The opinion of the court was delivered by: WELSH
REPORT AND RECOMMENDATION
UNITED STATES MAGISTRATE JUDGE
This is a civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. The named defendants are Vivian Miller, the Clerk of Quarter Sessions for the Court of Common Pleas for Philadelphia County, and Whitney Burke, a court reporter. The plaintiff is Edward Johnson, an inmate at S.C.I. Waymart. He alleges that on October 25, 1993, he requested that the Prisoner Liaison Unit of the Philadelphia County Court of Common Pleas provide him with "transcripts, records and dockets" related to his prosecution and conviction in a case numbered CP# 9102-2207, 2210, 2211, 2018, 2019, 2022, and 2023. The plaintiff alleges that on one or two later occasions he made the same request to the Prisoner Liaison Unit and that those requests were ignored. The plaintiff also alleges that, as a result of not obtaining the papers he requested, he was denied access to the courts and that his direct appeal was impeded. As relief, he requested that the defendants be enjoined from denying him his right of access to the courts and an award of money damages.
The defendants' answer was as follows:
The Defendants admit that the Plaintiff filed a request for materials related to his criminal case. By way of further answer, the defendants aver that the requested notes of testimony are in the process of being completed and will be provided to the Plaintiff in the near future. Additional information requested is not presently in the possession of the Defendants. Defendants will endeavor to locate the additional information and provide it to the plaintiff as soon as possible.
The defendants also raised the affirmative defense of qualified immunity.
Discovery closed on March 10, 1995. The plaintiff filed a discovery motion on March 17, 1995, to which the defendants have not responded. This motion is the subject of a separate Memorandum and Order which will be filed today. The defendants filed a motion for summary judgment on April 7, 1995, to which the plaintiff has responded. The defendants' motion for summary judgment is the subject of this Report and Recommendation.
The plaintiff's complaint alleges a violation of his right of access to the courts. The Supreme Court has held that "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). In order to comply with the constitution, the access must be "adequate, effective and meaningful." Id. at 822. In Bounds, the Court did not identify the precise constitutional provision that was the source of the right of court access, hence the lower federal courts have been divided with respect to the source of the right of access. See Bieregu v. Reno, 59 F.3d 1445, 1453 (3d Cir. 1995) (surveying the Circuit Courts of Appeal). The Third Circuit has recently held that the First Amendment right to petition the government for redress of grievances is a proper source for the right of access to the courts. Id. The court also held that the Due Process Clause is a proper source for the right of access to the courts. Id. at 1453-54.
Examples of matters which are ancillary to the right of court access are a prison's failure to provide free pads, pens, pencils, postage and photocopying to prisoners who had sufficient funds to pay for them and a prisoner being forced to wait ten days to have a document notarized. Id. (citations omitted). The adequacy of a prison law library is central. Id. (citing Peterkin v. Jeffes, 855 F.2d 1021, 1039, 1041-42 (3d Cir. 1988)). In Bieregu, the court held that repeated violations of the confidentiality of a prisoner's incoming court mail is more central than ancillary and that no actual injury need be demonstrated. Id.
The question presented in this case is whether the plaintiff's complaint regarding the defendants' failure to provide him with transcripts and documents related to his criminal trial for over fifteen months
is central to or ancillary to his right of access to courts. In making such a determination, this court does not write on a clean slate. The Supreme Court has long held that an indigent inmate is entitled to receive free transcripts of his criminal proceedings, or their functional equivalent, in order to appeal or collaterally attack his conviction. Roberts v. LaVallee, 389 U.S. 40, 42, 19 L. Ed. 2d 41, 88 S. Ct. 194 (1967) (per curiam); Draper v. Washington, 372 U.S. 487, 496-500, 9 L. Ed. 2d 899, 83 S. Ct. 774 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 216, 2 L. Ed. 2d 1269, 78 S. Ct. 1061 (1958) (per curiam); Griffin v. Illinois, 351 U.S. 12, 19-20, 100 L. Ed. 891, 76 S. Ct. 585 (1956). The holdings in those cases were driven by the need to ensure that indigent defendants could pursue as adequate an appeal as moneyed defendants. See e.g. Griffin, 351 U.S. at 17-18. However, the Court also noted that transcripts or their functional equivalents were necessary for the defendants to have a basis for appeal. See e.g. Draper, 372 U.S. at 494-97.
This court cannot ignore the Supreme Court's precedent regarding an inmate's need for transcripts in order to pursue an appeal and is compelled to conclude that the matter complained of is more central than ancillary to the right of court access. Further, by comparing those matters which the Third Circuit has found to be central with those matters which the Third Circuit has found to be ancillary, the court is of the view that transcripts and other documents related to a criminal trial are more analogous to the central matters than the ancillary ones. Since the court has concluded that the matter ...