PER CURIAM.
This matter is before this Court on Alvin Kirby’s motion for appointment of counsel and for leave to proceed in for-ma pauperis. For the reasons hereinafter set forth those motions are denied.
Alvin Kirby is confined in the United States Medical Center for Federal Prisoners, Springfield, Missouri where he is serving a six-year sentence imposed pursuant to a plea of guilty for violation of 18 U.S.C. §§ 2 and 2113(a)(d). During the course of his confinement he filed a petition for writ of habeas corpus in the Western District of Missouri. That petition alleged: 1) that he was deprived of his first amendment freedom of religion by the denial of a pork free diet required by his Muslim beliefs; 2) that he was denied access to the courts in pursuit of post-conviction relief because of the limited scope of the Medical Center’s law library; and 3) that he was deprived of his first amendment freedom of speech when he was denied personal interviews with the news media. The petition was referred to a United States Magistrate for pretrial recommendations pursuant to local Rule 26 of the Western District of Missouri and was consolidated with another pending habeas petition challenging the adequacy of the medical treatment he had received at the Medical Center. A Federal Public Defender was appointed to represent him on the consolidated petitions. Kirby moved to dismiss that portion of his petition which pertained to violations of his freedom of religion upon satisfactory resolution of his complaint and the matter was set for an evidentiary hearing before the magistrate.
The evidence adduced at the evidentiary hearing relating to Kirby’s allegedly inadequate medical treatment disclosed that he had had numerous examinations and tests at the Medical Center [1312]*1312for an alleged bladder infection. His principal complaint related to the denial of antibiotics for the alleged infection. However, it was revealed that he had never requested antibiotics from any physician at the Medical Center; Accordingly, the magistrate recommended that Kirby failed to show a denial of medical care or such negligent disregard of his condition as would, warrant a court to review his diagnosis and treatment.
With respect to his freedom of speech claim, Kirby indicated that he had never been denied the right to have a personal interview with the press, thus, he voluntarily elected to dismiss that count of his complaint.
Finally, Kirby submitted a list of the available books and documents in the Medical Center’s law library. However, the magistrate found that claim to be without merit by taking judicial notice of the Public Defender Program at the Medical Center and holding, effectively, that the latter program complies with any constitutional requisite for legal assistance to inmates confined therein.
As permitted by local Rule 26, Kirby filed an exception to the magistrate’s report and recommendation in the District Court for the Western District of Missouri contending that the magistrate made no finding of the adequacy of the library. Essentially, he argued that the magistrate did not find that the Federal Public Defender system provided all of the legal assistance to which an inmate might constitutionally be entitled. He also maintained that he was entitled to a library independent of the Federal Public Defender’s legal assistance on the basis that he had a constitutional right to represent himself pro se. Thereupon the district court ordered that the portion of the petition that dealt with the adequacy of the law library be remanded to the United States Magistrate to make findings of fact and conclusions of law in regard to the constitutional adequacy of the Medical Center law library. The other recommendations of the magistrate were adopted by the Court and an order was entered consistent with those recommendations.
On remand, a hearing was held on the adequacy of the library. At the hearing, an inventory of the available resources was conducted and the condition of the library was found to be in disarray and confusion. However, it was determined that the Medical Center library was in substantial compliance with a policy established by the Federal Bureau of Prisons setting forth guidelines for the adequacy of federal institutional law libraries. That policy was adopted subsequent to the decision in Gilmore v. Lynch, 319 F.Supp. 105 (N. D.Cal.1970) (three-judge court), aff’d sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). The magistrate held that, if the Gilmore list is a constitutional requisite, the Medical Center could come into compliance with little effort. However, the magistrate did not find that the Gilmore list was a constitutional requisite; he did not recommend that the Medical Center meet those requirements; and he did not hold that the Medical Center library was adequate in its existing condition. Instead he reasoned that the Federal Public Defender system was an adequate alternative to the provision of an adequate law library, thus no federal rights were denied by not providing legal resources to Medical Center inmates. In drawing that conclusion, the magistrate took judicial notice of the staff and function of the Public Defender system at the Medical Center and he relied on former judicial findings of the Western District of Missouri of the adequacy of that program under the criteria announced in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Ayers v. Ciccone, 303 F.Supp. 637, 640 (W.D.Mo.1969), appeal dismissed, 431 F.2d 724 (8th Cir. 1970).
