Full opinion text
TABLE OF CONTENTS Description Page Number I.Background...................................................... .... 262 II.The Issue........................................................ .... 262 III. Procedures Used to Compile a Record Upon Which to Determine the Meaningfulness of Inmate Access to the Courts................. .... 263 IV. Proofs Submitted by the Parties and Court-Appointed Experts..... .... 265 V.Findings of Fact................................................. .... 283 VI.The Law ........................................................ .... 286 VII.Conclusions of Law.............................................. VIII.Remedy ......................................................... .... 291 .... 293 IX.Conclusion....................................................... .... 298 MEMORANDUM OPINION AND ORDER FEIKENS, District Judge. This is an action brought by a class of inmates against officials responsible for the administration of a portion of the state prison facility located in Jackson, Michigan known as the State Prison of Southern Michigan’s Central Complex (hereinafter “Central Complex” or “SPSM-CC”). Plaintiff class consists of all inmates who are now or who in the future will be housed in the Central Complex. At the time of the trial, the Central Complex population had approximately 2,400 inmates. The transient population is nearly 10,000 persons each year. There are ten original defendants in this ease. They are sued individually and in their official capacities: Perry M. Johnson, Director of the Michigan Department of Corrections (now Robert Brown); Robert Brown, Deputy Director for the Bureau of Correctional Facilities (now Daniel Bolden); Graham Allen, Food Service Supervisor; Dale Foltz, Regional Administrator and Warden (now John Jabe); Elton Scott, Deputy Warden; Pam Withroow, Deputy Warden; Frank Elo, Deputy Warden for Security; John Jabe, Business Manager; Charles Utess, Classification Director; Marjorie Van Ochten, Hearings Administrator; and John Prelesnik, Superintendent of the Reception and Guidance Center. I. BACKGROUND On September 18, 1980, the complaint in Everett Hadix v. Perry Johnson (hereinafter known as “Hadix”) was filed. The complaint raised numerous questions regarding inmates at the State Prison for Southern Michigan (hereinafter “SPSM”), their rights, conditions of confinement, and general aspects of prison life. Class certification was granted on August 28, 1981. Ten cases, filed between 1979 and 1985, raised similar issues and were consolidated with Hadix. Numerous proceedings were undertaken following class certification. As the issues were sharpened, negotiation and settlement became a goal. Several conferences between the parties were held and, on February 13, 1985, a comprehensive consent judgment was entered and filed. The consent judgment deals with issues of sanitation; health care; fire safety; overcrowding and protection of inmates from harm; use of volunteers; access to the courts; food service; management (the ordering of a study to provide recommendations regarding organization, staffing and administration at the Central Complex); inmate legal mail; and compliance and inspection procedures. An integral part of the settlement is the break-up of one vast prison complex into five autonomous units. By stipulation of the parties, a basic issue as to what constitutes compliance by defendants with the United States Constitution in providing meaningful access to the courts for inmates bringing civil actions was reserved for decision. Another issue not resolved in the consent judgment relates to the classification of inmates. This issue was referred by stipulation for resolution in a matter pending in United States District Court for the Western District of Michigan, United States v. State of Michigan, Civil Action No. G8463CA. The issue of inmate access to the courts in Hadix has been refined as the case progressed. Plaintiffs’ complaint alleged inadequate access to the courts as a civil rights violation based on Section 1983. The consent judgment (of February, 1985), which reserved the issue for my determination, nevertheless settled related subjects such as library hours, facilities, and book collection; establishment of satellite libraries in certain segregated cell blocks; and inmate paralegal training. II. THE ISSUE The central issue raised by the complaint and answer (as preserved for my determination under the consent judgment) is this: whether, and to what extent, the defendants are constitutionally required to provide access to the courts for inmates in the Central Complex through the provision of additional attorneys, paralegals (civilian or inmate), and other means to assist inmates with civil actions (including habeas corpus proceedings) and related matters (i.e., grievances). Plaintiff class asserts that mere access to the law library system cannot provide meaningful access to the courts for inmates. The class argues that functionally illiterate inmates, indigent inmates, and those inmates housed in segregated cell blocks, do not have meaningful assistance in preparing civil matters for the courts merely through the state’s furnishing a law library. The class also contends that the non-library resources available to Central Complex inmates (i.e., jailhouse lawyers and Prison Legal Services) áre too unreliable to provide meaningful access to the courts for functionally illiterate, indigent, or segregated inmates who seek to bring civil actions. Relying upon Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), reh’d following remand, Smith v. Bounds, 610 F.Supp. 597 (E.D.N.C.1985) (legal assistance by attorneys is required to provide meaningful access to North Carolina inmates), reconsideration den’d., 657 F.Supp. 1322 (E.D.N.C.1985), second order entered 657 F.Supp. 1327 (E.D.N.C.1986), aff'd. 813 F.2d 1299 (4th Cir.1987), aff'd. on rehearing en banc 841 F.2d 77 (4th Cir. 1988) (no reconsideration of district court judgment necessary), and related cases, defendants assert that their duty to assist Central Complex inmates in the preparation of civil cases, in such a manner as to provide meaningful access to the courts, is met through the furnishing of a law library system containing a minimally sufficient collection of legal texts. They argue that the availability of any non-library resources is an enhancement of the library system. III. PROCEDURES USED TO COMPILE A RECORD UPON WHICH TO DETERMINE THE MEANINGFULNESS OF INMATE ACCESS TO THE COURTS Evidence on the access issue was submitted at a trial beginning May 31, 1985. Plaintiff class, represented by a group of inmates from the Central Complex, was adjudicated to be indigent prior to the trial. Appointed attorneys presented plaintiffs’ case and have continued in the role of counsel. The presentation of proofs commenced on June 3, 1985 and continued intermittently thereafter. Ten inmates testified on behalf of plaintiff class: Koster, Moore, Valeroso, Ramsey, Thornton, Martin, Ford, Beaudin, Douglas, and Moncure. Plaintiffs also presented the testimony of James Wilbur and Sandra Girard, past and present directors of Prison Legal Services; James Neuhard, Director of the Michigan State Appellate Defender’s Office; John Prelesnik, Superintendent of the Reception and Guidance Center; Norman Lefstein, Professor of Law at the University of North Carolina School of Law (stipulated expert on delivery systems for incarcerated