Apolinar Navarette, Jr., AKA Paul Medel Navarette v. Jiro J. Enomoto
536 F.2d 277
9th Cir.
1976
Check Treatment

*2 (N.D.Cal.1973), involving a case HUFSTEDLER, Before KOELSCH and censorship prisoners’ pursuant mail HILL,** Judges, Judge. District Circuit prison regulations, three-judge dis- enjoined trict court enforcement of those KOELSCH, Judge: Circuit regulations, holding “that prisoners’ right *3 Navarette, a Appellant California state correspond is a right pro- fundamental brought civil prisoner, this action Amendment, the First by tected and that 42 against state officials under right restrictions on that must be at least 1983,1985 1341, and 28 U.S.C. U.S.C. §§ §§ reasonably necessarily related to a valid 1343; complaint out nine purported his set . institutional interest . .” 354 granted The district court claims. summa- F.Supp. at 1097. Reviewing that decision first, ry judgment appellees as to the Martinez, 396, in Procunier v. 416 U.S. 94 second, and third and dismissed the fourth 1800, 40 L.Ed.2d 224 S.Ct. the Su- through ninth for failure to state a federal preme Court affirmed on the narrower ba- part claim. We affirm in reverse unjustified governmental sis that interfer- part. with the intended ence communications vio- court erred in grant The district its rights, lated the first amendment not of the summary judgment. As to claims one and prisoners, but of the non-prisoner corre- two, allegations in Navarette’s substance spondents who were party to those intended appellees deliberately were that refused to communications; specifically Court re- certain of his letters and to cer- mail send question served the to what extent “an by registered others mail in tain violation of right individual’s to free speech survives regu- the federal constitution and the mail 408, incarceration . .” 416 then in effect. lations 94 at 1809. S.Ct. standard, controlling first by Supreme Conley Court in enunciated Nevertheless, this court has indi 41, 45-46, 99, Gibson, v. 355 U.S. in at cated least two recent decisions that a 102, 2 L.Ed.2d 80 is that an action prisoner does not shed his first amendment may be dismissed for failure to state a right expression to free upon entering the only appears beyond if “it doubt that claim prison gates. McKinney DeBord, v. 507 prove can no set of facts in 501, (9th 1974) 505 Cir. (opin. Choy, support of his claim which would entitle J.); Newspaper Guild, Seattle-Tacoma Although to relief.” the amended com him Parker, 1062, Local # 82 v. 480 F.2d 1065 attorney Navarette’s is plaint drafted (9th 1973). Relying Cir. language is entitled badly applica worded and these decisions and our agreement essential stringent” tion of the “less standards re with the rationale of the three-judge court pro (Haines pleadings served for se v. Ker Martinez, we think allega Navarette’s ner, 519, 520, 594, 92 404 U.S. S.Ct. 30 tions, although inartfully worded, permit (1972)) we nevertheless view L.Ed.2d 652 entitling him to proof relief.1 allegations as sufficient to state claim However, right of a first the district grant for the violation amendment court’s expression. summary judgment to free would have been appro- Hill, Irving **The United States Dis- (2d Honorable F.2d 178 Cir. Judge for the trict Central District of Califor- 719, (1972); 30 nia, sitting designation. equal protection laws, right see Schneckloth, (9th Smith v. 414 F.2d 681 express opinion no 1. We as to whether Navar 1969); rights, or of his fourth amendment may allegations ette’s of mail interference Savage, United States see 482 F.2d deprivation a claim for of his to counsel 1973). McDonnell, Cf. Wolff v. 1373 Hull, courts, parte Ex or of access to the see 539, 575-577, 546, 548-549, S.Ct. S.Ct. L.Ed. Skinner, Christman McGinnis, (2d 1972); Sostre v. genuine prevailing priate if there were no issue view in this country’ in com- or, viewing fact the evidence and material mon-law actions parallel based on the tort may [citing the inferences which drawn there- Ray, Pierson v. light most favorable to the (1967)].” And in clearly Strickland, en- party, the movant were Wood supra,

