Magee v. Waters

• Decision Date: 04 February 1987
• Docket Number: No. 85-6024,85-6024
• Parties: Joseph Emmett MAGEE, Appellant, v. G.W. WATERS, Sheriff, Portsmouth City Jail, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 451

810 F.2d 451

Joseph Emmett MAGEE, Appellant, v. G.W. WATERS, Sheriff, Portsmouth City Jail, Appellee.

No. 85-6024.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1986.

Decided Feb. 4, 1987.

Roy W. Ferguson, Jr. (Wharton, Aldhizer & Weaver, Harrisonburg, Va., on brief), for appellant.

Stuart E. Katz, Asst. City Atty., Portsmouth, Va., for appellees.

Before WINTER, Chief Judge, and WIDENER and CHAPMAN, Circuit Judges.

WIDENER, Circuit Judge:

This is an appeal from an order of the district court dismissing the plaintiff's complaint, which we consider as an order granting summary judgment, since a motion for summary judgment was made under FRCP 56 and affidavits were filed.

The plaintiff, Joseph Magee, was confined in the Portsmouth city jail for a period of 29 days, from July 23, 1984 until August 21st of that year, as a parole violator. He was transferred on August 21st, apparently to Nottoway Correctional Center, and at some time after that to Staunton Correctional Center.

Almost two months after his transfer, on October 16, 1984 he filed his complaint under 42 U.S.C. Sec. 1983 in the district court, complaining about conditions in the Portsmouth city jail. In the initial complaint and subsequent amendments and like papers, he complained of lack of adequate medical care, denial of access to the courts on account of lack of library facilities and denial of free envelopes, and failure of the jail to furnish proper security for his personal property. He requested the appointment of an attorney, class relief, injunctive relief, and monetary damages. The district court, as we have noted, dismissed the complaint. On appeal, the only issues which are made are with respect to the adequacy of the library, failure to appoint counsel, and class certification.

At the outset, we should say that neither the district court's failure to certify a class nor its failure to appoint an attorney is an abuse of discretion, so those actions of the district court are affirmed.

Because the prisoner has been transferred, his request for injunctive relief is moot. See Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

With respect to the adequacy of library facilities, the plaintiff has not shown the nature of any complaint he may have had which he wanted to research, but it is undisputed that he did make a request to the jailer for law books. He requested permission for a sister to bring two volumes of the Virginia Code and "one each federal," apparently referring to one volume of the Federal Reporter. Although the jail policy is that the only personally owned books or publications permitted in cells are those shipped directly from the publisher, the sheriff later delivered to him in his cell two volumes of the Virginia Code, apparently the ones which he wanted. The plaintiff complains that he was only allowed one hour a week in the jail library to do his legal research and that the only law books in the jail library were the volumes of the Virginia Code, of which "some" were missing. Obviously, if any of the volumes were missing, they were not the two he wanted, for they were delivered to the plaintiff in his cell by the sheriff on August 16th, despite the jail regulations to the contrary, so any volumes of the Virginia Code which may have been missing are of no consequence here in any event.

We do not think the plaintiff was deprived of any constitutional right.

In discussing a situation quite like the one before us, the Fifth Circuit, in Cruz v. Hauck, 515 F.2d 322 (5th Cir.1975), took account that county jails, as is the city jail here, are generally short-term holding facilities confining individuals serving misdemeanor sentences or awaiting trial or transfer to prisons, and that, in the case of individuals not awaiting trial, the confinement may be so brief as to make it reasonable for them to await transfer to a permanent facility before petitioning the courts. Thus, the court reasoned "... in determining whether all inmates have adequate access to the courts, the district court need not consider those inmates whose confinement is of a very temporary nature or for purposes of transfer to other institutions. The district judge should have little difficulty, realizing the fundamental nature of the right of access, in determining those cases where the brevity of confinement does not permit sufficient time for prisoners to petition the courts." 515 F.2d at 333. In addition, courts have required a showing by a complaining prisoner of actual injury or specific harm to him before a claim of lack of access to the courts will be sustained. In Hudson v. Robinson, 678 F.2d 462 (3d Cir.1982), the court held that a 10-day delay in notarizing a document did not satisfy the actual injury requirement, and, in Cookish v. Cunningham, 787 F.2d 1 (1st Cir.1986), the court held that a denial of access to the law library during a quarantine period of two weeks did not satisfy a requirement of specific harm.

In our case, Magee was a temporary occupant of the jail, only awaiting transfer. He advises us of no specific problem he wished to research and of no actual injury or specific harm which has resulted to him by his limited access to the jail library or its limited contents.

In such a situation, we do not believe that he has been denied any constitutional right within the meaning of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). It is true that in Williams v. Leeke, 584 F.2d 1336, 1343 (4th Cir.1978), we held that three 45-minute intervals for research, each week, were insufficient for a prisoner facing "a substantial sentence of confinement," but we did not hold that a prisoner, housed only temporarily in a local jail, can maintain such a suit absent a showing of specific harm or actual injury. Thus, the limited access of the plaintiff to the library and its limited contents are matters which we need not and do not consider. In that respect, we note that the Nottoway and Staunton prison facilities apparently have adequate libraries or attorneys to advise the inmates for Magee has had no difficulty in litigating his claims, upon transfer, from...