persons — specializing in legal professional ethics); and Lonnie McIntyre, Associate Professor of Education at Michigan State University (stipulated expert in reading ability). Plaintiffs’ witness, John Prelesnik, Superintendent of the Reception and Guidance Center (intake unit), administers the placement test given to inmates. This test is the “standard achievement test, Form A,” which measures reading and math skills. (Prelesnik, 6/4/85 pp. 155-156) The testing results are used to determine the educational level inmates have and what remedial education, if any, inmates should receive. The levels range from non-readers (below 'the fourth grade) to above the twelfth grade (college level). Plaintiffs’ witness, Dr. Lonnie McIntyre, is an Associate Professor of Education at Michigan State University. McIntyre has taught in public schools in Illinois and Michigan. As an expert witness for plaintiffs, McIntyre administered readability tests to inmates’ writing samples. The samples were randomly selected. He also determined the readability of legal materials to which an inmate might refer in preparing a case for submission to the judicial system. The readability test as administered by McIntyre determines the difficulty of comprehension of written passages. McIntyre’s readability test is actually comprised of four separate tests: the Gunning, the FRYE, the Rader, and the Fleshe. (McIntyre, 6/11/85 p. 398.) Defendants are represented by assistant state attorneys general on behalf of the Michigan Department of Corrections. Defendants’ presentation of testimony and documentary exhibits began June 16, 1986. Various Central Complex staff persons and Department of Corrections officials testified: Daniel Purple, SPSM Assistant Business Manager; Graydon Brown III, SPSM Mail Supervisor; Gerry Kunzelman, SPSM-CC Personal Affairs Officer; Herbert Grinage, SPSM-CC Assistant Deputy Warden for Housing; Lloyd Baker, SPSMCC Grievance Coordinator; Paul Wreford, JCC Director of Prison Programs; Linda Hehl, Information Desk Sergeant; Stanley Januszka, 5 Block Assistant Resident Unit Manager; Chester Bristow, SPSM Fire Safety Officer; Melody Wallace, MDOC Litigation Coordinator; Arthur Barber, SPSM Sergeant; Lucinda Boyd, SPSM-CC Director of Library Services; James Thornton (adverse), inmate; Kenneth Limberg, SPSM-CC Academic School Principal; Clayton Birch, Legislative Corrections Ombudsman; Susan Herman, former MDOC Assistant for Prisoner Affairs; Frank Elo, SPSM Assistant Deputy Warden for Custody; Carl Little, SPSM-CC Grievance Coordinator; and Marjorie Van Ochten, MDOC Hearings Administrator. Having heard testimony and read documentary evidence regarding the degree of meaningful access to the courts provided inmates at the Central Complex, I concluded that the parties were in basic disagreement as to what content an inmate’s complaint required in order to present a legal question for which meaningful access to the courts had to be provided. The issue as to meaningful access to the courts is many sided. Usually, complaints by inmates, particularly in initial stages, are grievances regarding conditions of confinement. Many of these concerns raise no legal issues as that term is commonly understood. Yet, testimony clearly revealed that grievances, depending upon their nature and content, could and did result in legal questions if not resolved. It became apparent that a study of the grievance procedures used at Central Complex was vital to a resolution of the issue of meaningful access to the courts. At the same time, the existence and use of resources for the presentation of traditional legal issues had to be studied. Accordingly, on June 23, 1986, I appointed two University of Michigan professors as experts: Charles Wolfson of the School of Social Work to study grievance procedures at the Central Complex and make recommendations and proposals, if any, for their reform; and Jerold Israel of the School of Law to study existing legal structures at the Central Complex and make recommendations and proposals, if any, for their reform. These experts submitted written reports representing their joint findings in compliance with Rule 706 of the Federal Rules of Evidence. The reports were received as evidence. The experts were examined by each of the parties as to their work and their opinions. Professor Jerold Israel, B.B.A., L.LB., the Alene and Allan F. Smith Professor of Law, prepared a study entitled “Report on the Extent of Inmate Legal Problems and Resources Available and Needed to Provide Meaningful Access to the Courts,” (hereinafter “Israel”). Professor Charles Wolf-son, M.S.W., of the School of Social Work, prepared a report entitled “A Study of the Grievance System at the Central Complex and Reception and Guidance Center, State Prison of Southern Michigan,” (hereinafter “Wolfson”). Both professors have extensive practical experience in dealing with inmates’ rights issues and have published a number of related materials. Although the reports were separately prepared, Professors Israel and Wolfson concur in their conclusions. On June 30, 1986, plaintiffs presented rebuttal witnesses and concluded their proofs. The parties presented additional proofs on November 17, 19, and 24, 1987 before agreeing to submit written closing arguments and proposed findings of fact and conclusions of law. That process is now completed and I now make my findings and conclusions as to the meaningfulness of Central Complex inmates’ access to the courts. IV. PROOFS SUBMITTED BY THE PARTIES AND COURT-APPOINTED EXPERTS A. Plaintiffs’ Proofs Herein are the contentions of plaintiff class: Proofs presented by plaintiffs addressed the legal assistance available to Central Complex inmates from any source. The library system was explained. Additional resources in the form of assistance from agencies or individuals were examined. The ability of certain inmates to make sufficient use of the forms of legal assistance available in the Central Complex was evaluated in light of the inmates’ ability to comprehend written or spoken English, ability to pay for legal help, and ability, if segregated, to gain access to persons providing the aid. 1. Description of the Central Complex The Central Complex consists of cell blocks denominated 4, 5, 6, 7, 8, 11, and 12 and the old infirmary building. Most of these facilities are used to house inmates segregated for various reasons. Cell block 4 is maximum security housing. Cell block 5 is divided into east and west divisions. Cell block 5 east houses inmates classified to punitive segregation, while cell block 5 west is used to house those in administrative segregation. Cell block 6 houses inmates classified to protective segregation. Cell block 7 serves as the Reception and Guidance Center (hereinafter “R & GC”). R & GC functions as an intake facility in which newly-arrived inmates are housed for the first weeks of incarceration. The old infirmary building also houses inmates classified to protective custody. An inmate who is indigent, functionally illiterate, or for whom English is a second language may be housed in any cell block of the Central Complex, including the segregated units. One’s status for purposes of placement in a cell block is not determined by ability or lack of ability to make use of available legal resource materials. 