*1 adequate surrounding An barrier an 804 P.2d aboveground significant pool eliminates WHITE, Steven Rande portion the risk of infant or toddler Plaintiff-Appellant, pool. However, drowning in that gives false same barrier illusion of safety, security particularly when it LEWIS, Samuel Director of the Arizona partially ground. into the is recessed Corrections, Department of Defendants-Appellees. this, upon Based all of sim- ply genuine is a asserts that issue of there, No. 1 CA-CV 88-615. regarding material whether fact the new Arizona, Appeals Court of property the Kimes had owners reason 1, Department Division B. recognize the condition and realize the not, says, Casagrandes If risk. are Sept. 1990. Setting problems aside liable. the serious Review Denied Feb. for, attending the foundation and timeli- of, affidavit, Lawniczak ness the trou- plaintiff’s argument it

ble

stops addressing short of the essence of problem. danger posed If the

pool recognizable by Casagrandes, recognizable equally

it was the new owners, lessors,

property and by their danger recogniz-

Kimes. If the was not so knowledge

able that should not be attrib- property

uted to the new owners or the

Kimes, equally it obscure the Cas-

agrandes. Casagrandes neither con-

cealed nor anything failed to disclose

they property. pool sold the was there everyone everyone to see and for suggest

evaluate. Plaintiff does not other-

wise, simply point. does not address the Homes, Inc., Shannon v. Butler (1967)

Ariz.

(deceptive by glass illusion created door as builder);

obvious as to defendant to owner Gammell,

Bailey Wash.App. (section (1983) P.2d 353 of

n applicable the Restatement where ven-

dor no reason believe vendee steep dark

would not discover that stairs dangerous). trial court is af-

firmed.

CLABORNE, P.J., EHRLICH, J.,

concur. *2 Corbin, Atty. rights sought $123,000 K. Robert Gen. Pamela constitutional and Eaton, Gen., Phoenix, J. Asst. Atty. damages. respect for With his claim defendants-appellees. courts, denial of access to the White al- leged complaint on January his White, Phoenix, pro. Steven Rande 1988, he was advised that he would no per. longer photocopies or be allowed receive envelopes legal correspondence. for his OPINION that, result, White as claimed a he HAIRE, Judge. RAY LEVI forced to rights against settle civil granted judg- The trial County the Sheriff Pinal for a substan- Defendants-Appellees, ment for Sam Lew- tially lower amount than he otherwise Department is and the Arizona of Correc- would have. claimed that he had (collectively, Department), tions on the been denied his fourteenth amendment by Plaintiff-Appellant, filed complaint Ste- right process of due indigence because the ven Rande White. White was an inmate at policy impeded prosecute his ability to Florence, Prison in State Arizona. case. White also stated that had sever- that, White claimed result De- pending al cases and state federal partment’s indigence policy, he was denied courts. rights his constitutional access to the respect With to his claim of denial courts, friends, family access to his and family friends, access to his and sanitary supplies. and access to The trial explained complaint in his that he could not granted Department’s for purchase stamps, envelopes, afford to summary judgment after White failed to paper required and correspond appropriately respond to Department’s them. White claimed that he had been motion.

denied his first amendment to com- BACKGROUND family municate with his and be- friends Department’s policy cause the allowed objects Department’s indi- Department money to take from his gence policy provides that an inmate pay photocopying account to for his and his eligible indigence for status documents, postage leaving for him prison account contains less than for $12 money correspondence no with his fami- thirty days preceding ap- the inmate’s ly and friends. plication. White, According indigent following inmate pay sup- need not for the complained alleged White also anof deni- plies: of sanitary supplies. al He stated in his (1) soap, deodorant, laundry shampoo, complaint purchase that he was unable soap, toothbrush, soap, toothpaste, bath comb, laundry soap, and toothpaste, bath comb, razors, cleaning supplies; alleged or razor. He claimed that the (2) postage pieces non-le- for three eighth denial violated his amendment gal per week; mail subject to cruel and unusual (3) photocopies unlimited doc- punishment keep because he was unable to copies applicable uments and rules of himself clean. He be- also claimed that court; laundry cause he did not receive the deter-

(4) gent washing in- postage correspon- clothes services that for all prisons received, dence; mates in other he had equal protection been denied of the law (5) envelopes paper. guaranteed by the fourteenth amendment. However, a pay non-indigent inmate must supplies. his own 28, 1988, Department On June filed a February summary judgment. verified motion for White filed a With complaint against Department. spect claim was forced sought a declaratory judgment January to settle another lawsuit on Department’s indigence policy photocopies, was denied violated attached the affidavit of be on the served Reel,

Anita services correctional officer. copy that White could not afford to explained ineligible Reel that White became requested mail those documents. He indigence status on November *3 Department to as- trial court order the to reapplied that had not for indigence and he properly that could liti- sure them White again eligible. status when he became She gate case. his library log, summarized the attached and 18, 1988, July On for a White moved that indicated White had received twenty-day time file his extension of to photocopies, regardless hundreds of of his response Department’s to the motion for ability pay, through to October summary judgment. explained He that on January example, For from January 1988. 1988, 19, July January placed 8 he had been in and 3 to White received 832 detention pages photocopying. explained of Reel assistant, Conn, arranged that his had privileges photocopying that White’s were July to him on see 11 but needed additional 12, suspended days January for two on prepare response. time trial to his 1988, suspected photo he was 2, granted August an extension until copying legal material other for inmates. 1988, filing response for the to of White’s copies reports Reel incident attached Department’s summary the motion for alleging photocopied that White had other judgment. copies inmates’ material and attached July again On Conn to wrote copied some of the other inmates’ material Depart- court. trial He stated that the Department argued by White. also placed had in or- ment White detention that, received even White had insuffi punish litigating der him case to for this photocopying, cient he have could used car Department paper. that, attempted and that the had to regardless Reel bon stated indigent, was he al sabotage whether White was this to forcing White given supplies including ways typing to who unfa- switch assistants pleading paper, paper, pens, carbon it. miliar with clips, typewriter, typewriter and a ribbon. 27,1988, July On White also to wrote that respect With to White’s claim he was trial He he court. advised court that friends, family denied to detention, had been released from now Department argued inmates have no that help longer that was no Conn authorized non-legal right to free mail constitutional urged He that he needed him. Conn’s regardless indigence. See Kaestel v. the Department’s order to Lockhart, 746 F.2d Cir. summary judgment. explain- for 1984). Department argued that detention, ing why placed he he had been money litigation, chose to his on his spend copies certain noted that “incident family not on and friends. ports” Depart- had been attached respect With to White’s claim that he concerning statement of facts its ment’s Depart- sanitary supplies, was denied judgment. motion for One Busk, Gary ment the affidavit of attached reports these incident stated that another another correctional services officer. Busk Depart- identified inmate had notified the supply indigent stated lists and attached copied inmates’ ment that indicating sanitary sup- that White received July admitted plies on work. White three occasions October and November, 1987, regardless approached of whether he and Conn inmate indigent. copy He report. with their of that incident they afford merely stated that wanted “to Conn, 23, 1988, Jerry On inmate June challenge opportunity the inmate the White, wrote a let- helping assistant report respect factualness with explained ter the trial court. He alleged actions.” He advised the court prepared court that he had non-uniform day placed that on the next interrogatories, request production for documents, request for detention. admissions again also notified the trial court that on The trial court time for extended the 3, 1988,

