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ARGUMENT

I. The right of access to the courts is not
implicated in this case.

This case revolves around prison litigation. The plaintiff was purporting to act as a law clerk when he investigated Officer Galle and when he made the allegations against Galle in his letter to Tracy. The offending letter was intended to influence prison-related litigation and raised the prospect of litigation against the prison. This suit is a class action on behalf of all prisoner law clerks in the plaintiff's prison. Even though this case is seemingly inseparable from prison litigation, the Ninth Circuit deferred analysis under the more straightforward prisoner's right to access to the courts for an esoteric extension of First Amendment case law.

Although this case is best analyzed under the right of access, this right was not implicated by the actions of the Montana authorities. This right is only violated when some prisoner is actually kept from having his or her day in court. Since the disciplinary action kept no prisoner from the courts, the right of access was not implicated.

The right to access is a very limited guarantee that is intended to place minimal burdens on prison authorities. States are not forced into a rigid set of requirements, but instead may meet the constitutional minimums through whatever means they choose. Thus, "a legal access program need not include any particular element we have discussed, and we encourage local experimentation" so long as it satisfies "constitutional standards." Bounds v. Smith, 430 U. S. 817, 832 (1977). This combination of deference and flexibility is found throughout the access cases.

So long as the prisoner has some adequate means of presenting his or her claims in court, the constitutional minimum is met. Johnson v. Avery, 393 U. S. 483 (1969) provides a clear example of this principle. Like the present case, the prisoner in Johnson was prevented from giving legal help to a fellow inmate. See id., at 484 (regulation prohibiting inmates from giving legal advice). Even though this Court understood that "writ writers" could menace prison discipline and security, see id., at 488, the Tennessee prison regulation was still unconstitutional because the prisoners had no alternatives for presenting their claims to the courts. Id., at 490. Since there was no "other source of assistance for prisoners" who were incapable of representing themselves in court, the rule was unconstitutional. See id., at 487. Had the state provided an adequate alternative, it could "prohibit mutual assistance among inmates." See id., at 489-490. Representation by an actual attorney is a more than adequate alternative.

The plaintiff in this case was attempting to give legal help to an inmate who was already represented by counsel. See Murphy v. Shaw, 195 F. 3d 1121, 1123 (CA9 1999). Since the representation concerned a criminal matter, Tracy's assault of Officer Galle, see ibid.; Pet. for Cert. 3, the right to access is irrelevant, as Tracy had a Sixth Amendment right to counsel. See Gideon v. Wainwright, 372 U. S. 335 (1963). This right to counsel does not include a right to the additional assistance of a fellow inmate. While Tracy may represent himself, Faretta v. California, 422 U. S. 806, 834 (1975), or may retain counsel of his choice, see Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625 (1989), he has no right to the additional assistance of a freelance inmate paralegal of his own choosing. Criminal defendants who accept appointed counsel do not "have a Sixth Amendment right to choose their counsel." Id., at 624. Similarly, the selection of investigators, paralegals, or experts to help prepare the defense must be left to appointed counsel or the state. The Montana authorities offered Tracy the services of an inmate law clerk with a lower security classification than the plaintiff, but Tracy refused, insisting upon Murphy. See Pet. for Cert. 4. Even though Tracy wanted the plaintiff's legal help, he was not entitled to it.

There is no right to be a writ writer or law clerk independent of insuring a prisoner's adequate access to the courts. Law clerks or any other component of the right to access such as "prison law libraries and legal assistance programs are not ends in themselves, but are only means for ensuring 'a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.' " Lewis v. Casey, 518 U. S. 343, 351 (1996) (quoting Bounds, supra, 430 U. S., at 825). Prisoners have no right "to discover grievances, and to litigate effectively once in court." Id., at 354 (emphasis in original). There is only "a right to bring to court a grievance that the inmate wished to present . . . . " Ibid. "There is, however, no right to be or to receive assistance from a jailhouse lawyer independent of the right of access to the court." Gassler v. Rayl, 862 F. 2d 706, 707-708 (CA8 1988); see, Tighe v. Wall, 100 F. 3d 41, 43 (CA5 1996); Gibbs v. Hopkins, 10 F. 3d 373, 378-380 (CA6 1993) (claim stated only if no alternatives exist; plaintiff must amend complaint to so allege); Smith v. Maschner, 899 F. 2d 940, 950 (CA10 1990); Bass v. Singletary, 143 F. 3d 1442, 1446 (CA11 1998) (collecting cases); but see Kunzelman v. Thompson, 799 F. 2d 1172, 1178, n. 6 (CA7 1986) (open question under the First Amendment right to association).⁽²⁾

The right to access is only violated where there has been an actual injury which frustrates or impedes a prisoner's presentation of a nonfrivolous legal claim. See Casey, supra, 518 U. S., at 351. That has not happened here. Tracy had counsel through his Sixth Amendment right, which more than satisfies the prisoner's right to access. Cf. id., at 354. No other prisoner has been kept from litigating Officer Galle's alleged misdeeds. If plaintiff's allegations were true, then the prisoners harmed by Officer Galle may present their claims in an appropriate forum with the help of inmate law clerks like the plaintiff, as was promised in the letter, see Murphy, supra, 195 F. 3d, at 1123, or through reasonable alternatives. Since the administration's actions have not kept any prisoner from having his day in court, the right of access has not been implicated, let alone violated.

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2. There is also a substantial controversy in the circuit courts over whether an inmate has the standing to assert another inmate's right of access. See Smith, supra, 899 F. 2d, at 950 (collecting cases). Since this issue has not been raised in this case, amicus will not discuss it.