The opinion of the court was delivered by: SNYDER
Plaintiffs, Joseph Carl Brown, Jr., Ralph Carter, James E. Bush, et al., filed this class action against Allyn R. Sielaff, The Commissioner of Corrections of the State of Pennsylvania, Gilbert Walters, the Warden of the State Correctional Institution at Pittsburgh, Pennsylvania, and Joseph Angert, the Educational Director of the State Correctional Institution at Pittsburgh, alleging that the civil rights of said plaintiffs have been violated by the defendants who allegedly have conspired to prevent their access to both the Federal and State Courts. Plaintiffs' basis of their allegations is that the above named defendants refuse to purchase new law books for the prison library and that such are essential for the class named as plaintiffs to perfect their numerous appeals of conviction and to initiate civil actions which the law allows them.
The relief sought by plaintiffs is an Order of this Court directing the defendants to acquire numerous updated volumes of various legal books for plaintiffs' use and also to supply plaintiffs with facilities to reproduce copies of briefs and documents. By Order of Court of October 19, 1972, plaintiffs were permitted to file their cause of action in forma pauperis with costs to be borne by the United States. By Order of Court of October 25, 1972, the United States Marshal was directed to serve on the defendants a copy of that order, together with a summons and a certified copy of the complaint upon the named defendants. On November 16, 1972 defendants filed their motion to dismiss alleging inter alia that the matters referred to in the complaint are the sole concern of the Pennsylvania State Prison. A conference on nine (9) civil actions filed by Plaintiff Brown was scheduled to be held before the Honorable Joseph F. Weis, Jr. on December 26, 1973 at 2:00 P.M. At that time Attorney Stanley Stein represented the plaintiff and attended the conference on the plaintiff's behalf. On February 5, 1973 the plaintiffs here filed a motion seeking that a new conference be held alleging that the plaintiffs had no knowledge of the prior conference, and that:
"(3) The plaintiffs contend that to hold a conference relating to a civil action, only permitting agents of the state to attend, is a direct violation of their constitutional rights."
"1. Stanley Stein, Esquire, appointed by this court on other actions filed by Joseph Brown, has not been appointed in the case set forth above. Also, it should be noted that his assistance is not wanted or needed."
On February 14, 1973, the plaintiffs' request for a conference on this matter was denied. The Court also denied plaintiffs' application for a certificate of probable cause. Since the last pleadings and orders have been entered, the Honorable Joseph F. Weis, Jr. has been elevated to the Third Circuit Court of Appeals and the undersigned was elevated to the seat on the Bench of the Western District formerly occupied by Judge Weis. Hence, due to this situation, the case of Joseph Carl Brown, et al. vs. Allyn Sielaff, et al. at Civil Action 72-879 has been assigned to this member of the court for disposition.
Plaintiffs seek to bring their action under the jurisdiction of the Civil Rights Act alleging that because of the lack of up-to-date law books in the prison library, they are denied access to the courts. If such a proposition were so, one would not know it by viewing the record of Plaintiff Brown in the docket of the Court for the Western District of Pennsylvania. Mr. Brown has brought actions at the following docket numbers: Civil 70-559, 70-861, 70-940, 70-958, 70-980, 70-981, 70-982, 70-985, 70-1284, 71-150, 71-554, 71-717, 71-925, 71-1064, 72-13, 72-109, 72-193, 72-754, 72-755, 72-756, 72-879, 72-1109, 73-20, and Miscellaneous 4941, 4952, 5060, 5086, 5091, 5092, 5113, 5171, 5177, 5194, 5239, 5313, 5314, 5315, 5331, 5348, 5365, 5371, 5698 and 5748. In addition, as of this date a new civil action which has been listed at Miscellaneous 5784 has been brought to the attention of the Court.
Plaintiff Bush has brought a habeas corpus action at Civil 69-1389 and a civil rights action at Civil 72-772. Plaintiff Carter has filed a civil rights action in this court at Miscellaneous 4917.
In their Complaint, Plaintiffs merely assert that:
"(9) The defendant, Joseph Angert, has absolutely refused to order any law books for the inmate library at the State Correctional Institution. Plaintiff Brown was informed by the institutional librarian, Mr. Chess, that he had received strict orders from defendant Angert to the effect that he was to order no law books for the library."
Initially, we must point out that the mere fact that the law library at the prison is not up-to-date is no basis for bringing a civil rights action in the Federal District Court. The Third Circuit in Gaito v. Prasse, 312 F.2d 169 (3d Cir. 1963) held that allegations by a prisoner that he could not take an appeal because of lack of access to the prison library were no basis for predicating a complaint on the Civil Rights Act, 28 U.S.C.A. § 1343 and on 42 U.S.C.A. § 1983. The Court in Gaito v. Prasse, supra, outlined the administrative procedure available to the plaintiffs at 170-171:
"There were rules and regulations adopted by the Commissioner of Correction of the Commonwealth of Pennsylvania, and that these regulations permitted the appellant to have access to law books and legal material, but stated that prisoners could not retain the materials for their own use, though they might use them in their cells when necessary for the prosecution of their own case, and they could not be disseminated to other inmates. Further, that this was merely an administrative procedure and that if the appellant did not secure the proper redress, the procedure was to appeal to the Warden of the Institution, next, present the matter to the attention of the Diagnostic ...