Hebbe

Opinion by Judge REINHARDT; Concurrence by Judge FRIEDMAN.

OPINION

Paul Hebbe, a prisoner in the California State Prison-Sacramento C-Facility (“CSP”), appeals the district court’s grant of prison officials Cheryl Pliler, Warden of the CSP, and Steven Vance, Correctional Captain of the CSP (individually and collectively “the prison officials”) motion to dismiss his 42 U.S.C. § 1983 action under Federal Rule of Civil Procedure 12(b)(6). Hebbe appeals the district court’s ruling with respect to two distinct constitutional claims. First, Hebbe claims that the prison officials violated his constitutional right of court access because they denied him use of the prison law library without providing any alternative means of legal research assistance during the limited time period in which he was permitted to appeal his state court criminal conviction. Second, Hebbe claims that subsequently the prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment because they forced him to choose between two constitutional rights, his right to exercise and his right of court access, by allowing him out of his cell only two hours per day, four days per week,…

concurring:

I agree that, under the precedents of this court, the district court should not have dismissed the two claims here at issue. I write separately, however, to point out another aspect of the case.

For Hebbe to recover damages in his § 1983 suit, he would have to show that, had it not been for the two alleged constitutional violations to which he was subjected, he probably would have succeeded in overturning his conviction. In light of the events in this case, he seems unlikely to be able to make that showing.

Hebbe, represented by counsel, entered into a plea agreement with California prosecutors, under which he pleaded guilty to two counts of burglary and was sentenced to eighteen years imprisonment. The California Court of Appeal, to which he appealed his conviction, appointed pro bono counsel for him. His counsel filed a so-called “Wende” brief, stating that counsel could find no legitimate issue to argue on appeal. The Court of Appeal permitted Hebbe’s appellate counsel to withdraw and informed Hebbe that he could file pro se a supplemental appellate brief within thirty days. Hebbe did not do so within that deadline.

Hebbe asserts that the reason was because he…