2. Description of Legal Assistance Resources There presently exist several sources of legal assistance for Central Complex inmates. For example, Prison Legal Services, jailhouse lawyers, and complaint forms provided for pro se petitioners are offered as supplements to the legal texts contained in the library system. However, the Central Complex procedure relies primarily upon the provision of written sources of legal material for its entire inmate population regardless of housing situations. Other, non-library forms of assistance are not uniformly available for all inmates or for many types of civil actions an inmate might seek to initiate. a. Libraries The Central Complex furnishes a main library and several “satellite libraries.” A library is also being furnished for inmates in maximum security custody (block 4). The satellite libraries are intended to assist inmates in segregated blocks who cannot use the main library because of special confinement. The main law library is physically limited. The location of the facility is such that temperature control and adequate ventilation are not achievable. Only sixty-four inmates can be accommodated at one time. The heat, ventilation, and crowding problems are especially acute during popular use times such as Wednesdays and weekends. Prison work schedules effectively prevent spreading the use burden to other times during the week. No group work areas are available apart from the library itself. As a result, the library must serve many functions. Inmates talk among themselves in the same room while others do research. Inmates in and around the library are permitted to play radios, to converse, and to engage in behavior which interferes with the ability of this facility to serve its function as a place of study and research. As required by the consent judgment, the library is open fifty-six hours per week for inmate use. The library hours are varied according to the day of the week, but at least half of the scheduled times are in the evening or on weekends. General population inmates in cell blocks 8, 11, and 12 (approximately 1,000 inmates) are allowed access during these hours. Inmates receive “details” to go to the library for three periods of two hours each per week. More time can be requested if an inmate submits written evidence of a need to do additional research on his own case. (The head librarian makes the determination to grant more time although she is not trained in legal research.) The system does not readily accommodate matching assigned library times so that two inmates may work together. Generally, an inmate’s request for a library detail requires one week to process. Not all detail requests receive responses. Inmates who are allowed to use the law library during the final two-hour period of a day are somewhat restricted in that books must be returned fifteen minutes before closing time. The library resources do exceed the minimum collection specified in Appendix B of the consent judgment (Plaintiffs’ exhibit 12) and are consistent with recommendations made by professional associations for contents of prison libraries. However, the system by which inmates use the materials, the condition of the materials, and number of inmates seeking to use the materials make the use of the collection most difficult. The Central Complex library is managed by a head librarian and her assistant. This head librarian supervises the librarians of the North and South Complexes as well. While she holds a master’s degree in library science from the University of Michigan and has had experience in library work, neither the head librarian nor her assistant is trained to provide meaningful help in doing legal research. There is no evidence that either the head librarian or her assistant attempt to furnish inmates advice regarding legal research. The library employs five or six inmates as library aides. These aides are not required to have training in legal research. The basic job qualification is an expressed interest in working at the library. The usual tenure of an inmate aide is one to eight months. (Boyd 6/24/86 pp. 94-100; 6/27/86 p. 21) The work schedule for the aides is thirty to thirty-seven hours per week. Not all of the aides are at work in any one shift. Of the aides on duty, two are generally available to service inmate requests. Other aides on duty perform various clerical functions and miscellaneous tasks such as the segregated cell block check-out delivery runs. Only one aide is scheduled to work the evening shift, although at least one other aide is usually in the facility. This limited number of inmate aides must locate materials for the inmates as the library is not set up as an open stack facility. When the library aides are busy, book requests may take significant time to fill. Testimony reveals delays of hours or the necessity of multiple trips to the window in order to fill one legal resource request. (Martin, 6/30/86 pp. 14-15) Some inmates experience difficulties in obtaining service at all. (Valeroso, 6/12/86 p. 45) Inmates are often unable to obtain books because an exact title is unknown and the aides are not able to determine which volume is wanted from the information the inmate provides, or the inmate is unable to communicate in English. (See Valeroso, 6/12/86 pp. 45-49 (no non-English law books); Martin, 6/30/86 pp. 13-15; and Boyd 6/24/86 p. 98) An inmate may use only three to five volumes in the library collection at any one time. Each volume of a set is counted for this limit including multi-volume service materials. (Shepard’s is generally exempt from the three-volume rule.) In most instances, only one copy or set of a particular legal resource is available for all inmates. Limited numbers of frequently used materials such as the rules of procedure and statutes are provided. The library cannot guarantee a ready copy of fundamental legal materials at any one time. Volumes from the main library are not always available as inmates in segregated blocks may “check out” materials. Books may be out of the main library for more than twenty-four hours due to this program. Although the consent judgment provides for maintaining and updating library materials through the purchase of replacements and pocket parts, the collection cannot be termed complete at any one time because the library cannot keep pace by furnishing replacements for missing or unusable items. The librarian stated a reluctance to immediately replace missing volumes once their absence is discovered. She said she prefers to wait to determine if the missing books will eventually be returned. Of the volumes actually available, several are partially or completely mutilated. Many books have sections torn out. No systematic inventory procedure exists to monitor the condition of the collection on a consistent and timely basis. The process by which damaged volumes or volumes missing pages are repaired is time-consuming. The librarian requests a complete text from another complex. A copy of the required materials is made. This copy is then glued into the Central Complex book. The procedure takes from two to three weeks to complete. Typically, ten to forty-five volumes may be removed from circulation and undergoing some stage of this repair process. (Moncure, 6/30/86 pp. 26-27; Ramsey, 6/13/86 pp. 25-26) Limited photocopying is available on the library premises. This issue is of particular importance to an inmate who has found legal materials he believes he needs to prepare his case. Unless he can copy the items, an inmate risks losing their use to another inmate who may check out the same