United States District Court, W.D. Pennsylvania
November 22, 2005.
DAVID W. MITCHELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: KIM GIBSON, District Judge
MEMORANDUM OPINION and ORDER
This matter comes before the Court on David W. Mitchell's
(hereinafter "Petitioner") Petition for a Writ of Mandamus
(Document No. 1), the United States' (hereinafter "Respondent")
Response thereto (Document No. 4), and the Petitioner's Response
to the United States Response to Petitioner's Writ of Mandamus
(Document No. 5) (hereinafter "Response").
The Petitioner was given the deadline of May 6, 2006 to file a
motion to vacate sentence pursuant to 28 U.S.C. § 2255. See
Document No. 66 at Criminal No. 04-7-1J.*fn1 Subsequently,
the Petitioner filed a one page document entitled "WRIT OF
MANDAMUS" wherein the Petitioner, as a federal prisoner, wrote in
pertinent part the following:
TO HIS HONORABLE KIM R. GIBSON:
This WRIT is being filed pro-se by the defendant. Your honor on May 20, 2005, you gave an order
pertaining to a pro-se petition for an extension of
time to file post sentence motions (dockument [sic]
Your order stated that the defendant shall file said
motion to vacate sentence under 28 U.S.C. § 2255 on
or before 5/6/2006.
The defendant is incarcerated in the Somerset Co.
Jail. The law library is inadequate for the defendant
to file said motion under 28 U.S.C. § 2255.
The usual practice at the Somerset Co. Jail is if the
legal material needed is not available in the jails
[sic] law library they go over to the law library at
the Somerset Co. Court house [sic] and copy the
materials needed for the inmates.
The materials needed are not in the jails [sic] law
library so the defendant requested that the legal
material be retrieved from the Somerset Co. Court
house. [sic] This request was denied because the
material needed is 400± pages and they will not copy
that many pages. The defendant then requested that
the material needed be signed out of the law library.
This request was also denied.
The deputy warden stated that they don't have any
obligations to provide the material needed to file
The defendant believes the jail should have an
adequate law library and provide access to the courts
The defendant requests this court command that the
material needed be provided by the Somerset Co. Jail.
The warden is stopping the defendant from complying
with the order given on May 20, 2005. In turn the
county jail is in violation of the order [sic] Thank
you for your time and consideration [sic] in this
The Petitioner in his Response describes the books contained in
the law library in the Somerset County Jail, only one of which
("West law Pa. Rules of federal court") appears to pertain to
federal law, practices or procedures.*fn2
then refines his vague request made in his original petition:
"The material that was requested was one copy of 28 U.S.C. § 2255
and the accompanying rule governing section 2255, one copy of a
forms and commentary book." Response, p. 4. The Petitioner
further requests that his Response be considered an amendment to
his petition if the original petition be denied and permit an
amendment to be made. Response, p. 5. The Court notes that the Petitioner has filed a "Motion to
Vacate Sentence and Set Aside Guilty Plea" and accompanying brief
in support (Document Nos. 79, 80 at Criminal No. 2004-7J).
However, the Court does not find that this renders the present
matter moot as the Petitioner has not indicated that he has been
given access to the requested materials as of the date of this
Memorandum Opinion. Moreover, it is clear that from a brief
glance at his motion, the Petitioner typed the motion himself and
did not employ the form of motion for a Motion to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal Custody found
in the appendix to 28 U.S.C. § 2255.*fn3
The Petitioner is
still within the time limit provided for filing a motion to
vacate, and access to these requested materials may provide
assistance to him in a manner that may allow him to amend the
motion he has filed. The Court notes that it will not consider
the substance of the Motion to Vacate Sentence and Set Aside
Guilty Plea until after issuance of this opinion. The Court will
grant the writ of mandamus.
Jurisdiction over the Petitioner's Petition is proper pursuant
to 28 U.S.C. §§ 1331 and 1361. 28 U.S.C. § 1361 states that
"[t]he district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee
of the United States or any agency thereof to perform a duty owed
to the plaintiff." This Court determines that, as to the
incarceration of federal prisoners, the Somerset County Jail is a
federal agency, as the federal government has control over the
jail's incarceration of federal prisoners pursuant to contract.
