Arnold B. Snukals, Richmond, Va. (Brown, Bruner & Cooley, Richmond, Va., on brief), for appellant.

Alexander E. Conlyn, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty.Gen. of Virginia, Richmond, Va., on brief), for appellees.

Before WIDENER and MURNAGHAN, Circuit Judges, and GORDON,* District Judge.

GORDON, Senior District Judge.

Appellant Harris seeks reversal of the District Court's grant of summary judgment in favor of T. Don Hutto, Director of the Virginia Department of Corrections, and Richard Young, now Regional Administrator, Western Region, Division of Adult Services, in his pro se civil rights suit brought under 42 U.S.C. Sec. 1983. Harris alleges a violation of his constitutional right of access to the courts resulting from Appellees' failure to provide him with sufficient access to an adequate law library during his two and one-half years in the Richmond City Jail (the Jail). Appellant was incarcerated in the Jail in January 1976 and convicted of grand larceny in late January 1977. He remained in the Jail during the pendency of his direct appeals which were exhausted in August 1977, until his transfer to another facility in May 1978.

Appellee Young served as Acting Warden of the Virginia State Penitentiary from September 1977 to May 1978, when he moved to his present post. Hutto was Director of Corrections during the relevant period of the lawsuit.

It is undisputed that the law library in the Jail was of minimal utility prior to June 1978. Not until then did the library have any court reports. Until that date the most useful volumes appear to have been several digests and multi-volume sets on Virginia jurisprudence, which would have been wholly inadequate for researching criminal law of prisoner's rights issues. Also, the time of access given each inmate was limited severely. By July 1978, however, the resources in the library could meet constitutional muster, though the access rules may still have been inadequate (the record is unclear). See, Williams v. Leeke, 584 F.2d 1336 (4th Cir.1978), cert. denied, 442 U.S. 911, 99 S. Ct. 2825, 61 L. Ed. 2d 276 (1979).

The District Court granted Hutto's and Young's motion for summary judgment, holding that they were entitled to qualified immunity under Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978). The District Court found that the obligation of state officials to provide inmates with an adequate law library was not known to the Appellees until the Supreme Court released its decision in Bounds v. Smith,1 on April 27, 1977--some fifteen months after the Appellant had been incarcerated. For the one year the Appellant spent in the Jail subsequent to Bounds, the District Court found that the Appellant's access to the courts had not been impeded as evidenced by several habeas corpus petitions and civil suits which he had filed during that time, and the District Court held that the Appellees were entitled to immunity for a reasonable period during which they acquired books for a law library. The District Court found the fourteen month lag, from April 1977 to June 1978, to be reasonable.

I.

In review of the District Court's disposition of this case, we stop before reaching the immunity issue in order first to consider whether Appellant has named the proper parties. The Director of the Virginia Corrections Department has been found to have the statutory duty to oversee conditions, including library conditions, in both local and state penal institutions. Stinnie v. Fidler, 75 F.R.D. 462 (E.D.Va.1977); Payne v. Rollings, 402 F. Supp. 1225, 1228 (E.D.Va.1975). Hutto is, therefore, a proper party in a suit challenging the conditions in a local Virginia jail. Young is in a different position as regards this suit. As Acting Warden of the State Penitentiary from September 1977 until May 1978, he had no discernible legal obligation regarding the library at the Jail.2 Appellant had failed to allege any connection sufficient to impose such an obligation on Young. He is, therefore, an improper party, and we grant Young summary judgment on this ground. Rule 21, Fed.R.Civ.P.

The District Court found that the Appellant's access to the court had not been impeded. His having filed several habeas petitions and civil suits was taken by the court as proof that he had, in fact, had adequate access to the courts. Although this logic seems sound at first glance, it is flawed. Our concern in defining the Appellant's injury is not those complaints he filed during this period nor the allegations in those complaints; rather, our concern is those petitions and civil actions he did not file and the allegations left out of the complaints. We affirm the District Court on its second ground, that is, the Appellee Hutto is entitled to summary judgment because he may successfully claim immunity.

The Supreme Court has stated that its "main concern here is 'protecting the ability of an inmate to prepare a petition or complaint,' ' Bounds, 430 U.S. at 828 n. 17, 97 S. Ct. at 1498 n. 17 [quoting Wolff v. McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 2984, 41 L. Ed. 2d 935 (1974) ]. Several conclusions follow from this and the added statement that the right to be protected is the right to have a "reasonable adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Bounds, 430 U.S. at 825, 97 S.Ct. at 1496. Because an inmate is unable to discover his rights when library access or other access t the law is denied him, any complaint rightly alleging a present denial of access to a library or other assistance states a valid claim for equitable relief. It is unfair to force an inmate to prove that he has a meritorious claim which will require access until after he has had an opportunity to see just what his rights are. Not only unfair, it is jurisprudentially unnecessary. See, Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1977).

