The opinion of the court was delivered by: CURTIN
Marion Stevenson filed an application with this court pursuant to Title 42, United States Code, Section 1983. He was granted permission to proceed in forma pauperis pursuant to Title 28, United States Code, Section 1915, for the limited purpose of allowing the court to determine the sufficiency of his complaint. Stevenson alleged that, after legal papers belonging to him were found in the cell of another prisoner, he was disciplined by the forfeiture of two days of good time. Respondent claims Mr. Stevenson was punished for a violation of Rule 21 of the Inmates' Rule Book which provides:
"Inmates are prohibited, except upon approval of the Warden, to assist other inmates in the preparation of legal papers."
This court, relying on Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), and Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), dismissed his complaint on the ground that "the state may impose reasonable restrictions upon prisoners in the use and handling of legal papers. Petitioner fails to allege facts sufficient to warrant relief."
Mr. Stevenson appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals remanded petitioner's application to this court with the direction "to hold a hearing as if the petition were a petition for the issuance of a writ of habeas corpus, and, if requested, for the assignment of counsel", and further ordered:
"It is suggested that the People should be given an opportunity to submit a memorandum discussing the applicability of Johnson v. Avery, 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969)."
Stephen Carter filed a petition alleging that his Eighth Amendment rights were violated when he was reduced in "grade standing" and lost "good time" as a result of his advising and preparing petitions for fellow inmates. This court ordered the respondent to show cause why petitioner's complaint should not be filed pursuant to Title 28, United States Code, Section 1915. Richard F. Griffin, attorney, was assigned to represent each of the defendants. The petitioner, Marion Stevenson, expressly declined the offer of Mr. Griffin's assistance and continued to represent himself during these proceedings.
At the hearing, the court considered the testimony of Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Emmett Cochrane, Chief Clerk of Attica, and petitioner, Marion Stevenson. The court also considered affidavits of Vincent Mancusi, Manuel T. Murcia, counsel to the Commission of Corrections, Leon J. Vincent, Deputy Warden of Attica, Bruce K. Carpenter, at one time an attorney employed by the Legal Aid Bureau of Buffalo, New York, and also a letter from Nathaniel A. Barrell, Executive Attorney of the Legal Aid Bureau, Buffalo. During the hearing, the parties submitted in evidence relevant prison regulations and memoranda concerning the policy of the Department of Corrections governing legal aid to prisoners.
In answer to the court's demand for information about what steps were taken at Attica to implement Johnson v. Avery, supra, the state filed an affidavit of Mr. Mancusi which in part read:
"* * * [The] above named petitioner is, and has been, allowed if he wishes, to contact the Legal Aid Bureau, the American Civil Liberties Union, and the various law schools and law research agencies on the outside and he also may make use of this institution's law library which has a more than adequate supply of the various law books."
Manuel T. Murcia, counsel to the Commissioner of Corrections, filed an affidavit listing a summary of the legal facilities and agencies available to inmates:
"1. Inmates have access to law books and legal periodicals available in the institution library.
2. Inmates may purchase, possess and own their law books and legal periodicals.
3. Inmates have access to the courts for free copies of court decisions.
4. Inmates have access to the State Law Library (Department of Education) in Albany, New York, for free copies of court decisions.
5. Inmates may retain their own counsel.
6. Inmates may communicate with any court, Judge, government official, Bar Association, Legal Aid Society, Public Defender, court-assigned counsel, law professors and law school students.
7. An illiterate and physically handicapped inmate may request legal assistance from the institution authorities and will be provided with such assistance.
8. A pilot program has been initiated in the Auburn Correctional Institution under Professor Gray Thoron, former Dean of Cornell Law School, to provide senior law students for interviewing inmates in the institution concerning their legal problems relating to their conviction and sentence. The students under the direction of law professors will prepare legal papers in those cases warranting court action."
In addition, a memorandum of Deputy Commissioner John R. Kane, of November 24, 1969, was offered in evidence by the respondent to show what was done to render assistance to inmates. This memorandum in part read:
"Federal court orders have mandated (Johnson v. Avery) that prisoners may not be prevented from offering and giving legal assistance to other inmates. So far this department has successfully answered this problem in that we contend that our inmates have channels other than a fellow inmate from whom to solicit legal aid. This includes the Legal Aid ...