materials. An inmate who requires copies of any library materials has two choices. The inmate may handcopy materials or he may place a request for photocopying. In either case, the procedure ties up library resources for significant periods. (Kunzelman, 6/17/86 p. 95 (approximately 2,000 to 3,000 copies per month are made for Central Complex inmates)) If an inmate is able to pay for the photocopying service (at ten cents per page— Kunzelman, 6/17/86 p. 110; with no limit on the number of pages — Ibid, at p. 95) or has been classified as indigent, the request for photocopies is processed. The library handles the procedure, but generally sends the materials to another section of the prison facility for the actual copying. A Personal Affairs Officer oversees the photocopying. The time required for copying varies with the request load, but generally takes at least three to four days. Approximately 1,200 of the Central Complex inmates do not have direct access to the facilities of the main law library. Instead, inmates in the segregated cell blocks and the old infirmary have limited use of “satellite libraries” or may obtain legal library materials only by means of a checkout system from the main law library. Minimal libraries have been established for use solely by inmates in segregated cell blocks. Former cells in blocks 5, 6, and 7 have been converted to satellite libraries for use by some of the segregated inmates. This conversion was accomplished pursuant to the consent judgment and a Department of Corrections policy directive (OP-SMI 61.-04). Typically, a cell block satellite library consists of a regular-sized cell at the end of a gallery such as in block 5 west. These facilities contain approximately five shelves and a small table. Appendix B of the consent judgment includes a list of the required “Minimum Collection for Administrative Segregation Law Libraries.” That list indicates that annotated Michigan laws, basic treatises (e.g., Nutshell series publications), policy directives, outdated Shepard’s Advance Sheets, and rules of procedure are to be provided. Testimony on behalf of plaintiff class indicated that the cell block satellite libraries contain little more than copies of the rules of procedure, policy directives, and outdated supplements. The satellite libraries are not staffed. No reliable inventory system has been established for the satellite libraries. Supporting materials are generally not provided in the satellite libraries. The availability of writing supplies in these cell block libraries is unreliable. The facilities do not contain a typewriter. Access to the satellite libraries is restricted and uncertain. Only inmates in a particular segregated cell block may use that cell block’s facility. An inmate must file a request with a block sergeant for permission to use the satellite library at a certain time. Under the consent judgment, personal access is limited to two hours per week for each inmate. Only one inmate at a time may use the satellite library in the cell block. Scheduling conflicts are frequent. Inmates report that they are unable to have access to the satellite libraries on a regular basis. Inmates held in segregated blocks may obtain materials directly from the main law library of the Central Complex by means of a check-out system. As plaintiffs note, this program is the only source of access to legal materials for segregated inmates who cannot obtain permission to use the limited facilities of the satellite libraries. The check-out system allows inmates housed in the segregated cell blocks to request materials from the main law library. Processing time for a check-out request varies. Books requested by inmates are supposed to be brought to the segregated cell blocks by one of the library aides three to five days a week. An inmate can attempt to check out up to five volumes or other legal resource items at a time. The materials may be kept only twenty-four hours or until the next library run. Books are brought on an as-available basis (i.e., a book is not provided if another inmate has requested it, for use in the main library or by check-out, or if the volume is out for repair or photocopying). The delivery system iis cumbersome and unreliable as one library clerk is given responsibility for the check-out program in all the segregated cell blocks. A library is in the process of being constructed in the maximum security facility, cell block 4. Inmates housed in block 4 are to be provided the same basic materials as those available in the main law library, but this project is not yet complete and cannot be evaluated. Cell block 4 inmates may obtain materials through the check-out system in the interim. The law library system for the Central Complex is thus composed of three main components: (1) the main law library; (2) the satellite libraries of the segregated cell blocks; and (3) the check-out system by which inmates in segregated cell blocks may request materials from the main law library. The legal resources available from the library system take the form of texts written in the English language. The materials are to be used on-site in the library or are available in restricted numbers for overnight use under the check-out procedure. This provision of a law library system is claimed by defendants to be a minimal, but constitutionally-sufficient, form of meaningful access to the courts as mandated in Bounds v. Smith, supra, for all the inmates of the Central Complex regardless of the inmates’ ability to utilize the library materials. But see Smith v. Bounds, 610 F.Supp. 597, infra. b. Needs and Resources for Non-Library Legal Assistance Available in the Central Complex The bulk of plaintiffs’ proofs regarded legal resources other than a library system. Plaintiff class presented proofs concerning their perceived needs as well as the means by which the Central Complex now attempts to meet those needs. (1) Needs Are Based Upon Illiteracy, Indigency, and Segregated Confinement Plaintiff class contends: (1) that functional illiteracy, indigency or near-indigency, and segregation prevent the meaningful use of written, English-language library materials offered in the Central Complex library system; (2) that the texts cannot be of assistance to those who cannot read them; and (3) that a scarcity of basic texts causes those without funds for copying materials or those who cannot directly use the materials in the main library to sustain significant delays in obtaining legal resources or to forego potentially advantageous legal resources. Plaintiffs presented the needs for legal assistance other than that available in a law library system by offering proofs with regard to inmates’ reading comprehension, their ability to pay for legal assistance from other inmates, and the problems created by confinement to segregated cell blocks. Plaintiffs emphasize that at least twelve hundred inmates of the Central Complex are housed in segregated cell blocks. I now outline plaintiffs’ claims with respect to inmate illiteracy, indigency, and lack of means by which inmates who cannot use the library may seek non-library legal assistance in the Central Complex. (2) The Acute Problem of Illiteracy Illiteracy or an inability to use (read and write) and understand the English language precludes twenty to fifty per cent of the inmates from using any law library materials. An inmate may be “actually” or “functionally” illiterate. Status as an illiterate