are insufficient. Another area of concern on the part of the prisoners revolved around the regulations at the jail concerning the service of subpoenas; subpoenas are served through the sheriff's department and the prisoners claimed that in practice they are denied the power to subpoena witnesses necessary for their pending criminal trials.

Plaintiffs brought to the trial court's attention ‘the Los Angeles Superior Court Policy Memorandum Re Inmate Pro Per Privileges,’ a document setting forth regulations of that status in the jail; the memorandum clearly prohibits ‘pro per’ prisoners from assisting other prisoners in legal matters. It characterizes the law library as ‘adequate’ and specifically limits its use to certain hours every day.

Plaintiffs charged that the practices of which they complain violate constitutional guarantees of free speech and association, access to the courts, and constitute discrimination violating the equal protection clause of the Constitution. They sought injunctive relief on the ground that irreparable injury was being caused by the enumerated practices which could not be compensated by money damages, and requested that such practices be terminated.

The defendant did not, nor do they now, dispute that there is systematic isolation of the ‘pro pers' in the jail; they contend that the administrative regulations and practices in force are necessary to insure jail security. They claim that the ‘pro per’ prisoners are more dangerous than other inmates and have a propensity toward escape from confinement; searches of the ‘pro per’ prisoners, and of the jail library to which they have access, have often resulted in the discovery of weapons. The practices of which plaintiffs complain are characterized as reasonable, necessary, and not constituting a hindrance to the plaintiffs' ability to represent themselves in court. As indicated previously, the trial court granted certain limited injunctive relief, and this appeal followed.

In their reply brief, defendants have raised for the first time the issue of the trial court's jurisdiction over the subject of this dispute, i. e., the civil rights of prisoners in a local jail. It appears that we must consider and resolve this question, as it is well settled that a jurisdictional issue may be raised for the first time at the appellate level. (Consolidated Theatres, Inc. v. Theatrical State Employees Union, 69 Cal.2d 713, 721, 73 Cal.Rptr. 213, 447 P.2d 325; Costa v. Banta, 98 Cal.App.2d 181, 182, 219 P.2d 478.)

Defendants contend that plaintiffs' action brought pursuant to 42 U.S.C. § 19831 seeks an exclusive federal remedy and thus plaintiffs could bring such action only in the federal court. We find no merit in this contention.

A state court determines whether it has jurisdiction to enforce rights created by a federal statute by interpreting the intention of the federal Congress to provide for exclusive federal jurisdiction, as opposed to concurrent state and federal jurisdiction. (Gerry of California v. Superior Court, 32 Cal.2d 119, 121, 194 P.2d 689.) In the area of civil rights litigation, the issue has generally been considered in the context of a claim that state, rather than federal remedies should have been sought because they were adequate to deal with the particular problem or had not been exhausted prior to bringing a federal suit. This was a central issue in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492, and gave rise to a discussion therein of the objectives envisioned by Congress in enacting section 1983. One such objective mentioned was the supplementary nature of federal intervention in local civil rights matters vis-a-vis state action. As far as we can discover, section 1983 has never been characterized by the federal courts as a statute creating rights that could be enforced only in federal courts. On the contrary, federal district courts have referred with approval to the concept of concurrent federal and state jurisdiction in this area. (See Kostohyrz v. Hursh, 329 F.Supp. 319 (D.C. Minn.1971) and United States ex rel. Hill v. Johnston, 321 F.Supp. 818 (D.C.N.Y. 1971). In Hancock v. Avery, 301 F.Supp. 786, 790 (D.C.Tenn.1969) the court observed: ‘As to the matter of exhaustion of state remedies, it is presently the rule that were an action is . . . brought under provisions of the Civil Rights Act, the exhaustion of state remedies is not a condition precedent to federal jurisdiction. State and federal courts have concurrent jurisdiction in such cases.’

We conclude, therefore, that the trial court did have the requisite jurisdiction to consider and decide the issues raised below.

Defendants next contend that the trial court was in error when it issued an injunction requiring that the defendants employ or assign one full time attorney, a member of the California State Bar, to assist those sentenced prisoners who are held in Los Angeles county jails and who wish help in the preparation of petitions challenging the legality of their confinement.

In Johnson. v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) the United States Supreme Court held that prisoners have a constitutionally protected right, after conviction, to gain access to the courts for post-conviction relief, and that unless a state provides a reasonable alternative to inmate assistance it may not validly enforce a jail regulation prohibiting any form of legal assistance from one inmate to another. The decision has been recognized in California in In re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 504, 470 P.2d 640. The United States Supreme Court's concern was not with the rights of ‘jail-house lawyers' to give advice, but with the rights of unsophisticated prisoners to receive advise, particularly those who because of indigency, illiteracy and other handicaps were unable to secure adequate legal assistance in preparing petitions for post-conviction relief. The decision was made in light of the fact that many states have no provision in their jails for post-conviction legal assistance and the advice of ‘jail-house lawyers' is the only source of help available to jail inmates.

Since Johnson, it has been held that a regulation prohibiting the giving of mutual inmate assistance may be upheld if the alternative provided by the state for meeting this prison need is determined to be reasonable. (Beard v. Alabama Board of Corrections, 413 F.2d 455 (5th Circuit, 1969); Novak v. Beto, 320 F.Supp. 1206 (D.C.Texas, 1970); Cross v. Powers, 328 F.Supp. 899 (W.D.Wis.1971).)