adverse Supreme prevail as a matter of law. Stansi- titled Court concluded that should be con- Corporation, 487 Chrysler Motors strued to accord fer school board members a qualified good faith immunity from dam- ages under that section where “common- regard, appellees argue In that that sum- and “strong law tradition” public-policy proper ground on the mary judgment reasons” so dictate. U.S. at good faith belief of a that a reasonable remand, at 1000. On the district court state official that his or her conduct is determine should whether the defense of lawful, not, it even where in fact consti- good faith is available in this action in *4 complete defense to a 1983 claim tutes a § respect of causes one and two. damages. True, public the existence of a offi The dismissal of claims four and “good immunity faith” from 1983 cer’s five was error. The § substance of those recognized in a number of liability has claims was that Navarette was removed as Strickland, Wood v. 420 prison situations. See librarian and a law-student visitation 992, 308, 214, 95 43 L.Ed.2d 43 program U.S. S.Ct. in which he participated was ter (Feb. 25, 1975); 4293 solely punish Scheuer minated U.S.L.W. or hamper legal 1683, Rhodes, 232, 416 94 S.Ct. 40 U.S. activities. The termination or denial of (1974); Ray, Pierson 386 U.S. prison privileges because prisoner’s of a le Brandhove, (1967); Tenney v. 341 547 gal activities on his own behalf or those of 783, 367, 95 1019 71 S.Ct. L.Ed. See impermissible other inmates is an interfer Gould, 547, Williams v. 486 also F.2d 548 ence with his or her constitutional (9th 1973); Harvill, Handverger Cir. 479 access to the courts. See Hooks v. Kelley, 513, (9th 1973); Wimberley v. 1210, (5th 516 Cir. 463 F.2d 1211 1972); Cir. Christ 895, (9th 1971); Campoy, Skinner, 446 F.2d 896 Cir. 723, 468 man v. (2d 726-727 Ramon, 403, (9th 1972). Notaras v. 383 F.2d 404 Hence the allegations Cir. concern 1967). appellees’ But here assertions ing Cir. the removal of Navarette as librarian good they acted in the faith belief that constituted a valid claim. Similarly, they complying regulations with valid termination of the law-student visitation are contradicted Navarette’s affidavits. may well have had the effect of precluded This raised an issue of fact and impermissibly burdening Navarette’s right summary judgment. Wimberley, su of access to the courts. See Younger v. Moreover, pra, Gilmore, 446 F.2d at 896.2 15, dis 92 250, S.Ct. may trict court not assume that the (1971), defense L.Ed.2d 142 affirming Gilmore v. faith good always available. In Wil Lynch, F.Supp. 105 (N.D.Cal.1970); Gould, 547, (9th liams 486 F.2d Martinez, Cir. Procunier v. supra, 416 U.S. at 1973), “[gjood 422, 1800; we said that faith is a de 94 S.Ct. Johnson v. Avery, 419 — liability for damages 483, fense in a suit 747, S.Ct. 21 L.Ed.2d 718 if, under section 1983—at least (1969); Hull, and to the parte 546, Ex 312 U.S. that, ‘[ujnder extent it would be a 640, defense (1941).3 85 L.Ed. 1034 good 2. The existence or lack of faith —a state program might dent visitation constitute a suf- subjective of mind which is therefore a fact— ficiently significant invasion of Navarette’s lib- generally type is not of issue that lends erty property requiring proce- interests resolution, affidavits, by itself to the basis of safeguards outlined in dural Clutchette v. Pro- summary judgment. 809, cunier, (9th 497 F.2d 510 F.2d 613 1974). alleged 3. We need not consider whether librarianship termination of the or the law-stu- granting munities district court also erred secured Constitution and .” laws The section summary judgment places as to the third claim no nar on the nature allega- quality row limitation dismissing the sixth. the conduct which it actionable, makes effect but in claim three are to the tions entirely concerns itself with the conse two were charged in claims one and the acts quences of that conduct. Moreover, the was also negligently; and such committed indicated Monroe v. Pape, Court 365 U.S. respect the sixth gravamen of with charged acts in claims four and five. “should be read against § Field, Williams v. 416 F.2d background of tort liability that makes denied, (9th Cir. cert. responsible a man for the natural conse 25 L.Ed.2d 431 we actions.” quences of his Reading the stat recognized question that it was still open fashion, prescribed ute in the we believe negligent circuit whether a act can in this deprivation that a need not be then, liability. we give rise to Since § purposeful to be actionable under § deciding twice noted the issue without have Norris, (9th Cf. Cohen v. 300 F.2d 24 Wilson, 646, 647 Allison v. it. See banc).4 1962) (in do not imply Of course we that all tor Cockrum v. engaged tious conduct in by public official Whitney, 479 F.2d 86 n. 1 acting color of under subject law is Section creates a federal cause redress under A § *5 who, against un “[ejvery person of action he must show that has been deprived aof statute, ordinance, color any regula der federally protected right by reason of that custom, tion, usage, or State or the specific conduct. In context involved Territory, subjects, subject be causes to here —the administration of prison state ed, any citizen of the United States other systems courts have traditionally —federal jurisdiction within the thereof to the person to intervene been loathe absent unusual any rights, privileges, circumstances,5 or im- deprivation and hence the extent circuit, others, see, agreement. g., 5. This like are in e. v. 4. circuits essential Parker Other 553, McKeithen, (5th 598, 1974); See, Vitek, F.2d g., 488 556 602 Cir. e. Hoitt v. 497 F.2d n. 4 McGinnis, 178, (2d Sostre v. 442 F.2d Cataldi, 272, 191 1974); Cir. (1st Howell v. 464 F.2d Cir. denied, 1049, 1971), 719, 404 cert. U.S. 92 S.Ct. Maryland, (3d 1972); McCray v. 456 279 Cir. (1972), traditionally 30 740 has L.Ed.2d 1, Averett, 1972); (4th v. F.2d 5-6 Cir. Jenkins in reluctant to interfere matters of state 1228, (4th 1970); Par 424 F.2d 1232-1233 Cir. Field, supra, administration. See Williams v. McKeithen, 553, (5th v. 488 F.2d 556 Cir. ker See, g., Mayfield Craven, 416 F.2d e. v. denied, 838, 67, 1974), cert. 419 U.S. S.Ct. 42 95 (9th 1970); Cir. 433 F.2d 873 Smith v. Schneck Williams, (1974); 65 Roberts v. 456 L.Ed.2d loth, (9th 1969); 680 414 F.2d Cir. Stiltner v. denied, (5th 1971), 819 404 Cir. cert. U.S. F.2d (9th Rhay, 1967), denied, 420 371 F.2d Cir. cert. 83, 866, (1971); 92 S.Ct. 30 L.Ed.2d 110 Whirl 2038, 925, 977, 87 S.Ct. 387 U.S. 18 L.Ed.2d 389 Kern, 781, (5th 407 F.2d 787-789 Cir. v. 352, 964, (1967); S.Ct. 19 U.S. 88 L.Ed.2d 378 denied, 901, 210, 90 S.Ct. 24 cert. Gladden, (9th 1964); 338 F.2d Snow v. 999 Cir. (1969); Shappell, 177 468 L.Ed.2d Fitzke v. Dickson, (9th 314 Weller F.2d 598 v. Cir. 1072, Cox, (6th 1972); 1077 v. F.2d Cir. Puckett 930, 1551, 373 U.S. 10 233, 1972); (6th Spence F.2d 234-235 456 Cir. (1963). Riley Rhay, But see v. 407 Staras, 554, (7th 1974); 507 F.2d 557 Cir. v. (9th 1969). F.2d Cir. 496 Brishke, 6, (7th Byrd v. 466 F.2d 10-11 Cir. Nevertheless, as noted in Parker v. McKeith- Rowlen, 367, 1972); Joseph v. 402 F.2d 369- 556, en, supra, longer F.2d at “it can no 488 Lawson, (7th 1968); Dewell v. 489 F.2d 370 Cir. correctly asserted federal courts are 877, (10th 1974); 881-882 v. Van Cir. Daniels unwilling situations to in all review the actions Venter, 29, 1967); (10th 382 F.2d 31 Cir. De prison administrators of state determine the Stringer Dilger, 536, (10th v. 313 F.2d 540-541 possible violations existence of of constitution- Carlson, 1963); U.S.App.D.C. Carter v. 144 Cir. context, rights.” In this see al Wolff v. 358, 388, on other 447 F.2d 365 reversed McDonnell, 539, 2963, 94 41 418 S.Ct. 602, 418, grounds, 34 L.Ed.2d (opinion at 555-556 States, (1973). But cf. Brown v. United J., 613 Court) (Douglas, dissenting in and 593-601 1973). (8th F.2d 287-288 Cir. part). pleadings ette’s and affidavits suffi- by ordinary failed rights held many federal which ciently allege un of the con- yet is as the existence survive incarceration citizens See, McDonnell, contemplated by that section. spiracy Wolff Cf. certain. 555-556, Breckenridge, g. e. Griffin Nevertheless, 102-103, here the prisoner’s California, alleges Sykes to have been v. State Navarette rights which (9th 1974); reasonably Cir. Granville fundamental are violated 1969). well-defined; Hunt, (5th allegations that state offi 411 F.2d those negligently deprived him cers part, part, reversed in Affirmed 1983 cause of action.6 rights state § remanded. in dis court did not err The district HILL, Judge (concurring part District seven, nine. eight, and missing claims dissenting part). them, predicate sought Navarette Procunier, Stone, and liability of defendants majority opinion except I concur in the Morris, liability, theory personal on a it relates to the Fourth and Fifth Claims. I respondeat the doctrine of rather on but the trial court’s would affirm dismissal of that, recognized has superior. This court of action for those causes failure to state circumstances, Rights the Civil appropriate agree I cannot either with federal claim. imposition of vi contemplate does Act the characterization those claims as con liability au liability where such carious opinion majority or with the tained Hesselgesser law. thorized See majority of law made statements (9th 1971); Reilly, 440 F.2d 42 concerning them. Since two causes May, Hansen v. also U.S.C. allege the same acts in identical lan action 1974); Boettger v. will be hereinafter referred to guage, both Moore, But as “the claim.”1 specifically pre of California here the State majority opinion asserts that the sub imposition liability by of such cludes the the claim is that Navarette was stance of 820.8.7 Cf. the statute. See Cal.Gov.Code § librarian, removed as and that *6 reading Hesselgesser of in Supreme Court’s law student visitation in program Stanford Alameda, County of Moor v. terminated, participated which he was 704 n. L.Ed.2d 596 “solely punish hamper legal to his activi that ties.” I submit this is not a correct claims, they pur All nine so far as of the substance of statement the claim. I predicated upon 42 the ported quote operative paragraphs to be U.S.C. in full of properly complaint dismissed. Navar- the in the footnote.2 Summary judgment erately perpetrated knowing as to the third cause of . . . in a dis- ” because, improper regard plaintiff’s rights action was as in the case of of constitutional . . two, viewing in counts one and the evidence being as and in the Fifth Claim undertaken “in Navarette, light favorable to we are the most disregard plaintiff’s bad faith of constitutional say appellees prevail unable are entitled to to lacking] probable . . [defendants’ law. as a matter of plaintiff’s legal that cause to believe activities unprotected thereby with were interfered “Legislative 7. The Committee Comment —Sen- by the U. S. Constitution. 820.8, ate,” provides part: in which follows § holdings nullifies the of a few “This section “II public that some officers are vicari- old cases ously for the torts of their subordi- liable approximately during For three months the (Emphasis original.) nates.” in 1971, plaintiff position prison fall held the of of Soledad, during at which time his law librarian majority Fourth and Fifth 1. The treat the Caus- library heightened to access facilities enabled involving legal ques- the same es of Action as fully performing plaintiff, in addition to his they agree tions and I that should be so treated. librarian, pursue legal allege exactly to his own duties as the same actions in Both claims self-education, consequence, language except pre- that the Fourth and as a to identical Claim having pare semi-adequate pleadings ap- the actions as been “delib- and characterizes writs in ing complaint plain- possible. by alleging Again, that is the begins The claim librarian separate of law no claim contains statement of position the de- tiff held It during fall of 1971. alleged purpose the intent or in fendants’ ter- three months for advantageous to program. termination, was position minating the Its says that library access to increased plaintiff, “thwarted” his efforts “to said him because to his own “pursue him adequate legal enabled fund of knowl- acquire facilities and, consequence in to legal edge respect legal self-education” in remedies availa- pleadings writs and thereof, prepare (Emphasis and sup- to himself others.” ble others. for himself and cases 12 different impeded Because termination plied). complaint plaintiffs says, self-education, Late in plaintiff says he was “abruptly” him. taken from was position pursuing adequate from “in “prevented” the defendant’s statement of separate No timely legal manner” available reme- and li- purpose taking alleged intent of behalf himself and others. dies on is away plaintiff from the position brarian characterizing purpose In the intent or made. acts, sweeps paragraph V both defendants’ goes then on to describe claim The unrelated apparently together acts and program law student visitation Stanford they charges were undertaken for the obviously is This act termination. and its “thwarting preventing” purpose plain- to the removal in time not related acquisition “knowledge plaintiff’s says complaint librarian. tiff as law remedies . .” com- program visitation the student most, alleged, What has terminat- February 1972 and was menced in librarian, he was discontinued as says that year. Plaintiff of that ed in fall program the student visitation was dis- program from because he benefitted institution, plain- because continued he from the received advice and assistance becoming good lawyer tiff was such a begun significantly to edu- “had students him purpose preventing for greatly “and thus facilitate cate” him a better one. becoming legal which he had large actions” number majority opinion complaint reads the seeking bring himself and oth- making a claim of interference with as termination of the ers. The right of to the courts. access I obviously plaintiff’s alleged total termination was fairly it can be so read. not believe prison; fair read- do it for the entire no other cases, abruptly changed plaintiffs job position, proximately on behalf of and as twelve different thereof, plaintiff’s proximate result others. access himself and library legal and materials in said “Ill books Moreover, fall, substantially February, Starting curtailed. or about a small *7 defendants, students, individually law all of whom both and in Stanford said con- number of supervised practice, together, also the for cert terminated visitation were acredited Department permitted by immediately preced- of