August upon filing he had served of White’s to the De- interrogatories, partment’s non-uniform judge- motion for admissions, request request ment, and a September this time to production of documents. September On White wrote court, stating although trial July The trial court treated White’s status, was then approved indigence claiming letter as motion interfer- security the new officer refused legal process, requested ence him photocopying. requested respond to White’s motion. problem. trial court correct this Again, the court the time for extended *4 filing response Depart- to the September 12, 1988, again On summary ment’s motion for judgment. trial advising wrote the court that September $12, he would have earned response letter,

In Depart- to White’s the ineligible and that he would be for indi- ment advised the trial court that White had gence longer pro- status and would no placed been in detention based on the De- postage, vided with photocopying, or sani- partment’s conclusion that White and Conn tary supplies. He also stated he that had attempting to intimidate the inmate past legal obligations deficit over for $90 report. Depart- named the incident money and that his would be withheld until position ment took the that White was not paid. requested that deficit was He a tele- help particular entitled to legal the phonic hearing with so the warden that the such assistant as Conn. Based the on dis- explain warden could how White could ob- covery just documents White had served on tain assistance for his case. the Department, concluded that is obvious from this documenta- “[i]t 23, 1988, September On the trial court litigate tion that either can ade- again reminded White that had he to re- he, quately for himself or at point, has spond Department’s to the sum- a new inmate being assistant or he is still 25, mary judgment by September 1988. aided Mr. Conn.” However, no was filed. There- after, 12, 1988, on October the trial August

On again wrote granted Department’s motion for to the sum- explained trial court. White that he mary judgment: had discovery filed those documents before placed

he was request- detention. White Summary Defendant’s Motion for ed that Judgment trial court determined ruling. has come on for him, Conn need not assist then trial no Response Court has received to the appoint should Summary counsel for him. Judgment Motion for after having granted several extensions September On the trial court filing Response, being time for the last concluded that the Department’s decision September In reviewing White with different Summary Judgment, Motion for assistant did not interfere with White’s le- Court finds the Motion addresses gal process: each the issues raised Plaintiff and mainly The issue comes down to record, time, present at whether Plaintiff has a as- there no shows that are material issues person particular previously sistance of a dispute of fact in and that Defendant assigned to him as a writer in con- writ Judgment entitled to as a matter of law. nection present proceedings. with the On October The Court does not find from the infor- wrote requesting trial court provided mation that has the trial court been granting Depart- Court that there reconsider its order has been inference or, any recognized judgment ment summary in the alterna- [sic] process by tive, pro- Defendant’s that his letter decision be considered as his vide Plaintiff with a of appeal. different as- notice White stated that he was Conn, sistant. merely being help denied the Yuma, being any legal City denied the Ferree v. sub- (App.1979). assistant. He asserted that had requests appoint- mitted several light complexi of the volume and ment of a assistant and had received ty litigation, of modern we consider response. objected no that because requiring appellate cases trial court or assistant, any legal he did not have court to search the entire record connec a record sufficient to over- could create tion with a motion for Department’s motion summa- come the contrary authority. to be modern It is ry He judgment. noted that claim attorney’s to search the responsibility States frivolous the United record: Depart- District v. Arizona Court Gluth It policy is also the of the court that Corrections, PHX 84-1626 ment No. we, court, neither the trial nor the court CAM, indigence policy that the found required perform of appeals should be pur- to choose between “forced inmates by searching work the record counsel’s supplies es- chasing hygienic essential attempt which estab- discover facts legal supplies.” sential *5 lish or defeat the motion [for motion for recon- In to White’s judgment]. must These are tasks which sideration, argued Department that in- the be left to counsel. guaranteed digent access to inmates were Cal., Ariz. Mast v. Co. 140 through legal Standard Oil the either assistance courts of 1, 2, (1984). 137, 138 explained As through adequate library. or an law IV(b) Smith, 817, 828, in of the Uniform Rules of 97 Rule v. 430 U.S. Bounds Arizona, 72, 1491, 1498, Superior Practice of the Court of 52 L.Ed.2d 83 S.Ct. opposing party “if the does not serve and 25, 1988, On trial court de- October the memorandum, required answering file the White’s motion for reconsideration: nied non-compliance may such be deemed a ... matter, the reviewing In the file in this motion, the granting consent to the of ... granted of Court it extensions notes that dispose of the motion and the court Response to file to the Motion time a summarily.” 1988, 20, Summary July Judgment on 7, 11, 1988, August September argues that and on he was able filed; Response respond no the 1988. Thereafter was to search the record requested. Department’s judg no further extensions interim, In received the this Court has Conn’s assist ment because was denied correspondence numerous items In states that ance. the alternative White ar- Mr. White that he is respond which indicates he was not able to because he was and, make apparently, ticulate able to any legal assistant. denied authority as appropriate use of alleged denial de argues that this in his latest citing has done in law trial prived him court. petition letter and Court. to this requires courts of access provide inmates DISCUSSION adequate adequate law libraries assist- summary judg- granted The trial court persons trained in the law. See ance from Depart- ment because it found 817, 828, Smith, 430 97 Bounds v. U.S. ad- summary judgment ment’s motion for 1498, 72, 1491, (1977) L.Ed.2d 83 S.Ct. 52 dressed each claims and of White’s (habeas corpus proceeding); v. Wolff Depart- White had failed to 539, 577-80, McDonnell, 94 S.Ct. U.S. ment’s motion. 2963, 2985-86, 935, 41 L.Ed.2d 963-64 (1974) (civil rights argues proceeding); Knight is- that he raised several Court, P.2d Superior com- Ariz. sues of material fact his verified in (the (App.1989) paging system used at plaint. He explains must examine that we Library record, complaint, the Madison Street Jail Law including the entire constitutionally permissible alternative to reviewing summary judgment. library provided para- direct access to the We note that courts have held inmate). participation litigation assisted the absence an inmate’s dem- alternative, not, fact, an must onstrated that the inmate had permit See, been among e.g., assistance inmates. denied access to the courts. Oliver, Conway 489- 429 F.2d Avery, See Johnson v. 393 U.S. (“1) Cir.1970) During, immediately 21 L.Ed.2d 723- sub- S.Ct. to, (1969). However, sequent alleges Department may the time