person is based upon an inmate’s reading level (as demonstrated by the re-suits of the standard achievement tests administered upon intake into the Central Complex). The reading level for Central Complex inmates was determined from a sample of over one hundred scores resulting from intake testing done in the Reception and Guidance Center (administered by the prison officials) and a review of inmates’ writing samples. (McIntyre, 6/11/85 pp. 394-403) Based on the results of McIntyre’s examination, the average reading level (ability to comprehend) of the sample of inmates was grade six to six and one-half. (McIntyre, 6/11/85 pp. 396-399) Approximately twenty per cent of the inmates tested were “actually” illiterate (capable of reading only below the fourth grade (4.0) level). (McIntyre, 6/11/85 p. 446) The percentage of inmates who are “functionally” illiterate (i.e., who cannot read with adequate comprehension) was not determined with specificity. However, the average inmate (i.e., one reading at the sixth and one-half grade level) lacks ability to comprehend and reason using relatively unsophisticated legal materials according to plaintiffs’ expert. (3) General Assistance Given the Illiterate No formal program exists at the Central Complex to provide legal assistance to functionally illiterate inmates who cannot read and utilize the legal texts of the library system. Other, general assistance with reading is available. (a)Adult Education The Central Complex provides an adult education program for inmates who are characterized as “non-readers” (i.e., the average inmate who reads and writes at seventh grade equivalency or lower). (Limberg, 6/27/86 pp. 80-81) The program is also intended to serve as a tutorial aid for those inmates who do not possess sufficient command of the English language. This remedial course consists of a series of classes designed to assist an inmate in developing basic reading and writing skills. (Limberg, 6/27/86 pp. 80-81) The course does not address legal research or complaint preparation. (b) Personal Affairs Officer The Personal Affairs Officer will read mail for an inmate who has a reading deficiency. (Kunzelman, 6/17/86 p. 100) The service provided is limited. That Officer does not assist in preparing written materials for inmates and is not trained in legal research or in the preparation of legal papers. (c) Inmate Organizations Some inmate organizations at the Central Complex have attempted to provide translation services for fellow inmates. For example, HASTA, a group comprised of Hispanic inmates, attempts to assist Spanish-speaking inmates. The efficacy of this type of assistance is limited by the expertise of the inmates providing the services. At most, a jailhouse lawyer who speaks the native, non-English language of an inmate might be available to assist in preparing a case for presentation to a court. (See the discussion of the value of jailhouse lawyers as a consistent source of reliable legal assistance, infra.) (4) Non-Library Legal Assistance Coupled with proofs of functional illiteracy, plaintiffs presented a review of the types of non-library or non-written legal resources available to the inmates of the Central Complex. (a) Jailhouse Lawyers Perhaps the most prevalent form of assistance available to inmates is the advice and work of the writwriters or jailhouse lawyers. As many as a hundred inmates may be holding themselves out as jailhouse lawyers in the Central Complex. Their utility is severely restricted by factors of skill, fees charged, and prison regulations. Skill levels of the jailhouse lawyers vary considerably. (Thornton, 6/13/86 p. 74; Ramsey, 6/13/86 pp. 33, 37, and 41) The quality of their work is thus questionable. “While some are able, others lack the capacity to either understand the law or to apply it to a specific fact situation. They rely almost entirely on a capacity to write documents that use legal terminology but say very little.” (Israel, p. 48) Of those inmates who claim to be jailhouse lawyers, perhaps only a dozen have any competency in fact {see, for example, Thornton, 6/13/86 p. 74). Any expertise is traditionally limited to matters of criminal law, the jailhouse lawyer having learned his law by working on his own case, by taking some portion of the Jackson Community College paralegal training program, or by talking with other inmates. (Israel, p. 48; Ramsey, 6/12/86 pp. 87-91; and Thornton, 6/13/86 pp. 57-58) The Central Complex has no program for permitting only competent jailhouse lawyers to offer assistance or of requiring a jailhouse lawyer to offer assistance only in legal areas with which he has some familiarity. Even if an inmate could find a competent jailhouse lawyer, the cost of his services would be prohibitive. (Girard noted fees such as $2,000, Jordan noted fees of $700-$800 per appeal, Douglas noted having to pay a jailhouse lawyer or to do chores for a jailhouse lawyer in order to get help on his case, and Ramsey noted fees ranging from a jar of coffee and stamps to a few hundred dollars.) Eighty-two per cent (some 1,774 out of the 2,168 inmates listed with spendable prison account balances in Defendants’ exhibit 90) had balances of eighty dollars or less in October of 1987. At least 120 inmates have seven dollars or less in their accounts. (Kunzelman, 6/17/86 pp. 104-105) Thus, the majority of the Central Complex inmates are indigent or do not possess sufficient funds to pay fees charged by jailhouse lawyers. {See Defendants’ exhibit 90) Illiterate inmates are the least likely to have funds necessary to hire legal assistance. One who cannot function with adequacy in the use of the English language is least likely to be employable. Work available to an illiterate inmate is often low-paid, commensurate with comprehension skills. Jailhouse lawyers said that they and their counterparts regularly charge fees for their services, despite prison regulations which prohibit this {See Rule 617 and Department of Corrections’ Regulations Ad.Code R. 791.6617). The no-fee rules are ignored or not enforced. No incentive exists to induce jailhouse lawyers to perform work pro bono, and they do not. Prison regulations and practices also preclude a jailhouse lawyer from offering effective assistance to an inmate. The record already discussed notes difficulties due to scheduling conflicts and space constraints faced by inmates trying to work together. In the segregated cell blocks, inmates cannot work together at all. Similarly, as plaintiffs note, any additional library time is granted to inmates to work only on their own cases. The lack of facilities also prevents any privacy of communications between an inmate and another acting as his jailhouse lawyer if they are allowed to meet. The amount of materials an inmate may retain in his cell is controlled. Legal materials are exempt from this rule, but are interpreted to mean only materials pertaining to the inmate’s own case. Administrative and security concerns act generally to prevent any inmate from effectively conferring with another inmate to enable preparation of cases for submission to the courts. Once a jailhouse lawyer begins work on a case for another inmate, there is no guarantee that he or his client will remain in the same facility during the life of the case. If either inmate is transferred (the frequency and probability of transfer are illustrated by Thornton, Douglas, and others, 6/16/86 p. 52), legal assistance ends. The