Seitz, Chief Judge, and Hastie and Hunter, Circuit Judges.
Rance Lee Via seeks damages but not injunctive relief under the Civil Rights Act for alleged infringements by the defendants of his constitutional right to counsel. The alleged infringements occurred while Via was confined in the Lancaster County Prison awaiting trial on a state felony-murder charge. The defendants are Kenneth S. Cliff, Warden of the Lancaster County Prison, Edward Hutton, Deputy Warden, Robert H. Brighton, Captain of the Guards, and Lancaster County, Pennsylvania.*fn1 The district court granted summary judgment for the defendants after considering the pleadings of both parties and an affidavit submitted by Via. Via appeals the summary judgment. Throughout his district court proceedings and this appeal, Via has been in prison, without counsel, and without money.
In his complaint filed December 18, 1969 and in his affidavit filed October 21, 1970, Via alleges that "the defendants . . . acting under the color of law deprived [him] of private consultation with his . . . attorneys on June 13th 1967, and again on June 20th 1967, by refusing to permit [his] attorneys to communicate with [him]" in violation of his constitutional right to counsel in that:
(A) On June 13, 1967: Six days before the start of his trial (June 19, 1967), Via's counsel visited Via in the afternoon at the prison to review his case. After about 50 minutes, Captain of the Guards Brighton interrupted and told counsel to leave although he was informed that more time was needed to prepare Via's defense. Brighton interrupted several more times. Then Deputy Warden Hutton arrived. Counsel told Deputy Warden Hutton that Via was on trial for his life in one week and that counsel wanted to stay longer. Deputy Warden Hutton became angry and shouted that he did not care and that counsel must leave because the hour was up. Counsel requested to see Warden Cliff, but Deputy Warden Hutton told counsel that Warden Cliff was not interested in talking with Via's counsel. Counsel left and immediately went downtown to see Judge Wissler of the Court of Common Pleas. Judge Wissler called Deputy Warden Hutton and instructed him to permit counsel to visit Via at any time for any length of time.
After counsel had left the prison on June 13, Via was not returned to his cell. Instead, he was taken to the consultation room where he was interrogated by the police, in absence of counsel, concerning his alleged criminal conduct. Counsel had previously told prison officials that they did not want the police to see and interrogate Via without counsel being present.
(B) On June 20, 1967: On this day, the second day of Via's trial, counsel told Via in the courthouse that they would come out to the prison that evening to discuss with him some important aspects of his case. Counsel arrived at the prison at 8:10 p.m. A prison official (known to Via by sight but not by name) denied counsel admission to the prison. Thus, Via did not have the consultation with his counsel that evening in preparation for his continued defense at trial.
The next day counsel informed the state trial judge that they had been denied admission to the prison the evening before. The judge recessed the trial for the afternoon so that Via and his counsel could have the consultation which was prevented the previous evening. Via's counsel agreed that this recess was sufficient time for the needed consultation.
After the filing of Via's complaint on December 18, 1969, the defendants' answer, and Via's reply, the defendants filed on July 21, 1970 a motion for "judgment on the pleadings." The district court ordered consideration of this motion and stated Via could file a brief and affidavits in opposition to the motion. On October 21, 1970, Via filed his affidavit which added specificity to the allegations in his complaint. On December 14, 1970, Via filed a brief in opposition to the defendants' motion.
On February 5, 1971, Via submitted to the district court four very detailed interrogatories individualized as to each of the four defendants. These interrogatories presented questions as to the conduct of each of the defendants and as to both the June 13 and June 20 incidents. The defendants filed objections to the interrogatories and requested the district court to rule on their motion for judgment on the pleadings before being required to answer the submitted interrogatories.
Via filed a cross motion which asked the court not to rule on the defendants' motion until after the trial. Additionally, Via submitted a supporting affidavit, in which he stated that, because of his poverty and imprisonment, he could procure neither affidavits of persons who had personal knowledge of the facts essential to his case nor an official record of his state trial.
The district court granted summary judgment in favor of the defendants. The district court treated the motion for judgment on the pleadings as a motion for summary judgment pursuant to F.R.Civ.P. 12(b) & 56 because the court ...