Corrections to the described in the purpose ing paragraph, and, Soledad the of proximate for visit inmates as a result thereof, thereby legal problems plaintiff’s discussing of efforts the needs and thwarted to adequate legal knowledge acquire times law students at all of inmates. Said fund in such reasonably legal respect in connection the available to to remedies him- conducted themselves respect consequence and in no abused others. of interviews self and direct both with such legal program. privileges said The said as described in the under actions defendants the plaintiff prevented paragraph, Plaintiff received assistance which within from advice and adequate timely manner, pursuing had law interviews and as result of such students avail- a and, plaintiff, begun significantly legal to remedies behalf of educate on himself able and thereof, greatly consequence the to facilitate a others. actions, including legal large the of “V number action, seeking which Plaintiff had been STONE Defendants and MORRIS deliberate- within judicial ly perpetrated bring to relief both the actions hereinabove to in order obtain describ- thwarting purpose impeding and others. the of and ed for himself acquisition knowledge plaintiff’s of of “IV remedies, knowing disregard legal and did so defendna ts STONE and MOR- Late in individually together, rights.” RIS, plaintiff’s and in concert constitutional of both (Johnson v. VII, Avery, the con inmates plaintiff describes paragraph (1969)), been de the rights of which he has and stitutional He in to a set complained right reasonably good the acts of. of access prived (Gilmore But he v. Each speech process. Lynch, supra). free and due lawbooks cludes corollary rights of access part no claim whatever of denial those made a makes right general necessarily of access courts.3 is the to directly prosecution to the legal related right has been of access to the courts majority opinion actions. The seems here by this court as follows: defined right the to extend access to courts the means the . to the court “. access alleged right to the to a legal better educa and file prepare, to serve opportunity tion, alleged right to continue as pleadings or other documents whatever and the alleged right law librarian to con necessary appropriate or order to are a law student program. tinuation of visitor prosecute proceedings court commence agree I rights cannot these are affecting personal liberty, or to as one’s necessarily directly so to the related therein, and sustain a defense and to sert right of access general to the courts to and and receive communications send part be made a they should thereof. As to judges, concern lawyers courts and from right to become a alleged lawyer, better Baiileaux, such matters.” ing Hatfield education, legal pursue to this court has (9th Cir.) den. sub Bailleaux, said in specifically Hatfield v. Hatfield, Bailleaux v. nom. supra, 105, 7 (1961). have right “Inmates the constitutional right cases establish of ac- and act as waive counsel their own law- to the courts cess includes more than the this does not yers mean that a non- but prepare, right prosecute legal file and given lawyer opportunity must actions. legal acquire education.” 290 F.2d at right has also been It said that encompasses to the “. courts access The statement opinion majority petitioner means a defendant or all the that “the termination or denial of require get hearing a fair might because privileges prisoner’s legal of a ac- charges brought against all judiciary an impermissible tivities is interference grievances alleged by him.” Gil him with his or her right constitutional access (N.D.Cal. Lynch, F.Supp. more to the courts” unfortunate sepa- in two [3-judge 1970) court], aff’d sub nom. First, it respects. equates rate the indefi- Younger Gilmore, concept “legal nite with the activities” right to the term of access courts. The Among the other which related “legal encompass legal could stu- activities” have held to be necessarily involved in any specific dies unrelated to or it case right of access to the courts are: encompass filing prosecution could to seek and receive the assistance of or it could encompass of an action various (Procunier Martinez, lawyers between. The activities in term is much (1974)), stated, vague and too broad. As I too right to the knowledgeable assistance of access to would define courts counts, should be *8 It borne in mind that this to attack the same actions. Plaintiff’s ordinary prisoner litigant. pro per is no His paragraph having working II claim in sophisticated polished. pleading is both during period ques- on 12 different cases language choice would do credit to a His plaintiff credible indeed. tion seems So this private practitioner top-level specializing in special advantages to the not entitled afforded rights litigation. pleading indicates a civil unknowledgeable prisoners to semi-literate