In the instant case, it was undisputed that the regulations affecting ‘pro pers' were enforced by the defendants and resulted in depriving the general prison population of needed legal assistance. From the record before us, it is apparent that no provision has been made in the Los Angeles county jail, prior to the present, which would adequately meet the needs of inmates for post-conviction assistance. The trial court gave the defendants additional time to submit to the court a reasonable alternative to the present situation. One suggestion was that inmates desiring legal assistance be allowed to consult with the inmates of module 2500b at designated times and places; the defendants rejected this suggestion on security grounds, but offered nothing by way of a reasonable alternative. The order of the trial court followed.

Defendants point out that neither Johnson nor Harrell held that inmates in prison were entitled to the services of any particular ‘jail-house lawyer’, and argue that, for that reason, the trial court incorrectly predicated its injunctive order on the absence, in the Los Angeles county jail, of regulations permitting inmate consultation with the ‘pro pers' located in module 2500b.

In our view the trial court correctly exercised its broad discretion (2 Witkin, California Procedure, § 80, p. 1518) in recognizing that the case was strong for some type of relief and by tailoring the relief given to meet the clear constitutional mandate of Johnson and Harrell. In issuing the order, the court necessarily concluded that it must balance the equities between the constitutional requirements and jail security. The order made was clearly preferable to one enhancing the power and prestige of ‘jail-house lawyers', the dangers of which were discussed in the dissenting opinion of Justice White in Johnson v. Avery, 393 U.S. at 501, 502, 89 S.Ct. 747, 21 L.Ed.2d 718. There are also considerations of time consumption and efficiency; a properly trained professional attorney will be able to discourage prisoner petitions that are without merit and assist in preparing properly drawn petitions that do have merit.

The relief given did not directly benefit the named plaintiffs in the action, i. e., the ‘pro per’ prisoners, but rather the general ‘pro per’ prison population. Defendants contend that this circumstance necessitates the decision that the plaintiffs had no standing to litigate the constitutional rights of the other prisoners. Recent case law, however, reflects the opposite view. In both Johnson and Harrell the courts considered matters brought to their attention by the ‘jail-house lawyers' but rendered decisions that were of benefit to members of the general prison population. It was pointed out, particularly in Harrell, that it should not be necessary for a ‘pro per’ or ‘jail-house lawyer’ to violate an existing prohibitory regulation to test the issue in court. It is sufficient if such regulation or practice prohibiting assistance exists. ‘In order to protect the right of the donee to legal help, the donor threatened with punishment for providing legal assistance must be permitted to assert the donee's rights.’ (Nickl v. Schmidt, 351 F.Supp. 385, 389 (W.D.Wis.1972).)

The other injunctive order made concerned the materials available to ‘pro per‘ inmates in the prison library. Plaintiff's submitted detailed information to the trial court on the library's present content. The trial court ordered the defendants to supply the library with the Los Angeles Daily Journal and U.S. Law Week. We find no error. It has been held that, on a proper showing (sufficient information concerning content), the adequacy of a prison library is a factor in quaranteeing access to the courts, a constitutionally protected right. (In re Harrell, cited supra; Gilmore v. Lynch, 319 F.Supp. 105 (D.C. N.Cal.1970); affirmed sub. nom. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.E.2d 142 (1971)). A specific complaint about the adequacy of the present library was that it lacked up-to-date materials which would bring to the prisoners' attention new decisions in the criminal law field, decisions that might be crucial to their defense. The two ordered publications contain summaries of the most recent case law developments in the field. We cannot say that the order providing the two papers in question exceeded the discretion vested in the superior court.

Defendants finally contend that the trial court erroneously waived the preliminary injunction bond for the indigent plaintiffs. They raise no factual question regarding the plaintiffs' status as indigents, and the record discloses that declarations of indigent status were filed with the court for each named plaintiff.

It is true that Code of Civil Procedure section 529 mandates the bond requirement in regard to the issuance of injunctions. The section provides: ‘On granting an injunction, the court or judge must require, . . . a written undertaking on the part of the applicant, with sufficient sureties, to the effect that he will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled thereto. . . .’ However, mandatory statutory language requiring bonds has not been interpreted as a limitation on the court's inherent power to grant relief in forma pauperis in a proper case. (County of Sutter v. Superior Court, 244 Cal.App.2d 770, 53 Cal.Rptr. 424; Roberts v. Superior Court, 264 Cal.App.2d 235, 70 Cal.Rptr. 226; Bank of America v. Superior Court, 255 Cal.App.2d 575, 63 Cal.Rptr. 366; see also, Ferguson v. Keays, 4 Cal.3d 649, 94 Cal.Rptr. 398, 484 P.2d 70.) As it appears that waiver is permissible upon a proper showing of indigency, we find it unnecessary to reach the constitutional issues raised by the plaintiffs with respect to such bonds.

The judgment is affirmed.


1.  The section provides: ‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.’

JEFFERSON, Acting Presiding Justice.

KINGSLEY and DUNN, JJ., concur.

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