This Court has previously determined that the presence of federal
control is the determining factor regarding whether an entity is
a federal agency for the purpose of establishing jurisdiction under
28 U.S.C. § 1361. Nguyen v. United States Catholic Conference,
548 F.Supp. 1333, 1338-39 (W.D. Pa. 1982). Accordingly, jurisdiction
is proper pursuant to 28 U.S.C. § 1361.
Alternatively, jurisdiction is also proper pursuant to
28 U.S.C. § 1331, federal question jurisdiction. Federal question
jurisdiction exists where an issue of federal law "appears upon
the face of the complaint." Difelice v. Aetna U.S. Healthcare,
346 F.3d 442, 445-46 (3d Cir. 2003). This Court notes that it
appears on the face of the Petitioner's Petition that he is
raising a constitutional issue regarding his right to access to
The Petitioner asserts that he requested copies of
28 U.S.C. § 2255, "the accompanying rule governing section 2255" and "one
copy of a forms and commentary book."*fn4 (Document No. 5).
The Petitioner claims that these items are not available to him
in the jail's law library, but he also recognizes that he cannot
prove their absence other than to assert that his requested items
are not present. The Petitioner asserts further that his request
to obtain these materials from the Somerset County Courthouse Law
Library was denied because they exceeded 400 pages and such a
number of copies would not be permitted to be made and the actual
book was not permitted to be removed from the Courthouse Law
Library. (Document Nos. 1, 5). This Court has the authority to issue a Writ of Mandamus
pursuant to the All Writs Act. 28 U.S.C. § 1651(a). The Act
states that "[t]he Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages
and principles of law." Id. The Court will now examine the
standard for issuing a Writ of Mandamus.
According to the Supreme Court, "[t]he extraordinary remedy of
mandamus under 28 U.S.C. § 1361 will issue only to compel the
performance of a `clear nondiscretionary duty.'" Pittston Coal
Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 424,
102 L. Ed. 2d 408, 425 (1988) (quoting Heckler v. Ringler,
466 U.S. 602, 616 (1984)). The Petitioner must show that he has no other
adequate means to attain the relief he desires and that he has a
clear and indisputable right to the writ. See Glenmede Trust Co.
v. Hutton, 56 F.3d 476, 482 (3d Cir. 1995). Once the Petitioner
has made such a showing, it is still within the discretion of
this Court to determine whether to issue the writ. See id.
The Petitioner asserts that he has a constitutional right to
the materials he requests. (Document No. 5). Indeed, the
materials requested consist of the statute and accompanying
annotations and rules addressing the legal vehicle by which he is
able to file a motion to vacate sentence. Although the Petitioner
has filed a motion to vacate, the Court cannot trust that any
legal argument therein provides a sufficient basis to allow him
to succeed without the basic guidance provided by the annotated
version of 28 U.S.C. § 2255, the statute establishing the
procedure and right to file a motion to vacate sentence. Being
denied this material as a pro se petitioner at this stage
prevents the Petitioner from addressing the potential legal
arguments that could allow him to obtain a possible vacation of his sentence. In the Court's view, to deny
such access to necessary legal materials is equivalent to denying
the Petitioner access to the Court itself. Therefore, the
Petitioner's meaningful access to this Court is at issue, and
such a right is clearly protected by law. Lewis v. Casey,
518 U.S. 343, 349-355, 116 S.Ct. 2174, 2179-2182, 135 L.Ed.2d 606,
616-620 (1996). Accordingly, even if library materials were
routinely made available to the Petitioner by Somerset County
Jail personnel, but denied to him in this instance for the reason
that excessive copies would be needed thereby resulting in a
denial of the Petitioner's right of access to the courts, then
the Petitioner has met his burden to show that he has a clear and
indisputable right to this writ, which will compel a "clear
nondiscretionary duty." Additionally, the Court notes that the
Petitioner has no other means of obtaining these materials other
than by court order, i.e., this extraordinary writ.
The Petitioner asserts that he has not been provided access to
28 U.S.C. § 2255 and accompanying annotations, rules and form.
This Court notes that the Petitioner was denied access to a copy
of the information sought because the number of pages requested
was deemed to be too numerous and subsequently the Petitioner's
alternate request for the actual volume containing the requested
information was also denied. As a result, the Petitioner has
attempted to simplify his request for numerous copies, but was
unable to limit his copying request when his request to review
the actual material sought to be copied was denied to him.
