Fletcher Casey, Jr., on Behalf of Themselves and All Others Similarly Situated v. Samuel A. Lewis, Director, Arizona Department of Corrections

4 F.3d 1516 2 A.D. Cases 1820 , 2 ADD 908, 4 NDLR P 323 Fletcher CASEY, Jr., et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Samuel A. LEWIS, Director, Arizona Department of Corrections, et al., Defendants-Appellants. No. 91-16513. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1992. Decided Sept. 23, 1993. Edward G. Hochuli, Kathleen L. Wieneke, Daniel P. Struck, and David C. Lewis, Jones, Skelton & Hochuli, Phoenix, AZ, for defendants-appellants. Stuart H. Adams, Jr., Elizabeth Alexander, Adjoa A. Aiyetoro, and David C. Fathi, ACLU Nat. Prison Project, Washington, DC, Alice L. Bendheim, Phoenix, AZ, for plaintiffs-appellees. Appeal from the United States District Court for the District of Arizona. Before: GOODWIN, FARRIS, and PREGERSON, Circuit Judges. OPINION FARRIS, Circuit Judge: OVERVIEW 1 The Arizona Department of Corrections appeals an order granting partial summary judgment in favor of a certified plaintiff class of Arizona state prisoners and enjoining the Department from (a) prohibiting contact visits between inmates and their attorneys, and (b) denying food-service jobs to HIV-positive 1…

OVERVIEW

The Arizona Department of Corrections appeals an order granting partial summary judgment in favor of a certified plaintiff class of Arizona state prisoners and enjoining the Department from (a) prohibiting contact vis *1518 its between inmates and their attorneys, and (b) denying food-service jobs to HIV-positive 1 inmates. The inmates brought this action under 42 U.S.C. § 1983 (1988) and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). We vacate the injunction. On the issue of attorney-inmate contact visitation, we reverse the grant of summary judgment for the inmate class and order summary judgment in favor of the Arizona Department of Corrections. With respect to the section 504 claim, we remand with instructions to dismiss for lack of standing.

JURISDICTION

The district court exercised original jurisdiction pursuant to 28 U.S.C. §§ 1331 , 1343(a)(3), and 2201. The Department of Corrections contends that the plaintiff class lacks standing under Article III of the United States Constitution to assert its claims under the Constitution and under section 504. We address the standing issue for these two claims separately. We have…

concurring in part and dissenting in part:

I concur in the majority’s disposition of the Rehabilitation Act claim because the class representatives have not demonstrated that any class member has standing to challenge the food service policy. See Lynch v. Dawson, 820 F.2d 1014, 1016 (9th Cir.1987). However, I dissent from the majority’s opinion with respect to the “access to the courts” claim because the majority has, in effect, abandoned the' Turner “reasonableness” standard of review in favor of the “toothless” rational basis standard of review. In reversing summary judgment for prisoners on this claim, the majority (1) departs from the well-settled principle that the state bears the burden of justifying a regulation that injures a constitutionally protected interest; (2) disregards our circuit’s interpretation of Turner, which requires prison officials to 'prove that their asserted justification is the “actual basis” for a challenged regulation; (3). violates Fed.R.Civ.P. 56 by crediting unsupported allegations; and (4) sharply narrows the due process right of access to the courts, as that right has been defined through fifty years of Supreme Court decisions. The majority then…