Kirby again took exception to the magistrate’s recommendations. However, the district court accepted the report and recommendation of the magistrate on the basis that the Federal Public Defender for the Western District of [1313]*1313Missouri presents an acceptable alternative to an adequate law library. Thereupon, Kirby’s petition for a writ of habeas corpus was denied. This appeal followed.
Kirby’s petition for a writ of habeas corpus presents the identical claim that was recently before this Court in Noorlander v. Ciccone, 489 F.2d 642 (8th Cir., 1978). Noorlander sought access to the courts in his attempt to secure post-conviction relief. We there held that the institution need not provide every means of access to the courts under Johnson v. Avery, supra, but that it must provide some means of access to the courts. We noted that, consistent with previous holdings of this court, an alternative under Johnson v. Avery, supra, must be evaluated on its own, reasonably contemporaneous with the assertion of the claim, and upon facts present in the record. Since there was no basis in the record for holding the public defender system was presently adequate to meet the requirements of Johnson v. Avery, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM.
This matter is before this Court on Alvin Kirby’s motion for appointment of counsel and for leave to proceed in for-ma pauperis. For the reasons hereinafter set forth those motions are denied.
Alvin Kirby is confined in the United States Medical Center for Federal Prisoners, Springfield, Missouri where he is serving a six-year sentence imposed pursuant to a plea of guilty for violation of 18 U.S.C. §§ 2 and 2113(a)(d). During the course of his confinement he filed a petition for writ of habeas corpus in the Western District of Missouri. That petition alleged: 1) that he was deprived of his first amendment freedom of religion by the denial of a pork free diet required by his Muslim beliefs; 2) that he was denied access to the courts in pursuit of post-conviction relief because of the limited scope of the Medical Center’s law library; and 3) that he was deprived of his first amendment freedom of speech when he was denied personal interviews with the news media. The petition was referred to a United States Magistrate for pretrial recommendations pursuant to local Rule 26 of the Western District of Missouri and was consolidated with another pending habeas petition challenging the adequacy of the medical treatment he had received at the Medical Center. A Federal Public Defender was appointed to represent him on the consolidated petitions. Kirby moved to dismiss that portion of his petition which pertained to violations of his freedom of religion upon satisfactory resolution of his complaint and the matter was set for an evidentiary hearing before the magistrate.
The evidence adduced at the evidentiary hearing relating to Kirby’s allegedly inadequate medical treatment disclosed that he had had numerous examinations and tests at the Medical Center [1312]*1312for an alleged bladder infection. His principal complaint related to the denial of antibiotics for the alleged infection. However, it was revealed that he had never requested antibiotics from any physician at the Medical Center; Accordingly, the magistrate recommended that Kirby failed to show a denial of medical care or such negligent disregard of his condition as would, warrant a court to review his diagnosis and treatment.
With respect to his freedom of speech claim, Kirby indicated that he had never been denied the right to have a personal interview with the press, thus, he voluntarily elected to dismiss that count of his complaint.
Finally, Kirby submitted a list of the available books and documents in the Medical Center’s law library. However, the magistrate found that claim to be without merit by taking judicial notice of the Public Defender Program at the Medical Center and holding, effectively, that the latter program complies with any constitutional requisite for legal assistance to inmates confined therein.
As permitted by local Rule 26, Kirby filed an exception to the magistrate’s report and recommendation in the District Court for the Western District of Missouri contending that the magistrate made no finding of the adequacy of the library. Essentially, he argued that the magistrate did not find that the Federal Public Defender system provided all of the legal assistance to which an inmate might constitutionally be entitled. He also maintained that he was entitled to a library independent of the Federal Public Defender’s legal assistance on the basis that he had a constitutional right to represent himself pro se. Thereupon the district court ordered that the portion of the petition that dealt with the adequacy of the law library be remanded to the United States Magistrate to make findings of fact and conclusions of law in regard to the constitutional adequacy of the Medical Center law library. The other recommendations of the magistrate were adopted by the Court and an order was entered consistent with those recommendations.