impose “upon deprived the was of reasonable access to the reasonable restrictions acknowledged prisoners Appeals courts the District Court of propensity First one giving seeking abuse both the District of California received preparation applica- plain- assistance brief and two written motions from tiff; 2) During plaintiff alleges tions for relief.” Id. at S.Ct. at time that he deprived 21 L.Ed.2d at 724. of reasonable access Supreme to the courts the Court of the Here, argue White does that he was petition United States received for writ adequate legal physical denied access to corpus page, habeas well as a 70 well library. Accordingly, the trial court con- documented, certiorari; petition for writ of Department’s cluded that decision 3) years, and Within the last 3 plaintiff has deny Wftiitethe assistance of Conn and filed coupled three suits this Court White with different assist- papers pertaining numerous and motions deprive ant did not access to the thereto.”); Craven, Bryant v. courts. (9th Cir.1969) (“the extensive *6 agree We with the an trial court that by appellant briefs in proceeding, filed this inmate does not have the any par- to and the voluminous citations contained legal ticular assistant. See Gometz therein demonstrate no such denial ac- [of Henman, (7th Cir.1986) 807 F.2d courts]”). cess to the generally, Anno- (“[the legal any not does offer us assistant] tation, Federal Rights Under Civil Relief only prison- reason to is believe he the Acts to Complaining State Prisoners of in system satisfy er the federal who can Courts, 23 With Access to Interference A.L.R.Fed. needs; legal imag- we cannot [the inmate’s] § why legal be.”); ine would [the assistant] The trial court concluded that White’s Spellman, Storseth v. 1353 letters the to trial court demonstrated that (9th Cir.1981). he was articulate and to make appro- able argues priate legal authority. in the use of the alternative that On help assistant, us, any say was denied the record we of submitted cannot just not appeal Conn. On the trial court abused its discretion in arriv- the ing asserts that White at that help was of conclusion. offered the other assistants. in White did assert

his October letter CONCLUSION denied any legal the of assistant. responded could have Because White In Department’s summary to White’s motion for October letter, the trial judgment, the trial court did not in concluded that White err holding was articulate and appropri- able to that he was not make denied access legal authority. ate use of trial On the facts appropriately As we have court. noted, court, previously adequate library presented to facilities the trial its decision was clearly noted, were available to White. As al- party previously Neither correct. any concerning though given opportunities cites decisions do whether an several is, fact, so, inmate any denied White did file access to the not affidavits contro- verting courts when the record Department’s demonstrates that statement that, ishe articulate and able to appropri- pos- make facts. We further note with the exception ate use of authorities of the claim that available sible Conn, him. of not only denied assistance per inmate, against pro liti- any judgment White has even gant regardless facts argued presented that the actual the merits Thus, solely true. deficiencies procedural are and based granting if he objection litigant might which the correct Second, Department’s summary judg- given motion for opportunity to do so? defective, procedurally ment was not favor does the record this viewed substantively. genuine merit issue of ma- appellant, but was also without reveal a Supreme precludes judg- Under the Court’s decision fact terial Bounds, supra, an inmate not entitled to ment? an inmate receive assistance my majority answers Because in view the given if the inmate is access to an advisor incorrectly, In questions I dissent. these Therefore, library. adequate legal we doing, I of course do not assess so assume, contrary Department’s posi- therefore do truth White’s claims and tion, that was denied assistance from intimate view to whether advisor, trial any inmate court’s them. I agree would trier fact decision was nevertheless correct. I that on the only because believe dissent decision, For the reasons stated present record is entitled by the court is entered trial hear and decide his have trier fact affirmed. claims.1 P.J., JACOBSON, concurs. I. Judge HAIRE Retired LEVI RAY

Note: participate appeal in this was authorized necessary I it to state some addi- believe the Arizona order the Chief Justice of the nature of the tional facts illustrate Const, pursuant to Ariz. Supreme Court doing so, I at- claims. have art. and A.R.S. 38-813. § § tempted repeating to avoid factual except majority opinion in the statement LANKFORD, dissenting. Judge, necessary to the context. understand prisoner, This is action filed *7 White, acting the benefit Steven without alleged complaint that White's verified the claims that defen- counsel. White Department policy re- the Corrections dant, Arizona director garding provision of indi- necessities to Corrections, White’s constitu- violated gent rights White’s under inmates violates rights. under the tional relief White seeks the United States Constitution. first, to eighth amendments and fourteenth indigent he contended that is but White Such the United Constitution. States grant him refuses to that 42 U.S.C. recognized claims are under claimed that indigent status. White also rights statute. the federal civil § non-indi- policy impermissibly forces rejected summarily superior The court personal gent to inmates choose between judgment White’s entered claims and to He and access the courts. cleanliness against trial. him without a he has cases alleged that because several courts, spend most pending in the must of two appeal requires White’s resolution photocopying, leaving him of his funds on questions. First, a trial court enter should (App.1986). judgment, is same standard as that reviewing summary this court This 1. In ruling light trial courts in on most favor- used must view in the the evidence party opposing motion; thus, motion, appellate judgment es- review is and must able to the sentially novo. Bank give party de United that of all favorable infer- Arizona the benefit (App.1990). Allyn, reasonably 805 P.2d 1012 from the ences that drawn my judgment, majority applied an incor- evidence. in that manner If when viewed 81-82, (At might persons rect standard of review when it stated evidence is such that reasonable 810-811) superior did P.2d at as whether there reach different conclusions facts, finding that White genuine any not abuse its discretion is a issue material capable representing himself without ex rel. Corbin must be State reversed. Inc., any Challenge, assistance. Ariz. purchase hygiene Later, without funds to sup- items.2 received some plies. funds, Department charged his account items, any for leaving these him without White filed for a motion order to show remaining funds. had White stated complaint seeking cause with his order an exhibits and to support documents his mo- requiring the Director to him treat as indi- tion, provide could them to the gent supplies him with certain court because he lacked the financial mailing legal correspondence. and free copy means to and send them. This ver- stating White attached an affidavit supported by sion of the facts depart- although he was not classified as an indi- documents, ment’s own which indicate that gent, his account balance was library photocopy White’s access to the ma- responded nine cents. The Director chine was terminated. argued applica- White’s motion and that its indigency policy tion White had superior re- denied White’s precluded filing him from his lawsuits. an newed motion for order to cause. show thereafter, Shortly Jerry M. Conn wrote assistant, Conn, again court, identifying to the himself as in- wrote to the court. Conn indicated that he “jailhouse lawyer” mate and a assisting prepared discovery requests on White’s White with the lawsuit. The letter stated behalf, but that White could afford to eligible that because White was not mail them. Conn stated that “unless some- indigent status, funds, and had no he would done, thing is simply Mr. White will not be reply plead- be unable to the Director’s prosecuting able continue his case— ings. requested hearing Conn a court deals, part, very prob- with this White’s claim. lem; meaningful access, his lack or ham- ultimately support reply filed pered access the courts.” of his motion and included his affidavit The Director then filed his motion for stating “ability any- his to mail out summary judgment. After the Director thing severely hampered has been due to motion, prison filed his placed officials lack of pay postage, funds to for the in “investigative lockup” detention. and ineligibility ‘indigent’ status.” permitted He was not to communicate with court denied White’s mo- Conn or with assistant. tion. prison apparently kept in iso- thereafter, Soon for an or- moved lation until after the due date “provide der with an alternative sponse judg- Director’s means of supe- the courts.” The *8 ment motion. motion, finding rior court denied White’s sought White then an extension of time purview that it “not did come within the respond to to the motion for legal presented issues to be to this judgment on his inability speak based to to court.” legal his assistant. Conn’s attached decla- White then his renewed motion for an request ration stated that his see to White order to His show cause. attached affida- refused, prepare response to had been longer vit stated that the time he no at was and that he had been see forbidden to indigent. However, classified as White just until days White two before the re- charged claimed that had sponse due. was him for “free” he had items even when indigent Apparently, superior granted held status. White’s court mo- White’s prison account was for some “free” tion for an debited extension. (Maj. complement

