Access to the federal courts however has apparently been defined as a constitutional right which cannot be completely overridden by prison officials. Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941). This is to preclude a situation where a prisoner could not test the validity of his conviction or his continued incarceration.
In this case there is no evidence that Henson has been deprived of reasonable access to the courts. His original petition for a writ was sent and received by the courts and presumably further documents would likewise be handled properly by the prison officials. Moreover, this complaint in question reached this court without undue delay.
Regarding his claim that his mail was intercepted, Henson's plea falls short of the mark. It is not doubted that prison officials have wide discretion in the type of mail which a prisoner may receive, send and keep. Adams v. Ellis, 197 F.2d 483 (5th Cir. 1952). The superintendents of the correctional institution moreover have no duty to see that Henson obtains a legal education in prison so that he can pursue his habeas corpus remedy. They can impose such restrictions as do not actually preclude a prisoner from filing his papers in a federal court, in order to prevent a breakdown of prison discipline. Thus, we find that Mr. Henson was not deprived of any constitutional right by one acting under color of state law.
Petitioner apparently has an available state administrative remedy. We do not suggest that this must be exhausted before resort to the federal courts in cases of this type but only that this is one more reason why the federal court should not intervene in the area of prison supervision at all except in the extreme case. (Cf. Commonwealth ex rel. Thompson v. Day, 182 Pa.Super. 644, 128 A.2d 133 (1957)), cert. den. 355 U.S. 843, 78 S. Ct. 65, 2 L. Ed. 2d 52.
We are aware of the dicta in several cases which presumably say that unless some legal materials are available to the prisoner when he has no counsel, the actual access to the courts is frustrated. See Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), cert. den. 368 U.S. 862, 82 S. Ct. 105, 7 L. Ed. 2d 59. However, this suggests that the federal courts have not diligently scrutinized every petition to ascertain whether the prisoner is lawfully incarcerated, and that the federal courts are not aware of the case law. Further, it assumes that no fair treatment will be given to the prisoner. It impliedly assumes that the prisoner is invalidly imprisoned. Further, allowing a hearing in this case would permit every prisoner in every State court to file a similar petition. Since there would be no previous record, there would be a constant parade of prisoners to the federal courts for a hearing. If the situation does arise where a prisoner is actually being deprived of the right to file a habeas corpus petition in the federal courts, the federal courts will then be ready to act. See State of Oregon ex rel. Sherwood v. Gladden, 240 F.2d 910 (9th Cir. 1957).
On the record as it now stands, it is obvious without hearing that the relief sought cannot be granted. Accordingly, the appointment of counsel is unnecessary.
And now, this 18th day of August, 1965, defendant's motion to dismiss for failure to state a claim upon which relief can be granted under F.R.Civ.P. 12(b)(6) is granted. Petitioner's motion for appointment of counsel is denied.
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