plaintiffs have asserted constitutionally cognizable claims.
A. The Eighth Amendment
Defendant correctly points out that verbal harassment does not give rise to a constitutional violation enforceable under § 1983. See Murray v. Woodburn, 809 F. Supp. 383 (E.D.Pa. 1993) ("Mean [verbal] harassment of the sort alleged by [plaintiff] is insufficient to state a constitutional deprivation."); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (holding that the defendant's use of vulgar language does not give rise to a claim under § 1983). However, searches of a prisoner's person, cell or personal belongings, which are permissible in most circumstances,
can give "rise to an Eighth Amendment violation if they are conducted for 'calculated harassment.'" Proudfoot v. Williams, 803 F. Supp. 1048, 1051 (E.D.Pa. 1992) (citing Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)). Similarly, a correctional institution must furnish prisoners with adequate food to satisfy its obligations under the Eighth Amendment. Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (citing Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir. 1988)).
Nevertheless, as the Supreme Court has stated, the conditions of imprisonment do not reach the threshold of constitutional concern until a showing is made of "genuine privations of hardship over an extended period of time." Bell v. Wolfish, 441 U.S. 520, 542, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Applying this standard, one court found that the searching of a prisoner's cell 10 times in 19 days constituted an Eighth Amendment violation, Scher v. Engelke, 943 F.2d 921, 924-25 (8th Cir. 1991), cert. denied, U.S. , 117 L. Ed. 2d 652, 112 S. Ct. 1516 (1992) (noting that "previously no other court has held that cell searches constitute an eighth amendment violation"), whereas another court has held that the alleged denial of a few meals does not rise to the level of an Eighth Amendment violation, Bellamy v. Bradley, 729 F.2d 416, 419 (6th Cir.), cert. denied, 469 U.S. 845, 83 L. Ed. 2d 93, 105 S. Ct. 156 (1984) ("The testimony . . . fails to establish that appellees intentionally or negligently deprived Bellamy of his meals to the degree that a jury could find an Eighth Amendment violation.").
In this case, no plaintiff alleges that the defendant repeatedly searched his possessions. Rather, plaintiffs allege three instances when the defendant searched the possessions of one of the paralegals. Similarly, one plaintiff alleges that the defendant denied him a meal on two separate occasions. Thus, the court concludes that a jury could not reasonably find that either the alleged searches or the alleged deprivation of meals gives rise to a claim of cruel and unusual punishment under the Eighth Amendment.
B. The Fourteenth Amendment
Although plaintiff's allegations as to defendant's conduct do not give rise to constitutional violations under the Eighth Amendment, they may give rise to constitutional violations under the due process clause of the Fourteenth Amendment. Plaintiffs have alleged that the defendant harassed them because they assist other inmates in the preparation of litigation. It is, of course, well-established that "an action that would otherwise be permissible is unconstitutional if it is taken in retaliation for the exercise of the right of access to the courts." Bradley v. Pittsburgh Board of Education, 910 F.2d 1172, 1177 (3d Cir. 1990) (noting that "most cases concerning retaliation in violation of the right of access to the court have arisen in the prison context"); Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (collecting cases). Thus, the court must determine whether defendant's alleged harassment implicates the constitutional right of access to the courts.
In Bounds v. Smith, the Supreme Court held that the right of access to the courts is fundamental and as such it is both guaranteed by the Fourteenth Amendment and actionable under § 1983. 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). Subsequently, courts have held that this "right of access to the courts must be 'adequate, effective and meaningful' and must be freely exercisable without hinderance or fear of retaliation." Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981); DeTomaso v. McGinnis, 970 F.2d 211 (7th Cir. 1992) (holding that prison officials may not retaliate against inmates who seek or obtain access to the courts). Courts have further held that "any deliberate impediment to access [to the courts], even a delay of access, may constitute a constitutional impediment." Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986); see also Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir. 1992) ("prison officials may not affirmatively hinder a prisoner's efforts to construct a non-frivolous appeal or claim.").
