The opinion of the court was delivered by: CALDWELL
CALDWELL, District Judge.
Before the court for disposition are two motions filed on behalf of defendants in this case. The federal defendants have filed a motion to dismiss and the remaining state defendants have filed a summary judgment motion.
Plaintiff has filed timely opposition to these motions. Upon review of the entire record we have concluded that the federal defendants' dismissal motion must be granted. Moreover, since no genuine issue of material fact exists with regard to the summary judgment motion, the state defendants are entitled to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56.
On November 2, 1981, plaintiff, then an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, filed this action pursuant to 28 U.S.C. § 1331. Four defendants plus their "John Doe Subordinates" were named in the complaint: William F. Smith, Attorney General of the United States; Edward King, Governor of Massachusetts; Michael Fair, Massachusetts Commissioner of Corrections; and Louis Berman, a predecessor of Fair.
The claims in plaintiff's complaint were twofold: denial of his rights of access to an adequate law library and to the courts. Essentially plaintiff alleged that his transfer on January 5, 1981, from state custody at the Massachusetts Correctional Institution, Walpole, Massachusetts (MCI-Walpole) and ultimately into federal custody pursuant to 18 U.S.C. § 5003 led to the violation of his aforesaid rights. Plaintiff contended that because appeals were ongoing in the Massachusetts courts on his state conviction for murder and because he was involved in several matters being litigated in federal court, he was unable to prepare these matters properly once he was in federal custody in Pennsylvania. Brown subsequently was transferred to the federal penitentiary at Marion, Illinois, and in December, 1983, was returned to MCI-Walpole.
III. The Federal Defendants' Dismissal Motion
The motion filed on behalf of the federal defendants alleges that the burden is on the state (in this case, Massachusetts) rather than the federal authorities to provide state law books and/or counsel to represent plaintiff in his state appeals. Moreover, the federal defendants assert that by bringing an action against them individually, plaintiff cannot prevail unless he can demonstrate that defendants took some action or personally knew about the circumstances giving rise to plaintiff's problems. Both points raised are persuasive, but because we find the first one dispositive of defendants' motion, we shall confine our discussion to it and need not reach or address the second.
The law seems clear, at least in the Middle District of Pennsylvania and the Third Circuit, that when a transfer occurs from state custody into a federal institution located in another state the transferring state is responsible for providing an adequate law library or adequate aid from persons trained in the law of the transferring state. For example, in Clency v. Attorney General for the State of Alabama, et al., No. 82-1078 (M.D.Pa. Nov. 30, 1982), a habeas corpus case, petitioner was an Alabama prisoner who had been transferred into federal custody at Lewisburg. Even though counsel had been appointed to represent him in the Alabama courts, petitioner argued that he was constitutionally entitled to have access to Alabama law books at the federal facility. In dismissing his petition, the court stated that "while petitioner may prefer law books to appointed counsel, the decision as to which form of assistance will be provided lies with the state." Id. at 2. The court continued by observing,
It is not feasible for the Bureau of Prisons to provide or require state officials to provide legal materials for state prisoners incarcerated in federal institutions. The primary reason for this is that it would create an enormous burden mindful of the number of states and territories which have contracted to have their prisoners housed by the Bureau of Prisons . . . it can hardly be expected that each penitentiary contain legal materials for each of the fifty states . . . .
Id. at 3. See also Kivela v. United States Attorney General, 523 F. Supp. 1321, 1325 (S.D.N.Y.1981).
Basically the cases establish that the federal authorities are not responsible for providing state legal materials in federal penal institutions. The arrangement under which state prisoners are transferred into federal facilities is a contractual one effected under 18 U.S.C. § 5003. The role of the Attorney General, as delineated in subsection (a) of the statute, is to enter into transfer contracts with appropriate state officials after the Director certifies that "proper and adequate treatment facilities and personnel are available." In Howe v. Smith, 452 U.S. 473, 101 S. Ct. 2468, 69 L. Ed. 2d 171 (1981) the petitioner argued that transfers could be accomplished only for identified specialized treatment. In upholding decisions below that rejected petitioner's position, the seven member majority opinion of the Supreme Court stated,
The petitioner's reading of the statute strains the plain meaning of its language. The act of certification by the Director is nothing more than the starting point in the process of contractual negotiation envisioned by § 5003(a). Absent surplus capacity in the federal system, discussions between federal and state authorities regarding the transfer of state prisoners to federal facilities would be pointless. Once the Director certifies that a surplus capacity exists -- that is, that there is room for more inmates -- the transfer becomes a possibility. The certification ...