2. As the *9 Referring the ruling. its to reconsider for himself or the litigate to ability White’s deficient, finding that the record court’s availability White then legal of assistance. been denied reiterated that had the dis- explaining to court wrote the assistance, help the of legal just all prepared prior to covery requests had been “I submitted detention, particular assistant. have and that being placed WTiite superior responded either The court never superior aware that 4. now 3. The court was request for or his motion court order White’s "lawyer” serving and that was Conn White’s appointment of While a trial court for counsel. prison to assist Conn officials authorized motion, grant such a the court must need not However, pursuit of this claim. the appointment of on a motion for counsel. rule court either to show that the the record fails Ramsey, 539 F.2d 25 Cir. See Alexander v. responded to them. considered Conn’s letters 1976). requests prison several the judgment, Pursuant to this the district [to officials] appointment legal of a me The permanent injunction. assistant court issued a I with this case. have received no court inter alia ordered the defendants to: systematize provision from defendants.” of inmate assistants; 48 hours within requested the superior court assistance; quests for inmate ensure appeal, as a treat his letter notice meeting between the inmate and deny court were relief. assistant occur 72 hours of within such letter request; directed the replacement find promptly ruling court’s attention longer Unit- assistant when inmate can an no ed District States Court the District assigned assist his inmate/client. in Gluth

Arizona v. Arizona The court also ordered that the defen- Corrections, No. 84-1626 PHX CAM.5 adopt indigency high dants: an standard enough prisoner/plaintiff, suing forego that inmates need not basic prisoners legal supplies purchase hy- on behalf confined at the state minimum giene facility Florence, supplies; calculating sought correctional im- refrain in- proved digency thirty basis, on a day access to the on and instead courts behalf inmate’s indigency inmates. The determine on Corrections based dispute highest fourteen-day did account in the several facts balance relevant (1) prisoners’ pay prisoners, period; provide legal sup- White’s claim here: some con- plies fined to an faces to their cells are not allowed inmate who a court dead- prison (2) line of than library; law less a week has a current inmate given indigency are not account balance of than the assistants additional less time ” standard; cases; (3) work on their “clients’ inmate inmate requests emergency help to meet a court to communicate with their deadline lost, ignored greater have been even if he had an account balance assistants or denied by prison indigency staff. than the standard at time some past during days.7

In stark contrast to the result reached The here, Gluth stated the record district granted court in Gluth injunction that the “marks the successful summary judgment in prisoner favor partial completion of a case the likes of following findings: and made the which I have seen in my never before twen- (1) meaningful Prisoners denied direct ty-five years on the bench.” The prison library access to the law must “Despite went on to state: seriousness receive assistance from someone trained dem- complaints, defendants in the law. onstrated, throughout litigation, cal- (2) history arbitrarily had a unwillingness lous to face the issues. denying prisoners library access. extraordinary Court take was forced to (3) indigency prison’s policy Depart- un- compel was measures to the Arizona acceptable because it forced inmates to ment mer- of Corrections to focus on the purchasing hy- chose argues, findings between essential its.” As gienic supplies sup- and essential Gluth illustrate the seriousness of White’s plies.6 Trotter, Vaughn claims here. Cf Lewis, Depart- evidentiary Samuel Director of Arizona li- basis for a conclusion that the here, ment of Corrections and defendant brary adequate and available. The district taking upon added aas defendant in Gluth Gluth, findings supra, court’s were based office in 1984. pris- That court concluded that some evidence. *10 arbitrarily li- oners were denied access to the majority library adequate 6. The concludes that brary. (Maj. op. facilities were available to White. at 81, 810). Although 804 P.2d at White made injunction subject 7. The is to modification library inadequate no claim that or unavailable, upon receipt por- merely library ac- the district of the final means that report by cess special was not issue in this case. There no is tion of a master. 86 (M.D.Tenn.1980) (“[T]he peril losing right her to be 886, ties at his or

F.Supp. 890 manifestly in practice viewed their to- excludes circumstances must be heard. Such piecemeal.”) may tality, poor unpopular, not seriatim who be counsel, from access unable obtain letter court treated White’s The justice. and denied the motion to reconsider as a that White’s found let- motion. The court beyond any It is doubt now and, is that he articulate ters “indicate every appellant, prisoners, other and indeed appropriate make use of apparently, able to right of access to the courts person has a legal authority.” protected by is the United States Hull, 546, parte 312 U.S. Constitution. Ex II. (1941); 640, 85 L.Ed. 1034 Johnson 61 S.Ct. 483, 747, A. 21 Avery, 393 U.S. 89 S.Ct. v. McDonnell, (1969); 718 v. L.Ed.2d Wolff judge allows a trial majority’s The view 539, 2963, 41 L.Ed.2d 935 418 U.S. 94 S.Ct. litigant out courthouse to toss a (1974). right of extends to the This opportunity to heard. a fair be without rights claims such assertion of civil dismiss White’s claims majority The would McDonnell, su- those made here. v. technicality, allowing without him the on a Wolff clause of Through process the due pra. necessary create the record opportunity to Amendment, exists, the Constitu- the Fourteenth genuine dispute to show that a honor the that the States regard to White’s letters tion commands whether without fact v. genuine dispute of material to the courts. See Ross right create a of access a trial. 41 which warrants 417 94 S.Ct. Moffitt, U.S. encompass- (1974). right This L.Ed.2d plain- holds that majority apparently The form of right to some es both justice may ig- tiff’s efforts to secure needed and the individu- assistance when fit the correct they nored did not right represent himself court. al’s (1) procedural patterns: his letters persona is right appear propria The a formal “answer- court did not constitute in Arizona and elsewhere. established well ing summary judg- memorandum” Hendrix, Frohmiller v. IV, ex rel. See State required by ment motion as Rule Uni- (1942). 184, 124 P.2d 768 Superior form Rules of Practice of the (2) Court; trial he failed to call the right of Although every person has a specifically to the sworn judge’s attention courts, partic- the state has access to the complaint fact in statements of his verified preserve that obligation to ular already in the court’s file. plaintiff here as this one. cases such by the is also unmoved indigence handicapped both plaintiff’s claim that the Director’s interfer- Moreover, his incarceration. plaintiff’s constitutional ence with impor- a claim of “fundamental asserts rendered him access to the courts unable tance,” that his constitutional a claim respond to the defendant’s motion. properly Smith, v. Bounds rights were violated. majority believes that because the 1491, 1498, 97 S.Ct. 430 U.S. comprehensible letters to the plaintiff sent Procunier See also L.Ed.2d capable prosecut- plaintiff is judge, trial Martinez, 416 94 S.Ct. U.S. rights claim with no ing federal civil (1974), part on overruled L.Ed.2d assistance whatever. Abbott, Thornburgh v. grounds a court summar- agree I cannot 104 L.Ed.2d 109 S.Ct. 490 U.S. ily reject the substance (1989) (right access to courts grounds. claims on these claim); rights 1983civil 42 U.S.C. assert a § Beto, U.S. 92 S.Ct. Cruz v. litigant fairly treat a The courts do not claim); (Section (1972) 31 L.Ed.2d litigant they insist that —unaided (Section McDonnell, supra the services of a law- and unable to obtain Wolff claim). obligations also arise The state’s formali- yer negotiate a thicket —