The second conclusion is that the best remedy for a breach of this right is equitable relief crafted to facilitate the filing of the meritorious petition or complaint.

The social cost of litigating "constitutional torts" is problematic and substantial. The efficient operation of government is endangered by the phenomenal growth in this type litigation. See, Harlow v. Fitzgerald, 457 U.S. 800, 813-19, 102 S. Ct. 2727, 2736-39, 73 L. Ed. 2d 396, 50 U.S.L.W. 4815, 4819-20 (1982). Despite the social cost, the courts and the society at large have an obligation to insure that the courthouse door is always open. Equitable relief given to any party showing that the door has been closed is the best insurance, and compensating any party who has lost the opportunity or has been delayed in petitioning the courts with a claim of prima facie merit functions to make those trying to close the courthouse door think twice and compensates the victim.

In Harlow the Supreme Court made an effort to reduce the burden of litigation on society and its public officials, stating, "[i]nsubstantial claims should not proceed to trial." Id. at 816, 102 S.Ct. at 2737. We conclude that this claim is one that should be decided on summary judgment in favor of the Appellee Hutto.

Most recently in Harlow, supra, the Supreme Court discussed the immunity to be given to public officials, and applying that analysis in this case we agree with the District Court that Hutto did not violate the "clearly established" constitutional rights of the Appellant.

The key question to be answered is, when was the law on library or attorney access for prisoners in local jails so enunciated by the courts that a Virginia official knew or should have known that those rights were established. The District Court accepted the defendants' argument that Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), published on April 27, 1977, was the point to which the Virginia state officials knew and had a duty to know of the prisioners' rights. Prior to Bounds being decided in the Supreme Court, in Peterson v. Davis, 421 F. Supp. 1220 (E.D.Va.1975), aff'd without opinion, 562 F.2d 48 (4th Cir.1978) and Collins v. Haga, 373 F. Supp. 923 (W.D.Va.1974), district courts, applying Younger v. Gilmore 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1971), held that a law library or an attorney assistance program was required in the Virginia state prisons. The trickle down time necessary for the right to adequate law library access to become "known" or "clearly established" regarding local facilities like the Richmond City Jail may seem inordinately long, running from Gilmore in 1971 to Colins in March 1974 to Bounds in April 177, but Gilmore was itself not as clear as to to the state's duties as it might have been, and in all of the cases prior to Williams, supra, the institution in question was a state facility, not a local one. There are significant differences between state and local facilities, including the average length of stay and the type of crime for which inmates are incarcerated which, taken together, reasonable support the argument that local jails, operating under limited budgets, were not required to meet the same obligations to inmates as the state facilities.3 In short, until the argument had been rejected by a court, the reasonable public official acting within his dispensing of public funds by localities, could not be said to be incorrect if he stated that the duties of local jails to their inmates were not clearly established. See, e.g., Williams, 584 F.2d at 1343 (Hall, Circuit Judge dissenting).

The court in Williams, supra, split 2-1 with Judge Hall, an able and experienced Judge, firm in the position that the Richmond Jail was distinguishable from those institutions under Bounds. It would not be fair to hold a state official liable for not fulfilling "clearly established" obligations when a federal Circuit Court of Appeals was unable to unanimously decide the same issue.

Harris complains of inadequate legal materials and of overly restricted access to those materials the Jail did have prior to June 1978. We find that the invalidity of allowing this division of research periods cannot be said to have been "clearly established" until this court's opinion in Williams. What is or is not constitutionally adequate when it comes to such questions about particular access regulations or particular books is most often a matter of guesswork on the part of a public official, and it would be unfair and inefficient to make immunity contingent on guessing correctly on such an issue.

Finally, we agree with the District Court that a law library cannot be built in one day, and therefore do not find that the lag between April 1977 and June 1978 is so long that Hutto should be stripped of his immunity. Nevertheless, we agree with some reluctance, and wish to make clear that what is reasonable must be judged for each case; because this case is affirmed from summary judgment we do not establish a safe harbor book list or implementation period. The courts will not tolerate deliberate foot dragging in the name of fiscal necessity.

The judgment of the District Court is AFFIRMED.

WIDENER, Circuit Judge, concurring:

While it is true that Hutto may be a proper party, the mere existence of a supervisory statutory duty is not enough to fix his liability for damages as we have specifically held in Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir.1977). In Vinnedge we held that Gibbs, an underling of the Director of the Department of Corrections, was not liable because he had not been personally involved. It necessarily follows that the Director of Corrections, the superior, also may not be made liable by the mere existence of a supervisory statutory duty absent personal involvement.