The constitutional right of access to the courts enjoyed by prisoners also places an affirmative obligation on "prison authorities 'to assist inmates in the preparation and filing of legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law." Caputo v. Fauver, 800 F. Supp. 168, 171 (D.N.J. 1992) (noting that the state need not provide prisoners with both an adequate law library and legal assistance in order to fulfill its constitutional obligation); but see United States ex rel. Para-Professional Law Clinic v. Kane, 656 F. Supp. 1099, 1105 (E.D.Pa. 1987), aff'd, 835 F.2d 285 (3d Cir. 1987), cert. denied, 485 U.S. 993, 99 L. Ed. 2d 511, 108 S. Ct. 1302 (1988) ("The mere provision of an adequate law library does not necessarily satisfy the constitutional obligation set forth in Bounds. . . [as] an adequate law library, by itself, cannot provide meaningful access to the courts for those inmates unable to read and understand library materials."). Finally, while a prisoner does have the right to legal assistance, he does not have a right to the assistance of a particular prisoner. Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (holding that prisoners have no right to the assistance of a particular inmate "so long as prison officials make other assistance available").
At this juncture, the court must diverge briefly to discuss whose right of access to the courts is at issue in this case. Because a prisoner has no protected interest in providing legal representation to other inmates, see id., the only right of access at stake in this case is that of the prisoners whom the plaintiffs assist in the preparation of litigation. The plaintiffs themselves have no constitutional right to represent other inmates at the prison, rather the general prison population has a right to receive assistance. However, a prisoner does not have the right to the assistance of a particular inmate as long as some assistance is available, see Johnson v. Avery, 393 U.S. 483, 489-90, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969). Thus, the general prison population's right of access is only implicated in this case if the PLA paralegals provide legal assistance that enables the prison to satisfy its constitutional obligations under Bounds. If the paralegals do not serve this function, then defendant's alleged harassment in retaliation for their legal activities, while reprehensible, did not interfere with any prisoner's right of access to the court, and thus the retaliatory action would not constitute a constitutional violation.
In light of plaintiff's essentially unrefuted allegations that PLA members are trained by the prison to serve as paralegals and that their legal activities are prison sanctioned,
it appears undisputed that the legal assistance provided by the inmate paralegals enables the prison to fulfill its obligations under Bounds and that without their assistance the prison population would be deprived of their constitutionally guaranteed right of access to the courts. Nevertheless, at this juncture, the court will not render a final determination that a right of access claim is at stake in this litigation without the benefit of affidavits which set forth precisely the role of the PLA paralegals in the prison's constitutionally mandated legal assistance system.
However, if the legal assistance provided by PLA paralegals is constitutionally necessary, then it is clear that defendant's alleged harassment of the paralegals gives rise to a constitutional violation. Harassment of the paralegals who assist prisoners with their litigation would certainly redound to the detriment of those prisoners and ultimately to the inmate population as a whole. In short, the prison could hardly fulfill its constitutional obligation to assist prisoners in preparing their legal claims if those providing the assistance are subject to retaliatory harassment by prison authorities.
Finally, the court must consider defendant's contention that there is no right of access claim at stake in this case because no actual injury has occurred given that "plaintiff, PLA, and its members have sent numerous documents and correspondence to the court and have also filed a supplemental complaint." Def. Brief at 22. Relying on Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) and Hudson v. Robinson, 678 F.2d 462 (3d Cir. 1982), the defendant argues that the plaintiffs have no right of access claim because "the PLA has simply not been injured in any way." Id.
However, defendants reliance on Kershner and Hudson is misplaced. As the Third Circuit pointed out in Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988), Kershner and Hudson involved claims by prisoners that the respective prisons failed to provide pads, pens, pencils, photocopying machines and immediate notary services in violation of the prisoners' right to access the courts. Peterkin, 855 F.2d at 1040. The Peterkin court explicitly distinguished right of access claims based on a lack of "peripheral" resources -- such as pens and paper -- from claims based on a lack of "central" resources -- an adequate law library or other legal assistance. Id. at 1041. The court stated:
In cases where a prisoner's claim relates to access to resources other than legal assistance itself, an actual injury test can be helpful in determining whether an unconstitutional abridgement of access to the courts has occurred. Legal assistance by contrast -- whether in the form of an accessible and adequate law library, court-appointed or other attorneys or para-professionals, or some combination of legal resources -- is central, not peripheral, to the right of access to the courts that Bounds protects.
Id. Critically, the court added:
We believe that in cases, like this case, directly involving prisoners' access to legal knowledge, an actual injury necessarily occurs by virtue of a prison's failure to provide the level of assistance required under Bounds. We hold, therefore, that where, as here, plaintiffs who possess standing to sue bring an access to the courts claim that alleges the inadequacy of 'law libraries or alternative sources of legal knowledge,' the analysis of whether an actual constitutional injury exists is simply the Bounds analysis.