client inmate must start the search for legal advice anew even though he may have already expended significant sums of time and money in an effort to get competent assistance. (b) Inmate Paralegals Another legal assistance resource defendants offer to the inmates in the Central Complex is the inmate paralegal program. Plaintiffs’ proofs noted that most of the drawbacks of utilizing jailhouse lawyers also apply to the inmate paralegals. No means exist to prevent an inmate paralegal from charging fees for his services. Further, as inmates, these paralegals are subject to prison practices and procedures governing the administration and maintenance of security of the facility. Thus, obstacles to arranging meetings, working together, obtaining any privacy, securing library research time, and retaining papers hamper the effectiveness of the inmate paralegal. The reality of frequent transfers likewise limits the ability of an inmate paralegal to proceed with a client inmate’s case. (Girard, 6/16/86 pp. 62-64 — inmate assistant transferred and trial held in absence) The term “paralegal” suggests a level of expertise not often possessed by an inmate. To claim that an inmate paralegal possesses skills beyond that of a jailhouse lawyer may be an overstatement. Both the jailhouse lawyer and the inmate paralegal have questionable credentials. Apart from the labels, both have merely had an opportunity to attend classes designated as part of a paralegal training program sponsored by a neighboring community college. The Central Complex does not have an inmate paralegal training program. Instead, inmates may avail themselves of a series of classes offered by Jackson Community College (“JCC”). JCC is responsible for setting the standards for admission and for the subjects offered the inmates. These courses are generally taught by local lawyers and law students. No internship or practical experience is provided in the curriculum. No evaluation is made of the efficacy of the program. Most inmates do not continue beyond the initial phase of the program at JCC, which concentrates on criminal law. Through June of 1986, less than two dozen out of some three hundred inmates enrolled had completed the training. Transfers, a lack of ability, or a willingness to start “practicing” in criminal law are reasons cited for the low graduation rate. (Wreford, 6/23/86 pp. 17-28) The only supervised role for an inmate paralegal is in the Prison Legal Services Office (“PLS”). Inmates there work under the direction of attorneys in providing legal assistance to other inmates. However, as the PLS Program Director, Sandra Girard, has testified, even the inmates who have completed the paralegal training program are able to offer only limited aid. (c) Prison Legal Services Probably the most useful form of non-library legal aid available to Central Complex inmates is provided by Prison Legal Services. PLS was established as a source of legal assistance for all inmates in the entire prison facility at Jackson. The reality is far from the ideal, however. The staff is few in number. As indicated above, any expertise of the inmate staff is questionable. The subject matters addressable by the staff are restricted. Security considerations restrict PLS from being able to effectively assist inmates. A history of the facility is illustrative. Initially funded by grants from the State Bar of Michigan and from the Law Enforcement Assistance Administration, PLS was conceived as an ameliorating office to deal with the growing number of pro se actions brought by inmates whose pleadings were often incomprehensible. The funding for PLS continued in the Department of Corrections’ budget in the 1970’s once the grants terminated. In the early 1980’s, the Department of Corrections sought to terminate the PLS program. I issued a preliminary injunction requiring that the services of this facility continue pending the decision in this case. PLS operates pursuant to a contract with the Department of Corrections (Plaintiffs’ exhibit 40). This agreement governs such items as the budget, the governing board, the subject matters, and similar aspects of PLS operations. According to its contract, “operational and administrative control and responsibility” are vested in the PLS Board of Trustees. This independence from the state seems illusory. Funding and other financial matters remain the province of the Department of Corrections. It is the Department of Corrections which inspects the PLS offices at least every quarter to determine whether programs are being carried out in compliance with the contract. Further pressure is exerted by the state in that the Department of Corrections has announced intentions to eliminate PLS. PLS attorneys may be providing legal services which facially appear to violate standards of professional ethics regarding independence. The duty of PLS to responsibly provide legal assistance for inmates may be impaired by constraints on its ability to operate independent of the Department of Corrections. The professional staff of the PLS facility is limited. Sandra Girard, the director, is an attorney who divides her time between administrative matters and service to the inmates. Two other attorneys are on staff. One of these staff attorneys works full-time at the Central Complex except for one day of work each week at the North Complex. The other spends at least sixty per cent (and usually eighty per cent) of his time at another institution. In effect, PLS devotes the services of perhaps 1.8 lawyers to inmate matters. The PLS staff also includes three inmate paralegals and a few paralegal trainees (also inmates). These individuals do not work solely on Central Complex inmate matters. The average tenure of these inmate paralegals is measured in terms of a few months or, at the other extreme, many years. Their training consists of portions of the program sponsored by JCC (see (b), this section, above) and such guidance as the staff attorneys are able to give. In theory, most of the legal work done by PLS is to be performed by paralegals under the supervision of the attorneys. This necessarily presumes adequately trained paraprofessionals acting independently most of the time. The attorney’s supervision would hopefully consist of a review of major issues and final products. In reality, plaintiffs assert, the inmate paralegals can only attempt to do most of the work in PLS subject to an attorney’s review. The staff inmates are not consistently capable of performing even simple legal reasoning and drafting functions because of the limited training available. Many of the security restraints applicable to inmates extend to those on the PLS staff. For example, inmate paralegals cannot visit Central Complex inmates housed in segregated cell blocks. Thus, plaintiff class contends, inmate paralegals cannot function as paraprofessionals in the traditional sense, and the equivalent of two attorneys in PLS must bear the burden of providing legal services with minimal assistance from inmates on the staff. The staffing available for PLS results in an attorney-to-inmate ratio of approximately one to 1,200 (less than two attorneys for some 2,400 inmates). Both the American Correctional Association and the American Bar Association have issued reports recommending a ratio of one attorney to 400 inmates. Even where the support of civilian paralegals is available to a staff attorney, the American Bar Association recommends a ratio