87 corpus proceedings. Supreme suggested, preserving habeas Johnson v. Court has Avery, supra. right a case such access in as this is particularly important. Court has “[T]his right The constitutional of access de- ‘constantly emphasized,’ cor- habeas [that] that litigant mands the courts pus rights and civil are of actions ‘funda- adequate opportunity present “an importance mental our constitutional ... fairly.” Moffitt, claims 417 U.S. Ross v. at they directly protect scheme’ 616, right 94 our S.Ct. at 2447. For this to be vindicated, Smith, rights.” the state most valued must refrain Bounds v. interfering courts, 827, from with access (quoting 430 U.S. at at 97 S.Ct. 1498 discharge must also certain affirmative Avery, Johnson v. 393 U.S. at 89 S.Ct. obligations meaning- to make access that 749). at Smith, supra. ful. Bounds v. Meaningful requires some toler- B. litigants by ance courts unrepre- toward per litigants sented counsel. Pro are plaintiff alleged a number of in- exempt no means from the governing fringements upon right his constitutional procedure. rules But neither should of access to the courts. He claimed that he operate courts allow those rules to as hid- supplied paper sup- and other den, traps lethal for those unversed in law. plies necessary prepare documents may require degree This some of extra despite indigence. alleged He that he part judges care effort on the of trial deprived of access his authorized already long who labor and hard at a mush- “jailhouse lawyer,” indeed that he had rooming caseload.8 But alternative any been denied access to counsel or surro- slams courthouse door the face of fact, gate legal alleged counsel. may who greatest judi- those be in need of attempted that the defendant sabo- relief, cial all for the of ease of sake admin- tage litigation midstream barring istration. This latter is one course which I plaintiff communicating with his our permit believe Constitution does not prison-approved legal assistant. judges and that we as should not tolerate. complained When White first Indeed, it sadly majority ironic interfering prosecu officials were with his procedural judicial holds block barriers of this asked tion for an alterna plaintiffs relief one of the claims is access, the court tive means did not even that defendant denied him the assist questions incorrectly reach these because it plaintiff ance which needed overcome they determined that were not issues in the precisely those barriers. It is in such a Later, case. did address that the should receive the complaints, treating them as a motion judicial protection. most assiduous “[T]he claiming legal process.” “interference judicial recurrent attitude [is] correctly court acted in re special of access to the courts is afforded versing course to address this An issue. protection____ ‘An of unfet inmate’s attempt by pro litigant inartful se tered access to is as the courts fundamen hold____ present rejected a claim cannot be without tal as other All considering or providing the claim a reason rights it____’” illusory of an inmate are without opportunity litigant able for the Sterrett, artic Taylor v. 532 F.2d Leeke, (5th Cir.1976) ulate claim. Gordon v. See (quoting McCray v. Sul livan, (4th Cir.), denied, (5th Cir.), F.2d cert. cert. denied, U.S. U.S. S.Ct. S.Ct. L.Ed.2d 431 (1975)). L.Ed.2d 86 As United States However, type imposing prisoner stringent, of this vast civil without techni- Blaze, rights court, pleading probably requirements. actions are filed in federal cal Presumed Moreover, Application Stringent Pleading not in state courts. the court’s Frivolous: Re- powers summary judgment quirements Litigation, Rights dismissal and en- Civil 31 William 1990). dispose Mary courts (Spring able & of unmeritorious claims L.Rev. 935

88 may prison a

Prison officials burden will never be in constitutional claims heard except to the for er’s of access courts Avery, court.” 393 at Johnson v. U.S. need which cannot be met substantial (quoting district S.Ct. at 750 Regulations alternatives. less burdensome finding upheld). Supreme “In Court unjustifiably and actions which obstruct except the case of are all those who able to legal representa to prisoner’s access help usually few old hands .a themselves— simply are legal tion or assistance invalid. gifted prisoners pris- or exceptionally —the Martinez, supra. In Procunier v. Procu is, effect, oner to denied access nier, Supreme Court struck down a help courts is unless such available.” Id. limiting prisoners’ regulation at S.Ct. at 750. Johnson v. lawyers forbidding and to assistance Avery, the Supreme Court invalidated a paraprofessionals and use of law students prison ban on inmate assistance to other prisoners. to interview in preparing corpus inmates peti- habeas tions. person knowledge- of a The assistance frequently indispensable in the law is able obligation clearly The state’s includes re- meaningful to access to the courts and a fraining obstructing prisoner’s from ac- ability rely per- to on such a therefore cess to The state is assistance. presenting son a claim is for assistance always obligated lawyer at part constitutional access. expense prosecute rights state a civil correctly notes that access to brought by action such as the one provided courts either ade- However, appellant here. some form of adequate quate or law libraries assistance adequate assistance to enable the persons (Maj. op. trained the law. prisoner meaningful opportuni- to obtain a 809). However, library at 804 P.2d at ty library, law be heard in court—a satisfy will not the constitutional mandate knowledgeable prisoners, or fellow law- case, in every and the United States Su- indigent yers in- be available —must preme Court has so stated. obligations satisfy mates to the state’s un- Although prisoners’ access mate der our federal constitution. ultimate might in some cases them to rials allow prisoner of proving burden has claims, Smith, pursue their Bounds v. adequate the courts rests access to with prisoner needs more often the of a prima prisoner the state once makes a “jailhouse lawyer, paralegal, or a law access. showing of lack of Rich v. facie

