This action for declaratory and injunctive relief under the federal Civil Rights Act (42 U.S.C. § 1983) was filed in the Superior Court of Los Angeles County on behalf of the individual plaintiffs and all other unsentenced Los Angeles County jail inmates representing themselves against criminal charges. Plaintiff "pro. pers." complained of a variety of alleged conditions of their confinement, including the inadequacy of the jail law library and the prohibition against their giving legal assistance to sentenced inmates.
Denying relief in all other respects, the court granted preliminary injunctions ordering defendants to: (1) add the Los Angeles Daily Journal and United States Law Week to the collection of the jail law library; and (2) employ an attorney full time to assist sentenced inmates in preparing petitions challenging the legality of their confinement. Defendants contend the second injunctive order was an abuse of discretion.
The amicus brief of the Attorney General points out that section 1983 as originally enacted provided that proceedings under it were to be
The Attorney General argues against concurrent jurisdiction on the ground that section 1983 creates a "remedy," not a "right." The significance of the purported distinction is never made clear. However, persuasive authority holds that section 1983 does create a substantive "right." In determining the limitations period applicable to an action under section 1983, the Court of Appeals in Smith v. Cremins (9th Cir.1962) 308 F.2d 187 [98 A.L.R.2d 1154], considered whether such an action is based "upon a liability created by statute." within the meaning of section 338, subdivision 1, of the California Code of Civil Procedure. The court concluded: "Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability." (308 F.2d at p. 190; see Franklin v. City of Marks (5th Cir.1971) 439 F.2d 665, 669; Glasscoe v. Howell (8th Cir.1970) 431 F.2d 863, 865.)
The Attorney General's remaining contribution to the discussion is catastrophic metaphor, characterizing the finding of concurrent jurisdiction in this case as having "loosed a Johnstown flood of litigation which unless checked promises to inundate the judicial system of this State." This dire prophecy is beside the point, implying as it does that exercise
The majority of courts considering the question concur in our conclusion that state courts do have concurrent jurisdiction over actions arising under section 1983. (New Times, Inc. v. Arizona Board of Regents (1974) 110 Ariz. 367 [519 P.2d 169, 176]; Dudley v. Bell (1973) 50 Mich.App. 678 [213 N.W.2d 805, 806-807]; Clark v. Bond Stores, Inc. (1973) 41 App.Div.2d 620 [340 N.Y.S.2d 847, 848]; see Gabaldon v. United Farm Workers Organizing Committee (1973) 35 Cal.App.3d 757, 762, fn. 4 [111 Cal.Rptr. 203]; Long v. District of Columbia (1972) 469 F.2d 927, 937 [152 App.D.C. 187]; International Prisoners Union v. Rizzo, supra, 356 F.Supp. 806, 810; Luker v. Nelson (N.D.Ill. 1972) 341 F.Supp. 111, 116; contra, Chamberlain v. Brown (1969) 223 Tenn. 25 [442 S.W.2d 248, 252]; see Beauregard v. Wingard (S.D.Cal. 1964) 230 F.Supp. 167, 185.)
The Los Angeles County jail prohibits "pro. pers." — unsentenced inmates representing themselves in pending criminal actions — from rendering legal assistance to sentenced inmates. Relying on Johnson v. Avery, supra, 393 U.S. 483 [21 L.Ed.2d 718, 89 S.Ct. 747] and In re Harrell, supra, 2 Cal.3d 675 [87 Cal.Rptr. 504, 470 P.2d 640], plaintiff pro pers. sought to enjoin the practice, contending it prevents sentenced inmates from obtaining assistance in seeking postconviction relief. Defendants responded that the practice is but a reasonable restriction on inmate mutual assistance, valid under both Johnson and Harrell. After defendants declined to propose alternatives, the court issued the injunctive order of which they complain.
When inmates of San Quentin and Folsom prisons relied on Johnson in complaining in In re Harrell, supra, of limitations placed upon their efforts to provide legal assistance to other inmates, this court drew two important distinctions. The first distinction is between the rights of inmates with intellectual or educational handicaps who, therefore, require assistance in seeking postconviction relief and, on the other hand, "the assumed prerogatives of those inmates who have ... set themselves up as legal consultants." (2 Cal.3d at p. 688.) The second distinction is between preventing and reasonably restricting mutual legal assistance among inmates. "[O]n the one hand Johnson establishes that, absent any suitable alternative means for providing legal assistance to illiterate and uneducated prisoners, there may be no prison rule which has the effect of preventing mutual prisoner assistance. On the other hand, however, Johnson concludes that prison rules which do not prevent, but merely restrict in a reasonable manner, prisoner assistance do not offend the Constitution. The question remains whether a given restriction is proper." (2 Cal.3d at p. 686; italics in original.)
Determining whether a given restriction is proper involves balancing the "extent of restriction against the need for restriction.... If the application of the rule impedes or discourages mutual prisoner assistance to a significant degree, the burden of justification will be great. If, on the other hand, the application of the rule results in mere inconvenience to prisoners seeking legal assistance and there is a clear institutional reason for the restriction, the rule must be sustained." (2 Cal.3d at p. 686; italics in original.)
Applying these principles, this court in Harrell upheld the refusal of prison authorities to permit a "writ writer" confined at Folsom to
The regulation challenged here, like that upheld in Harrell, restricts — but does not prevent — mutual legal assistance among inmates. Just as prisoners in need of legal assistance in Harrell could turn to other inmates at the same prison, sentenced county jail inmates in need of legal assistance here can turn to other sentenced inmates. The question remains whether this policy unreasonably restricts access to the courts by sentenced inmates.
The restriction appears to be no more extensive here than in Harrell. Mutual legal assistance there was also limited to that provided by sentenced inmates, prisons containing nothing but sentenced inmates. The extent of the restriction in Harrell was held to be so insignificant that the need for it was not discussed. Security considerations support segregation of sentenced and unsentenced inmates because of the latter's possible access to contraband during trips to court. Insofar as they have greater privileges, pro. pers. present greater risks. The grounds of this restriction also include statute and court rule. Section 4001 of the Penal Code provides that county jail inmates "committed on criminal process and detained for trial" be confined "separately and distinctly" from inmates "already convicted of crime and held under sentence." The Los Angeles Superior Court memorandum regarding pro. per. privileges expressly prohibits them from rendering legal assistance to other inmates.
However, the restrictive effect of this policy was compounded by the fact that sentenced inmates did not have access to a law library when the court ruled; only pro. pers. could use the jail law library. Therefore,
The declarations of seven sentenced inmates were admitted into evidence on plaintiffs' motion. Their common complaint was that sentenced inmates had no access to "legal materials or resources." None alleged he was intellectually or educationally handicapped. To the contrary, all complained that sentenced inmates were not permitted to use the jail law library, implying they were competent to do their own legal research. Five of the seven stated that, given the opportunity, they would use the jail law library or the services of a pro. per., implying either alternative would be satisfactory. Their needs, therefore, appear to have been satisfied in the interim because the jail now makes a law library available to sentenced inmates pursuant to federal court order, according to defendants' petition for rehearing in the Court of Appeal.
The preliminary injunction appears to be partly based on the misconception that the mutual legal assistance available to disadvantaged inmates must be provided by inmates granted pro. per. status or somehow found similarly qualified.
Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Burke, J.,
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."