of one attorney to 800 inmates. Plaintiffs assert that the PLS attorney/inmate staff cannot meet the legal assistance needs for those inmates who are indigent, functionally illiterate, who speak no English, or who, because of their segregated status, have restricted access to a law library. The sheer number of requests for assistance overwhelms the capacity of this legal services arrangement to provide inmates meaningful access to the courts. The PLS staff has been adjudicated not adequate for the demands placed upon it. PLS must place an inmate on a waiting list for aid in any of several civil actions categories. ■ Plaintiffs offer this as evidence of the insufficiency of PLS as a legal resource. Plaintiff class presented nothing in their proofs which would permit an assessment of PLS output in terms of documents produced or appearances made in courts on behalf of inmates. The PLS operation, by contract and in fact, does not have the task of providing legal assistance for inmates who do not speak or write in English. Plaintiffs sum up their proofs with the contention that budgeting and other constraints on resources and operations prevent PLS staff members from meeting the particular legal assistance needs of Central Complex inmates who are functionally illiterate, indigent, or segregated. PLS is the only formal program of legal assistance consistently available to Central Complex inmates seeking to bring civil cases to the courts. B. Defendants’ Proofs Herein are the contentions of defendants: 1. In general Defendants assert that meaningful access to the courts for Central Complex inmates filing civil actions is provided by means of a sufficiently stocked and maintained law library. The bulk of their proofs consequently addresses the state of that library system. Defendants’ proofs attest to the provision of a law library system within the Central Complex which is stocked with the minimal collection necessary under constitutional standards and which is accessible to inmates either directly or by means of a materials check-out program. Like plaintiffs, defendants note the availability of jailhouse lawyers and other inmates to aid their fellow inmates in the unsegregated prison population. While defendants note that the inmates who testified (seven of ten of whom are jailhouse lawyers) described only limited personal difficulties in bringing their complaints before the courts, plaintiffs argue that this is of little significance in light of the claims of plaintiff class as a whole. Plaintiffs claim that defendants have no program to aid functionally illiterate, indigent or segregated inmates in the preparation of legal papers and that defendants offer no assurance of future legal assistance for such inmates. 2. Additional Sources of Legal Assistance Defendants presented proofs as to other, general forms of legal assistance available to Central Complex inmates. Various entities outside the prison system offer limited assistance for judicial or administrative relief for Central Complex inmates. These resources include organizations such as the State Appellate Defenders Office (“SADO”), state agencies such as the Office of the Legislative Corrections Ombudsman, and individual attorneys who may be working pro bono or for contingency fees. a.SADO SADO was established primarily to provide representation to inmates convicted of crimes who are unable to afford counsel to assist in their appeals of right. (Neuhard, 6/3/85 p. 15) Approximately twenty SADO attorneys represent inmates in the various state facilities. (Neuhard, 6/3/85 pp. 11-15) The SADO process is straightforward. Upon order of appointment by a circuit court, SADO staff attorneys obtain the lower court record and interview the inmate client. (Neuhard 6/3/85 pp. 16-17) SADO attorneys make a determination of case merit and proceed with representation accordingly. SADO also informally assists inmates. The staff reviews some 500 pieces of correspondence each month from non-client inmates. (Neuhard, 6/3/85 p. 28) This correspondence consists of requests for representation on a variety of questions concerning civil litigation matters. (Neuhard, 6/3/85 p. 29) SADO is able to respond informally to more than 400 of these non-client requests each month by providing briefs from a brief bank and newsletters on related matters. (Neuhard, 6/3/85 pp. 28-29) SADO also refers inmates to private attorneys or a formal referral service for possible representation in potentially meritorious civil rights claims. (Neuhard, 6/3/85 p. 66) b. Legislative Corrections Ombudsman The Office of the Legislative Corrections Ombudsman has an oversight function with respect to the Department of Corrections. Its staff monitors and investigates complaints which allege that administrative action taken by the Department of Corrections is contrary to administrative rules and policies, contrary to law, or is arbitrary or capricious. (Birch, Ombudsman and chief administrator of the Office, 11/17/87 pp. 8-9) The duties of the Office are established pursuant to M.C.L.A. Sections 4.351-364 (M.S.A. Sections 2.139(1)-2.139(14)). The work of the Office of the Ombudsman may indirectly benefit the case of a particular inmate. Staff persons from the Office are sent to the prisons regularly to investigate, report, and make recommendations on matters which might comprise the basis of civil rights actions by inmates. (Birch, 11/17/87 pp. 8-9. See also Girard, 6/16/86 p. 83) The investigation and resulting information may serve to resolve the matter or may possibly be used by an inmate in presenting his claim to a court, but no direct assistance is provided. c. Other Assistance Including Outside Attorneys The U.S. District Court for the Eastern District of Michigan has a pro bono attorney assignment program for inmate civil rights cases. (Defendants’ exhibit 58) This program does not provide meaningful legal assistance in drafting inmates’ complaints. Instead, an inmate’s complaint is evaluated for merit. Frivolous or non-sufficient complaints are dismissed and no attorney is appointed. If an inmate cannot draft an effective complaint, he is unlikely to obtain an attorney. Other attorneys may undertake to represent an inmate in a civil rights matter under a modified contingency fee arrangement. In all section 1983 cases, plaintiffs’ counsel who prevail are entitled to a fee for all hours reasonably expended (42 U.S.C. Section 1988). The payment does not depend upon the size of any award to a plaintiff. In addition to these direct forms of assistance for legal matters, an inmate may file a claim administratively through the Central Complex grievance process. C. Court-Appointed Experts’ Reports 1.Israel’s Examination of Legal Assistance Available to Central Complex Inmates Professor Jerold Israel of the University of Michigan Law School prepared a study primarily concentrating on the sources of legal assistance at the Central Complex. a. In General Israel examined all sources of legal aid for inmates in the Central Complex. His findings and conclusions with regard to the library system and the non-library resources have been footnoted in the prior discussion where appropriate. b. Nature and Extent of Assistance Rendered by PLS In his analysis of PLS, Israel offers a detailed outline of the nature and extent of that facility’s workload. This is significant in that PLS was established to service inmate requests for legal assistance. Any inquiry as to the