yer.” Supreme The United States Court Cir.1981); (1st Zitnay, 644 F.2d Car- “Where an inmate has declared: illiterate (1st Cir.1986). Fair, ter v. 786 F.2d 433 involved, complexity or ... whether the genuinely disputed There is issue unlikely makes it the issue the state as to whether has ob- present able to inmate will be collect structed the access as- necessary adequate the evidence an that his sistance. White has stated comprehension of the he should be legal assistant prison-approved inmate, aid of a fellow or if free to seek the maliciously and that his terminated forbidden, have adequate that is substi ignored. quests aid were He substitute McDonnell, 418 U.S. tute aid ...” Wolff v. alleges also the defendant interfered at Many prisoners 94 S.Ct. at 2982. relationship his educated, assistant illiterate, limited poorly are or of attempt sabotage placed this case and read, speak, capacity, or intellectual punish him in him for isolated detention language write well in another such If letters prosecuting this case. Spanish.9 practical purposes, all “[F]or cannot, can those of his fellow inmates be con- prisoners have assistance such evidence, lawyer,’ sidered as then White has ‘jailhouse possibly their valid Miss.1975), adopted, “[R]eading opinion commonly in a F.2d materials found aff'd tediously reading, denied, library (5th Cir.), law make difficult U.S. cert. college generally college graduate on a level.” S.Ct. 50 L.Ed.2d 315 Reed, (N.D. F.Supp. Stevenson v. *13 is, prima “jailhouse lawyer” claim of denial of presented a to the courts. The fade implies, of access to the a for a his constitutional as the name substitute precludes summary judgment. lawyer. Surely approve courts which we could not prison’s forbidding no reason action apparently accepted his law- prisoner’s communications with evidence, for it addressed the letters as yer. may placed upon not “Restrictions be Moreover, on its merits. White’s claim attorney-client relationship which effec- objected considering Director never prisoner’s tively diminish a access to the letters as evidence connection with the Sterrett, Taylor courts.” v. 532 F.2d fact, summary judgment. In motion for (5th Cir.1976). the Director asked a court received requiring White to send the Director order There is no less of a burden and no less copies letters taking of all addressed to the court of a constitutional violation Director so that the could to them. regard surrogate same action with coun- “Logic sel. that if inmate mutual demands majority dismisses the on evidence required, constitutionally assistance is First, grounds. says prisoner it that a two state, harass, through agents, may its partic- entitled to the is not assistance of a intimidate, or otherwise interfere with legal ular assistant. a more White claims pro- those inmates who have undertaken to this, deprivation than serious however: he legal vide assistance to other inmates.” states that the defendant interfered with Trotter, Vaughn F.Supp. v. at 892-93. any his access to assistance. This claim ignored majority opinion below. The cases on which the relies Depart- of this court states that the readily distinguishable. for its decision are alleges appeal ment for the first time on Spellman, In v. 654 F.2d 1349 Storseth that it made other assistance available to (9th Cir.1981), approve the court did not (Maj. op. 810). White. at 804 P.2d at cutting prison- the action taken off a here— course, Of such a bare contention fails both legal er’s access to his chosen assistant because it is not evidence and it Storseth, the middle of a lawsuit. In appeal. Lujan comes too late on See appointed district court counsel for the MacMurtrie, 383 P.2d 187 prisoner, prisoner using insisted on (1963)(mere allegations cannot create fact lawyer. holding jailhouse The court’s issue); Dillon-Malik, Wactor, Inc. v. prisoner was not that a can be cut off Ariz. (App.1986) (appel- P.2d 671 lawyer jailhouse and left without a sub- late court arguments will not consider new stitute, but that trained counsel was appeal). available and satisfied the constitutional requirements. 654 F.2d at 1353. Even agree Nor can I may deny that the state holding suspect, limited prisoner’s access to the however. legitimately chosen Martinez, (invali- supra Procunier v. prison-approved source of assist- theory dating prison ance on the ban on inmate communication might that he obtain paralegals elsewhere. with law students and might agree While I even prison though represented by as an initial matter may inmates were law- authorities obligated prisoner yers). to allow a him, choose inmate he wishes to assist Henman, Nor does 807 F.2d Gometz prison permit once prisoner officials (7th Cir.1986), support notion choose, they may negate that choice prison prison- officials interfere with a justification. Apparently, without the De- relationship with his assistant er’s partment approved allowed or White’s during against pris- pending lawsuit choice of as his assistant and then Conn pending no lawsuit was on. ability interfered with their to communi- plaintiff, prison prevented when the cate. jailhouse lawyer, and another inmate from prisoner To corresponding. importantly, pris- forbid the from contact with More demonstrable, “jailhouse lawyer” his chosen interferes on had a substantial reason preventing with the assistance essential to access communication between (W.D.N.Y.1971) (aid barred to prisoners. The two mem- these two gang,” Aryan grade fifth read- prison of a “violent inmates tested above bers who level). prisoners The two had con- ing comprehension Brotherhood. The courts also spired together murder and had fact regard papers letters— such White’s guard. at 114. murdered or no citations—as which contain few that, Moreover, noted in contrast capacity the court failing adequate to demonstrate here, prisoner had claim to White’s litigate propria persona. E.g., Taylor *14 in lawyers. Finally, jailhouse access to other List, v. 880 F.2d at brought by the client claim was majority’s in reason- The second flaw the jailhouse lawyer, prisoner, but ing plaintiff’s letters did is that questioned. 807 standing whose the court or in- any special competence demonstrate F.2d at 115. telligence. my opinion, In the letters failed holding is one The essential Gometz plaintiff one of the “few to show that merely implicated here. Gometz lawyering] excep- jailhouse old hands [at may that the state rea- principle flects the tionally gifted prisoners” capable of fend- prisoner’s sonably regulate the access to complex legal sys- ing for themselves in a prison security. maintain legal assistance to 393 U.S. at Avery, tem. v. Johnson However, the state lacks a substan- contrary, 750. On the the letters S.Ct. at tial, demonstrable reason to burden the and in the in their content reflect—both access, right of or when less prisoner’s by plain- explicit made in them statements may pro- means be available burdensome plaintiff proceed tiff—that was unable interests, prison reg- then a tect the state’s very The effectively without assistance. ulation which burdens access to the courts plaintiff letters to the fact that the wrote List, 880 F.2d Taylor is invalid. v. See filing required answer- judge instead of (9th Cir.1989); Sterrett, Taylor v. su- illustrates ing memorandum with the clerk Werner, (3rd pra; Bryan v. 516 F.2d 233 proceed in plaintiff unable to that the Cir.1975). proper manner without assistance. by majori- The second reason offered ignores plaintiff’s majority also in- ty ignoring the defendant’s acts of placed in isolated deten- claim that he was plaintiff’s letters to terference is that the prosecuting this punishment tion as thereby comprehensible the court were impair capacity prose- or to lawsuit ability to act as his own demonstrated his may not simply case. The state cute the in this case. There are two flaws counsel right completely deprive prisoner of his reasoning. in this by placing him in access to the courts Bensinger, First, lucid letters is isolation. Knell v. ability to write Cir.1973). understanding very different from an nothing prison silence an means can ability to marshall evidence the law and an remote, placing solitary him in inmate example, For few support of a claim. pleas justice. where he can make no might gifted letter- cell be businessmen—who or one may the state harass an inmate capable Nor think themselves writers —would legal assistance to him order wholly providing prosecuting complex lawsuit punish or deter exercise courts intimated unaided. Nor have the Skinner, F.2d v. ability access. Christman letter-writing demonstrates the (2d Cir.1972) (prisoner); Vaughn lawyer. The cases to act as one’s own Trotter, supra (jailhouse lawyer). While extensive majority cited involve may fully prison officials have been by the liti- pleadings prepared and briefs punitive deten- placing (See justified P.2d at gant. maj. op. at forbidding perhaps in communica- 810). hand, have tion and the courts On the other Conn, this fact White and regulations forbid fel- tion between voided proved. must be cannot be assumed and inmates with dem- low inmate assistance to as an uncon- ex This has not been established literacy. E.g., States onstrated United plaintiff’s claims of Mancusi, F.Supp. fact. The troverted rel. Stevenson judgment. Supreme unconstitutional interference and retalia- The Arizona Court summarily tion be rejected. should not has that the failure noted “does granting not in itself make the ”

