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

94 F.3d 1287 96 Cal. Daily Op. Serv. 6556 , 96 Daily Journal D.A.R. 10,785 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. Filed May 2, 1996. Withdrawn Sept. 3, 1996. Decided Sept. 3, 1996. Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiff-appellant. John K. Bodick, Assistant Attorney General, Juneau, Alaska, for defendants-appellees. Appeal from the United States District Court for the District of Alaska, James K. Singleton, District Judge, Presiding. D.C. No. CV-93-00015-JKS. Before FLETCHER, JOHN T. NOONAN, Jr. and RYMER, Circuit Judges. ORDER The majority opinion and concurring and dissenting opinion filed May 2, 1996 are withdrawn, and the enclosed opinions are substituted in their place. As the appellee's petition for rehearing previously has been denied and the suggestion for rehearing en banc rejected as well, no further petitions for rehearing or rehearing en banc will be entertained. The mandate shall issue forthwith. OPINION FLETCHER, Circuit Judge. 1 Timothy Hiser, an inmate…

ORDER

The majority opinion and concurring and dissenting opinion filed May 2,1996 are withdrawn, and the enclosed opinions are substituted in their place. As the appellee’s petition for rehearing previously has been denied and the suggestion for rehearing en banc rejected as well, no further petitions for re *1289 hearing or rehearing en bane will be entertained. The mandate shall issue forthwith,

OPINION

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 (“defendants” or “the State”). Hiser sought equitable relief and damages contending that defendants refused to photocopy his legal documents, thereby denying him access 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-81-5274 Civ. (3d Jud. Dist.Alaska); the…

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 1988. 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…