Timothy William HISER, Plaintiff-Appellant, v. Richard H. FRANKLIN; Frank Sauser; Al Terrault, Defendants-Appellees

82 F.3d 869 96 Cal. Daily Op. Serv. 3053 , 96 Daily Journal D.A.R. 5105 Timothy William HISER, Plaintiff-Appellant, v. Richard H. FRANKLIN; Frank Sauser; Al Terrault, Defendants-Appellees. No. 94-35749. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1996. Decided May 2, 1996 Rymer, Circuit Judge, concurred in part, dissented in part, and filed opinion. Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiff-appellant. Michael J. Stark, Assistant Attorney General, briefed, Juneau, Alaska, John K. Bodick, Assistant Attorney General, argued, Anchorage, Alaska, for defendants-appellees. Alvin J. Bronstein and Marjorie Rifkin, ACLU Nat. Prison Project, Washington, DC, for amicus Nat. Prison Project. Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding. Before: FLETCHER, NOONAN and RYMER, Circuit Judges. FLETCHER, Circuit Judge: 1 Timothy Hiser, an inmate in the Alaska Department of Corrections' Fairbanks Correctional Center ("FCC"), appeals from the district court's grant of summary judgment in favor of defendant prison officials ("the State"). Hiser sought equitable…

Timothy Hiser, an inmate in the Alaska Department of Corrections’ Fairbanks Correctional Center (“FCC”), appeals from the district court’s grant of summary-judgment in favor of defendant prison officials (“the State”). Hiser sought equitable relief and damages contending that defendants refused to photocopy his legal documents, thereby denying him aecess to the courts in violation of the Constitution. The district court did not reach the merits of the claim, instead granting summary judgment on the grounds of res judicata. The court reasoned that a class of all Alaska inmates, present and future, had entered into a comprehensive consent decree in state court in 1990 dealing with prison conditions, Cleary v. Smith, 3AN-1-81-5274 Civ. (3d Jud. Dist.Alaska); the consent decree devoted approximately nine pages to various issues related to inmates’ “Access to the Courts” (although it did not address photocopying); and therefore Hiser’s claim was or could have been litigated in the previous class action and is barred by res judicata.

We disagree. Because the issue of photocopying was never adjudicated in the Cleary litigation, Hiser’s claims are not barred by issue preclusion. Neither…

concurring in part, dissenting in part:

I agree that Hiser may pursue his claim for damages, as he was not incarcerated in Alaska when Cleary was decided and the actions about which he complains did not occur until almost a year later. Under these circumstances, the Cleary judgment cannot be dispositive of his individual claim, and I concur in the majority’s conclusion in this respect.'

However, I do not agree that Hiser’s claims for declaratory and injunctive relief survive. Hiser complains about the right to photocopy. While photocopying was not an issue in Cleary, copying was. Alaska’s policy regarding photocopying of legal and other materials for inmates has remained unchanged since at least 1983. It therefore could have been raised as part of the class challenge that inmates were denied access to the courts in part on account of the policy on copying. Particularly in light of the extensive nature of the Cleary litigation and the comprehensive settlement reached so recently in that case (including, as it did, a specific provision on access to copying facilities), it is not inappropriate to expect a claimant seeking systemic relief with respect to copying to return to the…