C. ‘appropriate.’ apparently also concludes Contracting Northern Co. v. Allis-Chal summarily claims Corp., mers rejected he did a formal (1977). Accord, not file State ex rel. Corbin v. answering to the defendant’s Sabel, memorandum Ariz. (App. 674 P.2d 316 It is true that summary judgment motion. 1983). fact, already spe this court has did not file such a that, cifically Eule held view of Eule points and a serialized and authorities IV allow a grant does not court to summa contemplated by statement of facts ry judgment simply for failure to file a IV(a), (f), rules. Eule Uniform Eules response. Choisser ex v. State rel. Her *15 Superior of Practice of the Court. man, (1970). Ariz.App. 493 469 P.2d Surety also Schuldes v. National true, however, equally It is Corp., Ariz.App. 557 P.2d 543 repeatedly responded to the defendant’s (1976) (although response a written is re question by motion letters. The there- is IV, quired Eule by facts uncontested summary judgment may fore not whether in the evidenced motion be taken as must be entered on the based absence of true, must court still deter response, summary judgment but whether mine whether the movant is entitled to is warranted form the deficiencies in the law). judgment as a matter of of response. summarily adjudicate To the merits of a authority cited actively seeking claim when claimant is summary adjudication support does not litigate also offends notions of funda- IV(b), such disposition a this case. Eule mental fairness. Technical violations of Uniform Superior Eules of Practice of the procedural subject rules are to lesser general Court is a rule application all sanctions. Dismissal as a sanction to be motions, just judg- civil great with exercised caution. Nesmith v. ment provides motions. The rule fail- Court, Superior 164 Ariz. 790 P.2d 768 ure required answering to “file the memo- (App.1990). Summary of an en- dismissal randum” in response “may to a motion tire claim on its merits is drastic sanc- a deemed a granting consent to the ... it tion—indeed is the sanction— ultimate motion, may dispose only and is reserved willful sub- summarily.” This rule address- complete stantial or a failure to abuses es complete failure to to a prosecute the case. As the United States motion, however, and not the situation Supreme overturning noted in Court a dis- responding document fails missal 37 discovery enforced a Eule comply requirements with as to form and sanction: are constitutional limita- “[TJhere simply content. The rule thus does courts, power upon tions even in aid apply to this does not authorize processes, of their valid own to dismiss an entry summary judgment. affording party oppor- action without Even if the non- applicable rule were tunity hearing on the merits of his complying documents, however, would it Rogers, cause.” v. Societe Internationale authorize judgment. Eule 197, 209, 1087, 1094, U.S. S.Ct. of the Arizona Eules of Civil Procedure L.Ed.2d 1255 governs summary judgment procedure. supreme Our court has stated: As this explained Bank United supra, entering Arizona v. its Allyn, Prior to dismissal or a default Eule 56 terms permit judgment, does not the entry of summa- fundamental fairness should ry judgment require of a district based the absence court to enter order hearing, to the motion if fails cause and the motion show hold a necessary, to demonstrate the movant’s entitlement to deemed to determine whether attorneys litigants assessment of costs and acting fees as to those with benefit attorney’s or even an citation for con- of counsel:

tempt just more would be a and effective Implicit self-representa- in the sanction. obligation part tion is an on the court to make reasonable allowances to Equipment Massey-Fergu- AG Rancho v. protect son, Inc., pro litigants se from inadvertent 123 Ariz. (1979) (quoting important rights forfeiture of because of Edgar Slaughter, v. Cir.1977). their legal training. lack of 548 F.2d While exempt party ‘does not from com- repeatedly As has been held in other pliance procedural relevant rules contexts, summary adjudication based on law,’ and substantive ... it should not be procedural contrary defects is to Arizona’s impaired by application harsh of techni- longstanding public favoring resolu- policy cal rules. disputes tion of on their merits. Walker (1971); Kendig, 107 Ariz. 489 P.2d 849 Traguth Zuck, (2d Cir. Walker, 142 Ariz. 1983) (citation omitted). U-Totem Store v. (App.1984). 691 P.2d 315 Arizona pro per litigant If the comply fails to permit procedural courts also refuse to procedural despite rules the availabili- becoming

rules from a “shield for serious assistance, ty adequate legal or in the Kadota, inequity.” Hosogai v. knowledge comply face of clear how *16 1327, (1985). 1331 rules, these him treat principles Both of these of Arizona her party basic as it would treat jurisprudence expression found requires Gorman violation of the rules. The law Phoenix, 179, City courts, v. 152 Ariz. 731 P.2d only a by reasonable tolerance (1987). Gorman, 74 faith, acceptance apparent and not of bad had been dismissed for her fail- counsel’s diligence lack of or wholesale violations rule, comply ure to with the “fast track” despite availability of assistance. None V(e), Rule Uniform Rules of Practice of appear of these circumstances on the Superior superior Court. The court denied record in this case. plaintiff's pursuant to Rule majority holds the to the 60(c),Ariz.R.Civ.P., for relief from the dis- lawyer. same standard as a trained Yet supreme missal. Our court’s observations protective ordinarily pro the courts are of a V(e) application about the to dis- of Rule heard, prisoner’s right tolerating se to be application miss suggest that case that the procedural guiding minor breaches and IV(b) judg- support summary Rule litigant through procedural the thicket of ment in improper: this case would be pro per prison rules. It is settled that a Uniform Rule used Y ... should be pleadings er’s as White’s letters to —such trap momentarily the unwary or the the court—should be held to a much less negligent. The Rule purpose of Uniform stringent E.g., standard than counsel’s. V(e) procedural, substantive; is Cir.1987), Shimoda, (9th 832 119 Akao v. F.2d merely rule is ‘a administra- convenient denied, rt. U.S. S.Ct. ce V(e) practice’ tive Rule ... Uniform (1988). rule, 99 L.Ed.2d 511 This should not be used to a case win applied interpretation pris often avoiding merits, trial on the unless the complaints, gen oners’ extends “to form a fact, being prosecuted is not pro litigant eral standard. Once a se has vigorously____ weap- not a is [The rule] everything possible bring done his ac deny on to used to be relief to those who tion, penalized by he should not be strict seeking pursuing are their claims and might apply rules which otherwise day their in court. represented by counsel.” Ortiz v. 152 Ariz. at 731 P.2d at 78. Cornetta, (2d Cir.1989). 867 F.2d State, preference

