This case is a sequel to United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2 Cir.), cert. denied, 396 U.S. 847, 90 S. Ct. 81, 24 L. Ed. 2d 96 (1969), in which we held that the State of New York should afford Schuster a full hearing on the question of his sanity. The disturbing chronicle of Schuster's conviction, imprisonment, and subsequent transfer to Dannemora State Hospital is fully narrated there, and we mention here only those events which have since transpired. At the time of oral argument in the present appeal Schuster's sanity hearing had not yet been concluded, prinmarily because the State has contested the venue chosen by Schuster. Though we realize that the State may encounter difficulties if all the inmates of Dannemora are permitted to choose venue, and though we do not impute to the State any deliberate desire to delay Schuster's hearing, we wonder why the State could not have waived this venue issue in view of the special circumstances here.

The present case concerns Schuster's attempts to obtain legal research material to aid him in his efforts to be released from Dannemora. In September 1968, Schuster, who then had $75.00 in spendable assets, requested permission from Dr. Herold, the then director of Dannemora, to use $40.00 of his funds to establish a credit with West Publishing Company for the purchase of legal materials. This request was denied.

Schuster then petitioned the Clinton County Court for an order directing Dr. Herold to allow him to make the desired withdrawal of funds, this time naming $50 as the amount to be transferred. This petition was denied, apparently on the basis of a telephone conversation in which Dr. Herold stated that Dannemora had a substantial law library and that Schuster had ready access to it.

In November 1968, Schuster filed the present application in the United States District Court for the Northern District of New York pursuant to 28 U.S.C. 1343(3), alleging that there was no substantial law library at Dannemora and that Dr. Herold's refusal to allow him to purchase and retain law books was a deprivation of his constitutionally protected right of access to the courts guaranteed by the due process and equal protection clauses of the Fourteenth Amendment. The application requested the issuance of an order directing Dr. Herold to permit petitioner to use cash from his personal account for the purchase of law books and other legal materials, to provide petitioner with a list of law books in Dannemora's inmate library, and to permit petitioner to borrow and use such books under reasonable conditions and for reasonable periods of time. Dr. Herold, although duly served with a copy of petitioner's application, chose not to respond thereto; instead he wrote a letter to Judge Port reiterating his previous statement to the state courts that Dannemora had an 'extensive law library.'1 After this letter was received by Judge Port, he dismissed Schuster's application without granting a hearing upon the petition. This appeal followed.

The deputy director of Dannemora, in a letter to Schuster's appointed counsel on this appeal, revealed that the 'extensive law library' of which Dr. Herold had boasted consisted of six works,2 two of which could not be removed from the Supervisor's office. Some time after Schuster's petition was dismissed Dr. Herold was replaced as Director of Dannemora by Dr. Paul C. Agnew, and Dr. Agnew, apparently realizing the absurdity of the position taken by his predecessor, wrote a letter to Schuster granting him permission to use any of his available funds to purchase legal materials and according him unlimited access to the six works in the Dannemora library.

Thus it appears that Schuster has received the relief which he sought below. Although he argues that there is no guarantee that Dr. Agnew will adhere to the position taken in his letter, Dr. Agnew has shown no indication of bad faith, and we cannot properly impute Dr. Herold's bad faith to Dr. Agnew.

Schuster also argues on appeal that the lack of adequate library facilities at Dannemora deprives him of access to the courts. This claim was not presented in his petition to the court below.3 We readily acknowledge that indigent prisoners are often at a disadvantage in preparing legal papers and that serious constitutional questions may be raised when state action interferes with the preparation of petitions to the courts. See Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). However, the question which Schuster now for the first time poses upon appeal is of first impression in this circuit, and its resolution should await a full hearing in the district courts.

Therefore, as Schuster only claimed in his petition that there was active state interference with his access to legal materials, a claim now fully met by the changed attitude at Dannemora, we must dismiss the present appeal as moot.4