adequate knowledge than of constitution- more pleadings although, my view, scanning their law, Act, particularly Rights the Civil and an al would be the the result same if he afford- of the essential awareness elements different advantage. ed that used, of law which can be in different theories court has able under language previously which this 1983 for the § discriminatory Bailleaux, quoted supra. used in Hatfield v. termination or prison denial of privileges right Secondly, it extends of access to generally inmates, all under- which are the courts to activities not rea- prisoner’s taken because of the exercise of thereto, as sonably related aforesaid. right his of access to the courts. This re- quirement discriminatory specif- action is my The remainder of dissent is directed ically recognized dealing in two cases with following in the majority sentence religion. prisoners’ freedom of Sostre opinion: McGinnis, (2nd 1971), denial prison priv- “The termination or Oswald, cert. den. sub nom. Sostre ileges prisoner’s legal because of a activi- 719, 30 impermissible ties is an interference with right his or her constitutional of access to Pate, (1972); Cooper L.Ed.2d the courts.” I believe that to be much too broad a and, view, my should also be statement and one which is not supported applied right to the of access. by the cases cited. Hooks v. Kelley, 463 law, the rule correctly If 1 have stated F.2d 1210 is a holding by the the instant case does not fall within it be- complaint Fifth Circuit court that a states a complaint cause the face of the shows no charges 1983 claim which peti- that § discriminatory denial privileges. No tioner had been transferred from minimum even if cause of action is stated it be as- security security to medium only status be- charged sumed the acts were done persistent cause of his use of the courts to solely get plaintiff at the because he was attack prison his conviction and to attack But, filing many so cases. so to read the conditions. This case involves no termina- complaint would be a forced and unreal tion or denial It involves an privilege. of a reading of it. attempt punish discourage access to by imposing courts more onerous condi- case, In the instant the student visitation tions of incarceration. program was cancelled for the entire prison. There was no against discrimination this Skinner, (2nd Christman v. 468 F.2d 723 particular plaintiff involved. It must be holding by is a Cir- Second prison conceded that the authorities had the cuit that a claim is sufficient which § discretion to initiate the and re- charged prohibited plaintiff was tained discretion to terminate it at will. associating with fellow inmates and was view, my when the non-discriminatory gym denied equal facilities basis with prison termination of a wide privilege is al- of, other inmates because and in retaliation leged, support it does a complaint under for, litigation of court commencement § against prison officials. This case does in- privilege volve a but involves the discrimi- plaintiff’s As to position prison as librari- natory denial prisoner thereof because the an, again it would have to be conceded that instituted court law suits. A case like much again we are dealing with a privi- Hauck, Christman is Andrade v. Neither lege. nor other It holds that a prisoner has a constitutional right either to complaint is sufficient which charges that a librarian, as prison be selected or to remain prisoner deprived commissary privi- position in that once selected. Only one leges punishment as for corresponding with prisoner may at a time the law librarian. Again, a privilege generally courts. Surely authorities retain the available to all inmates was denied or ter- right to rotate position among in- discriminatory minated in a manner pun- they may duty even have the to do mates — undertaking ishment for court actions. They appear so. would also to have the precise I believe that position a more statement of to discontinue the entirely. governing rule is redress is given prisoner afford- If a is not selected for the *9 given job replaced once position, or thereby he is not prisoner,

it another privilege generally available to

denied Thus, I would hold that the instant

others.

complaint concerning plaintiff’s removal position

from the does not state cause

action under require prison

I authorities to would

undergo the trial of a court action for the first, privilege,

termination of either be- sufficiently

cause neither action is related courts, and,

to the of access to the is,

even if it neither act involves the dis-

criminatory prison privilege gen- denial of a

erally to other inmates. America, Appellee,

UNITED STATES of MORRISON, Appellant.

Robert C.

No. 75-2347.

United States Appeals, Court of

Ninth Circuit.

April 7, 1976.

Rehearing Denied June Cory

Kenneth C. (argued), Vegas, Las Nev., for appellant.