This Ariz. adjudicating on the See also Brown v. (1978); State, applies merits rather than on technicalities P.2d 876 Goodman v. (1964) (courts pro per with at least as much force to Ariz. 393 P.2d 148 look substance, form, pro dealing summary judgment procedure will treat per petition for corpus special habeas inappropriate unrepresented where petition). action prisoners uninformed are involved.” Mad- A yun Thompson, v. 657 F.2d at 877. leniency pro pris- The rule of toward se insig- complaint review of the verified is an litigants many applied oner has been times nificant burden. The loss of a claim on the in the context of a defendant offi- is, contrast, very significant merits summary judgment cial’s motion for supreme event against prisoner. indeed. As our court has The result in those quite hardly any preju- observed: “There cases has been different can majority very greater complete reached here. At the dice than the loss of a least, litigant is entitled to be warned Jepson New, cause of action.” v. he is confronted 792 P.2d 728 motion, he must obtain counter- reasons, For I these would reverse the evidentiary or other affidavits material to judgment court and remand entry judgment against avoid the him. proceedings. for further I therefore re- Garrison, Roseboro v. 528 F.2d 309 spectfully dissent. Cir.1975); Madyun Thompson, 657 F.2d (7th Cir.1981); Hardy, Hudson v. (D.C.Cir.1968). Despite

F.2d 1091 the salu-

tary effect of summary judgment in elimi- nating claims, insubstantial overriding “an 804 P.2d 822 interest must be parties, fairness to the MILLAR, Plaintiff/Appellee, Bruce E. especially important where constitutional

rights are asserted.” Twomey, La Batt v. (7th Cir.1975).10 FARM STATE FIRE AND CASUALTY COMPANY, Defendant/Appellant. also believes that White’s *17 complaint verified sworn document —a No. CA-CV 90-0063. 56(c) which Rule expressly contemplates Arizona, Appeals Court of will be considered connection with a 2, Department Division B. summary judgment motion—need not be brought considered because it was not Sept. 1990.

the attention of judge the trial in connec- Review Granted in Part and Denied in summary judgment tion with the motion. Part Feb. 1991. position This directly conflicts with the longstanding judicial ignorance tolerance of

of the rules and minor rule infractions

pro per litigants.11 rigor “Technical

10. The only courts also decline to expected enter 11. Not should the standard judgment against pro prisoner merely se be applied litigant, pro per counsel not be to the sworn, cause his assertions of fact are reviewing but the burden' of the record on a Batt, supra, notarized form. In La summary judgment longer motion for is no considered an unverified to the sum obligation onerous that it was when Mast v. mary judgment containing factual asser Cal., Standard Oil Co. prisoner tions and a statement (1984) Subsequent changes was decided. stringent unable to obtain affidavits because of nearly every the local rules of Arizona security prison. at the 513 F.2d at preclude filing discovery the routine prisoner’s court also considered the complaint, verified papers interrogatory depo- such as answers and though presented even it was not 2.14, transcripts. Eg., sition Rule Local Rules summary judgment papers. with the Id. at Courts, Superior Maricopa Practice adopted approach n. 10. The court a similar County. Ordinarily, record which the Meier, McLain v. Cir. judge trial must "search” in connection with the 1979). requirements ”[T]he summary judgment consists of the verified com- fairly applied rule not be ‘with answer, plaint any, any pa- and verified prisoner unrepresented by strict literalness’ to a pers filed in connection with the motion itself. subject handicaps counsel and deten ... necessarily imposes upon litigant.” tion Hud Hardy, son v. 412 F.2d at 1094. notes at 804 P.2d at White did not receive the full 807), sanitary supplies. supplies example, did White receive some to which was he entitled. For However, department’s soap affidavit of the own White would a razor no to receive but Moreover, correctional services officer reveals that White shave with. the officer’s affidavit during dispute supplies did not receive free the entire failed to his White’s claim that account list, period indigency supposedly he and that was debited for these ’’free" items. court, stating of that again that counsel was aware Conn wrote the “defendant’s promised court either he denied the fact.” White asked that the had been White, any why denied reason require proof legitimate been visit to but had “a his detention. Conn permitted access to White since Conn not be to assist should [me] had prison officials for- appoint also claimed that counsel for with this case” or legal assistant him to act as White’s bidden White.4 wrote to court White later all communi- they had “bared again complained and that officials [sic] that that us.” asserted cation between Conn copying still denied access to a machine punish pretext to lockup was a White’s though he even was then classified as to bringing this action or “sabo- White indigent. ability prosecute the case. tage” White’s extending responded by again The court claimed that the actions specifically Conn time to White’s placing Department’s employees importantly, motion. More rescinding Conn’s au- lockup inWhite rejected also claim that White’s were “an ob- thorization to assist White necessary legal had been denied assistance. to the courts.” struction White’s that no to a The court held White had Conn, According prison officials had al- particular legal assistant and that “Defen- group from a to choose Conn lowed White Plaintiff with a dant’s decision legal of authorized assistants.3 legal different assistant” did violate had wrote to the after rights. He told the released from detention. been did ad- court’s order requests several court that he had “made had been de- dress White’s claim that he appointed to legal assist have assistant assistant, legal nied me,” ig- requests had been indeed assumed that inability re- professed nored. White provided had White with anoth- Corrections summary judgment motion spond to the er assistant. “a aid of assistant who without court, stating again wrote doing he is law.” knows what pursue- any help in “I am still without letter as The court treated White’s added). (Emphasis matter.” ing this [sic] claiming interference “motion hearing requested telephonic “a the Director to process,” and ordered required held where the Warden can be extended the time spond. court also I assist- explain how obtain the motion sum- for White’s ance in this case.” mary judgment. apparent from the For reasons not responded to White’s The Director then record, letter, September dated claiming “motion interference not filed with the court until had process,” explaining been 12,1988, October 1988. On October placed in Conn detention because summary judgment superior court entered clerk. The an inmate law intimidated in favor of the Director. that White’s contended Director further court, asking it to White wrote either discovery requests demonstrated