Paul B. Owens v. Joseph R. Brierley

462 F.2d 125, 1972 U.S. App. LEXIS 9167

• Court: Court of Appeals for the Third Circuit
• Decided: June 6, 1972
• Docket: 71-1513
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

On January 9, 1971, appellant filed a complaint seeking injunctive relief under 42 U.S.C. §§ 1981, 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), against a Pennsylvania warden, asserting Sixth Amendment constitutional deprivation because of the warden’s refusal to permit appellant to consult with his counsel in privacy concerning “a criminal action in the United States District Court for the Middle District of Pennsylvania, Indictment No. 14727,” wherein appellant was the defendant. He alleged that the Pennsylvania state prison regulation requiring examination of prisoner mail by authorities so abridged his right to private consultation with counsel as to deprive him of the right to the effective assistance of counsel. The district court dismissed the complaint, which asked for an injunction “until plaintiff’s indictment has been disposed of in the United States District Court for the Middle District of Pennsylvania.” This appeal followed.

We will affirm the judgment of the district court because we are persuaded that the underlying issue is now moot. Following a plea of guilty in the Middle District criminal proceeding, appellant was sentenced on Aril 27, 1971. No appeal was taken to this court from the judgment of sentence within the jurisdictional time provided in F.R.A.P. 4(b). That criminal proceeding has therefore been terminated. Since the injunction was requested only until the “indictment [was] disposed of,” an event which has already occurred, it is impossible for this court to grant the requested relief.

The judgment of the district court will be affirmed.