meaningfulness of inmate access to the courts must necessarily include an evaluation of the scope of this program initiated with a goal of aiding inmates in the preparation of effective legal papers. Because his treatment is both thorough and objective, I now draw upon Israel’s work in my examination of the legal assistanee actually available to Central Complex inmates through PLS. (1) Categories of PLS Legal Aid Israel first notes the broad categories by which PLS staff members classify inmate requests for legal aid. The categories are taken from a caseload log maintained by PLS. The log is used to record formal requests for assistance that come through the kite (written request) system. It does not reflect any informal or one-time questions coming through window, door or yard requests for information. Inmate requests for legal assistance are divided into eight categories in the PLS log (roughly in the order of priority PLS would assign to the type of request): 1. Appeal of right matters; 2. Appeal of right exhausted matters (delayed appeals or delayed motions for a new trial); 3. Other post-conviction matters; 4. Prison administrative matters; 5. Other administrative matters; 6. Family law matters; 7. Other civil matters; and 8. Miscellaneous matters. “Appeal of right” matters are those requests for legal aid by inmates who still have an appeal of right and who wish to challenge their conviction. Many of the requests in the Appeal of Right category are from inmates who already have counsel or for whom counsel might be appointed as a matter of right. Other entities outside the Central Complex have primary responsibility for assisting inmates in such matters. For example, SADO facilitates the voluntary appointment of counsel from the ranks of the state bar. (See Neuhard, 6/3/85 p. 1, et seq.) Nevertheless, PLS has taken on the task of assisting inmates in obtaining counsel in these instances. About twenty-five per cent of the inmate requests for limited assistance from PLS concern facilitating communications between the inmate and an attorney representing the inmate. (Girard, 6/5/85 pp. 266-268) “Appeal of right exhausted” matters are requests by inmates who no longer have an appeal of right, but who wish to raise claims that can be presented to the state courts through a delayed appeal or, where the claim is outside the record, through a delayed motion for a new trial. “Other post-conviction” matters include situations where an inmate seeks to challenge his conviction through a federal habeas corpus action. “Prison administrative” matters relate to requests regarding internal issues for the Central Complex. The administration is being questioned. Specific subjects include: (1) major misconducts or security classifications on which hearings have been or will be held; (2) complaints that may be presented through the grievance process, such as property loss or destruction, inaccurate time computations, inadequate medical treatment, etc.; and (3) any requests for assistance in parole proceedings. The category of requests labeled “prison administrative” includes a significant number of requests for assistance on prison difficulties which could be characterized as civil rights (section 1983) suits. PLS staff members advise inmates on how to use the grievance procedure, as well as provide and assist the inmates with section 1983 complaint forms (obtained from the District Courts). As noted previously, the contract with the Department of Corrections restricts the types of cases in which PLS may offer assistance. PLS is not allowed to provide legal services with respect to “Civil Rights actions ... against the Department of Corrections.” PLS does advise inmates on these matters as described above despite cautions by the Department of Corrections that such action violates the terms of the PLS contract. Inmates also continue to seek informal assistance in challenging prison conditions. As Israel reports, “the challenging of prison conditions is among those subjects on which advice is most frequently sought.” (Israel, p. 33) In his study, Israel recommends that a substantial number of the requests in the “prison administrative” matters category should be excluded in considering inmate problems for which some assistance may be necessary if, under Bounds, infra, assistance must be provided only for accessing the courts. (I will discuss provisions for assisting inmates with such matters in my examination of the grievance system in conjunction with the Wolfson study.) But, Israel also points out that the “category does include many requests for assistance on matters that are ripe for judicial action (e.g. judicial review of a misconduct finding, a possible section 1983 action on prison conditions, or a mandamus action to correct an erroneous time computation).” (Israel, p. 34) “Other administrative” matters involve non-prison difficulties in areas such as deportation, social security and veterans’ benefits, workers’ compensation claims, etc. “Family law” matters include all family or domestic issues such as divorce, termination of parental rights, custodianship, and occasionally probate matters. “Other civil” matters describe various actions in which the inmate is sued or wishes to bring suit with regard to some civil issue not in the family law category and not related to the prison administration (i.e., tort actions based on incidents occurring prior to imprisonment or insurance claims). “Miscellaneous” matters predominantly take the forms of requests for notarization and photocopying by prisoners who prepare their own complaints. (2)Types of Responses Made by PLS Any response PLS makes to one of the eight categories of inmate requests are logged as one of the following activities: (1) limited assistance; (2) xerox; (3) notary; (4) wait list (delayed assistance); (5) denied (no assistance); and (6) file open. “Limited assistance” covers the majority of the legal aid offered by PLS. This response category includes a variety of services (i.e., telephone calls, assistance in writing to the courts, and other work on an inmate’s case such as obtaining depositions). “Xerox” and “notary” are self-explanatory. These responses are usually made to inmate requests on a one-time basis. “Wait list” denotes inmate matters in which PLS desires to assist the inmate, but which do not have a high priority because of the limited resources of PLS. “Denied” indicates a determination by PLS that the facility will not aid an inmate on a particular request. “File open” denotes a PLS response in matters for which PLS assumes full responsibility. In these instances, PLS will prepare the papers necessary to bring the matter to resolution, but will generally not make court appearances. (3)Summary of PLS Workload A summary of Central Complex inmate requests and PLS responses for 1984 and 1985 is presented by Israel as follows: REQUESTS BY CATEGORY Subject 1985 1984 Appeal of Right 276 208 Appeal of Right Exhausted 449 120 Other Post-Conviction 113 88 Prison Administrative 286 256 Other Administrative 35 35 Family Law 483 174 Other Civil 466 364 Miscellaneous 346 165 TOTALS 2^454 1,410 (See Israel, p. 30) TYPES OF ASSISTANCE RENDERED — 1985 * Subject Limited Assist. Xerox, Notary Wait List Denied File Open Appeal of Right 233 3 0 24 15 Appeal of Right Exhausted 368 7 3 14 57 Other Post-Conviction 92 2 0 7 11 Prison Administrative 213 73 0 7 2 Subject Limited Assist. Xerox, Notary Wait List Denied File Open O