On remand, a hearing was held on the adequacy of the library. At the hearing, an inventory of the available resources was conducted and the condition of the library was found to be in disarray and confusion. However, it was determined that the Medical Center library was in substantial compliance with a policy established by the Federal Bureau of Prisons setting forth guidelines for the adequacy of federal institutional law libraries. That policy was adopted subsequent to the decision in Gilmore v. Lynch, 319 F.Supp. 105 (N. D.Cal.1970) (three-judge court), aff’d sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). The magistrate held that, if the Gilmore list is a constitutional requisite, the Medical Center could come into compliance with little effort. However, the magistrate did not find that the Gilmore list was a constitutional requisite; he did not recommend that the Medical Center meet those requirements; and he did not hold that the Medical Center library was adequate in its existing condition. Instead he reasoned that the Federal Public Defender system was an adequate alternative to the provision of an adequate law library, thus no federal rights were denied by not providing legal resources to Medical Center inmates. In drawing that conclusion, the magistrate took judicial notice of the staff and function of the Public Defender system at the Medical Center and he relied on former judicial findings of the Western District of Missouri of the adequacy of that program under the criteria announced in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Ayers v. Ciccone, 303 F.Supp. 637, 640 (W.D.Mo.1969), appeal dismissed, 431 F.2d 724 (8th Cir. 1970).
Kirby again took exception to the magistrate’s recommendations. However, the district court accepted the report and recommendation of the magistrate on the basis that the Federal Public Defender for the Western District of [1313]*1313Missouri presents an acceptable alternative to an adequate law library. Thereupon, Kirby’s petition for a writ of habeas corpus was denied. This appeal followed.
Kirby’s petition for a writ of habeas corpus presents the identical claim that was recently before this Court in Noorlander v. Ciccone, 489 F.2d 642 (8th Cir., 1978). Noorlander sought access to the courts in his attempt to secure post-conviction relief. We there held that the institution need not provide every means of access to the courts under Johnson v. Avery, supra, but that it must provide some means of access to the courts. We noted that, consistent with previous holdings of this court, an alternative under Johnson v. Avery, supra, must be evaluated on its own, reasonably contemporaneous with the assertion of the claim, and upon facts present in the record. Since there was no basis in the record for holding the public defender system was presently adequate to meet the requirements of Johnson v. Avery, supra, and since there was no finding in the alternative that the Medical Center law library was adequate, we remanded Noorlander’s petition for an evidentiary hearing to establish the adequacy of one or the other of those alternatives under Johnson v. Avery, supra. The final disposition of Noorlander’s claim will similarly resolve the claims here presented by Kirby.
We are concerned that Judge Lay would translate our opinions in Noorlander v. Ciccone, supra, and Knecht v. Gillman, 73-1374, 488 F.2d 1136 (8th Cir., 1973), into something that they are not. We did not hold in either case that a District Judge can delegate authority to a magistrate to hold evidentiary hearings or trials in civil rights actions under 42 U.S.C. § 1983. To the contrary, we expressly refrained in Knecht from expressing an opinion on the validity of a court rule which would permit such delegation. We simply held that a District Court may, pursuant to a court rule, delegate to a magistrate the power to hold preliminary evidentiary hearings in federal and state habeas corpus matters. We expressly stated that the delegation must be by court rule.
Contrary to the suggestions of Judge Lay, some decisions of the magistrate, including those concerning discovery and production of witnesses, are subject to de novo review pursuant to the rule if such review is requested within ten days from the date the order is made.
Judge Lay argues that the procedures approved in Noorlander will not simplify or add economy or efficiency to the judicial process. The facts tend to disprove that assertion. Magistrates working under the rule have successfully resolved many factual disputes leaving the court with the sole task of deciding cases. Moreover, the large backlog which existed at the Springfield Medical Center has been substantially eliminated through the use of the magistrate and the public defender system.
Finally, we cannot agree that the rule, as approved by this Court, delegates essential decision-making power to the magistrate. The judge continues to be responsible for all decisions, and we would have it no other way.
For the reasons hereinbefore set forth, Kirby’s motion for appointment of counsel and leave to proceed in forma pauperis is denied.
Further proceedings in this appeal are stayed until such time as the issues presented in this case have been finally determined in the case of Noorlander v. Ciccone, supra. No briefs need be filed until further order of the Court. [Editor’s note: On February 7, 1974 the Court ordered reversal and remand for an evidentiary hearing as directed in Noorlander v. Ciccone, 489 F.2d 642.