Therefore the Petitioner cannot limit his copying request when he
is without access to even review the material sought and is
without any independent personal knowledge of the contents of the
volume sought. See Corgain v. Miller, 708 F.2d 1241, 1250
(7th Cir. 1983) (noting the "Catch-22" created by this
photocopying system); Rich v. Zitnay, 644 F.2d 41, 43 (1st
Cir. 1981) (same). It has been said that: [l]egal research often requires browsing through
various materials in search of inspiration; tentative
theories may have to be abandoned in the course of
research in the face of unfamiliar adverse precedent.
New theories may occur as a result of a chance
discovery of an obscure or forgotten case. Certainly
a prisoner, unversed in the law and the methods of
legal research, will need more time or more
assistance than the trained lawyers in exploring his
case. It is unrealistic to expect a prisoner to know
in advance exactly what materials he needs to
Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978).
This Court notes that it has consulted volumes of treatises and
statutes totaling in the hundreds of pages in the course of
addressing this Petition. In light of the availability of these
materials, this Court has printed and copied a few hundred pages
from various cases when addressing the Petition sub judice.
Based upon the Petitioner's description of the jail library, it
is clearly inadequate for his research requirements. This Court
cannot fathom how the Petitioner could possibly prepare a
28 U.S.C. § 2255 Motion to Vacate without access to a volume of
United States Code Annotated or United States Code Service
containing 28 U.S.C. § 2255 and its accompanying annotations,
rules and form.*fn5
This Court observes that courts have upheld jail library
systems where the prisoner's ability to photocopy legal materials
was limited. Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.
1980). However, in the above-cited case, the prisoner's ability
to make photocopies was limited by requiring that he leave the
materials with the librarian to be photocopied; he was not denied
access to the legal materials. Id. When addressing a 300-page
per annum photocopying limit, one court noted that, although
prisoners do not have a right to unlimited photocopying, the
"photocopying limit impinges directly on the plaintiffs' ability
to conduct legal research because the only means by which they
can obtain legal materials is by photocopying." Walters v.
Thompson, 615 F.Supp. 330, 340 (N.D. Ill. 1985).
The Court is cognizant that prisoners could abuse a system in
which they are entitled to unlimited photocopying; however, such
an abuse could be thwarted by ordering the Warden to provide the
Petitioner with access to reasonably necessary legal materials in
whatever form is most convenient to the warden, whether it be by
photocopying, a book, or via a computer-based system, such as
Westlaw or LexisNexis. This Court further observes the
Petitioner's difficulty in proving the inadequacy of the jail
library considering that he is not an attorney or a law
librarian; however, this problem can be abated by ordering that
the Petitioner be provided with specific materials. If such
materials are already available to the Petitioner in the jail
library, then the jail has incurred no burden.
Accordingly, in order to assure that the non-discretionary,
ministerial duties owed to the Petitioner are provided by the
Somerset County Jail, this Court orders the Warden of the
Somerset County Jail to provide the Petitioner with access to the
text of 28 U.S.C. § 2255 as well as the accompanying annotations,
rules and form of motion that are available to the Somerset
County Jail through the Somerset County Courthouse Law Library
and its available sources.
An appropriate Order follows. AND NOW, this 22nd day of November, 2005, this matter
coming before the Court on the Petitioner's Petition for a Writ
of Mandamus (Document No. 1), the Respondent's Response thereto
(Document No. 4), and the Petitioner's Response to the
Respondent's Response (Document No. 5), IT IS HEREBY ORDERED
THAT the Petitioner's application for Writ of Mandamus is
GRANTED and the Warden of the Somerset County Jail is directed to
provide the Petitioner with access to a copy of 28 U.S.C. § 2255
and accompanying annotations, rules and form of motion that are
available to the Somerset County Jail through the Somerset County
Courthouse Law Library and its available resources in whatever
written format (book, photocopy or computer printed copy) is
preferred by the Warden or his personnel; and IT IS FURTHER
ORDERED THAT the Clerk of Court mark this case closed as the
Petitioner's Writ has been granted.
© 1992-2005 VersusLaw Inc.