I concur in that part of the opinion holding that Young is not a proper party.

I also concur in that part of the opinion holding Hutto to be immune from liability except that I believe the expression of possible liability expressed on a hypothetical fact situation in note 3 is unnecessary to our decision, and accordingly I do not concur in that expression.

MURNAGHAN, Circuit Judge, dissenting:

The panel majority misconceives the law of qualified "good faith" immunity in concluding that the defendants, Richard YOung and T. Don Hutto, are immune from suit for damages under 42 U.S.C. Sec. 1983.1 The constitutional obligations of responsible state officials to provide inmates with adequate legal resources were firmly established well before the time period at issue in the case before us. In fact, the obligation had bee thrice imposed upon the very state system under challenge here in federal litigation that was completed before the plaintiff, Stanley Sylvester Harris, ever spent a moment in the Commonwealth's custody as a convicted felon. I therefore am constrained to dissent.

It has never been the law that a state official is immune from liability under Sec. 1983 so long as he or she is able to proffer a colorable, and not patiently frivolous, argument in support of the denial of a plaintiff's constitutional rights. State officials have an obligation to be diligent and vigilant when they are dealing with the constitutional rights of the citizenry. If a defendant knew of the constitutional right he was infringing, or, alternatively, if as a reasonable public official, he should have known of the constitutional obligation, the immunity defense will not lie. Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S. Ct. 2727, 2736-37, 73 L. Ed. 2d 396 (1982). "The official cannot be expected to predict the future course of constitutional law." Procunier v. Navarette, 434 U.S. 555, 562, 98 S. Ct. 855, 860, 55 L. Ed. 2d 24 (1978). By the same token, however, the official cannot stand pat, ignore clearly indicative authority and simply await an absolutely indistinguishable legal decision from the Supreme Court itself that will govern his conduct. Such a dogmatic refusal to accept other reasonable sources of the law amounts to avoidance, if not evasion, of constitutional obligations that any reasonable public official clearly would recognize. The law simply does not invite state officials, prone to recalcitrance and subject to the political and fiscal demands of the voting populace, to blink reality and shirk a plan duty to honor the constitutional rights of others.

If a reasonable public official would have known, by August of 1977, that a prisoner was entitled to adequate legal resources,2 then the defendants, having failed to do so, cannot now interpose a qualified immunity defense to defeat this cause of action. Harlow, supra, at 814-15, 102 S. Ct. at 2736-37; Procunier, supra, at 565, 98 S.Ct. at 861; Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 1001, 43 L. Ed. 2d 214 (1975). The evidence on that score is overwhelming. No reasonable public official intent on honoring constitutional imperatives could have denied Harris' right to adequate legal resources.

The pertinent evidence consists of the decisions of the Supreme Court, the courts of appeals, and the Virginia district courts. E.g., Procunier, supra, at 565, 98 S.Ct. at 861. Consistently, those courts were, by 1976, firm and fixed in the resolution that inmates are entitled to adequate legal research facilities or, in the alternative, an adequate legal assistance program.

In 1971, the Supreme Court decided Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1971), affirming the landmark decision of a three-judge panel in the Northern District of California, Gilmore v. Lynch, 319 F. Supp. 105 (N.D.Cal.1970). Gilmore was a brief one-page per curiam opinion by the Supreme Court. Perhaps the majority is correct in observing that, as a matter of judicial exposition, "Gilmore was itself not as clear as to the state's duties as it might have been." Whether Gilmore's exposition could have been clearer, however, is not the question. The question is whether the holding in Gilmore was clear enough to put state officials on notice of their constitutional obligations. The answer to that question is best reached by considering the evidence.

On the basis of Gilmore and its lower court progenitor, a veritable groundswell ensured so that almost immediately the universal understanding was that inmates are entitled to adequate legal resources so that their rights to meaningful access to the courts may be effectuated. Circuit courts of appeals so held. See, e.g., Mean v. Parker, 464 F.2d 1108 (9th Cir.1972); Cruz v. Hauck, 475 F.2d 475 (5th Cir.1973);3 Noorlander v.Ciccone, 489 F.2d 642 (8th Cir.1973); Bryan v. Werner, 516 F.2d 223 (3d Cir.1975); Knell v. Bensinger, 522 F.2d 720 (7th Cir.1975). On September 30, 1975, the Fourth Circuit so held, noting that the state's "duty was plain: The State was obligated to provide the inmates with adequate legal research facilities." Smith v. Bounds, 538 F.2d 541,544 (4th Cir.1975), aff'd, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). We reiterated and reaffirmed that rule on January 19, 1976, in Kirby v. Blackledge, 530 F.2d 583 (4th Cir.1976) (Per Justice Clark, sitting by designation).