Opinion
No. 72-1119.
April 11, 1972.
Harold Raymond Hooks, pro se.
Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida; Charles R. Scott, Judge.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
Petitioner instituted the present § 1983 suit seeking to have the Florida prison law library facilities upgraded, or in the alternative, to have the State provide counsel to assist prisoners in their legal endeavors. Recognizing that the Supreme Court then had pending before it the case of Younger v. Gilmore, which was expected to answer the identical question posed by this case, namely, "Does the State have an affirmative federal constitutional duty to furnish prison inmates with expensive law libraries or, alternatively to provide inmates with professional or quasi professional legal assistance?" (39 L.W. 3169), but incorrectly, though hedgingly, predicting the Supreme Court decision in Gilmore, the District Court dismissed the petition without prejudice to the petitioner to refile his suit should the Supreme Court decision in Gilmore be contrary to the District Court's expectations. It was, and accordingly, we summarily vacate the dismissal of the § 1983 petition and remand the case for reconsideration in light of Younger v. Gilmore, supra, affirming Gilmore v. Lynch, N.D.Cal. (Three-Judge), 1970, 319 F. Supp. 105; Cruz v. Hauck, 1971, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217; Johnson v. Avery, 1969, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718; and Novak v. Beto, 5 Cir., 1971, 453 F.2d 661, rehearing en banc denied, 1972, 456 F.2d 1303.
This case comes to us on petitioner-appellant's motion for summary remand. We dispose of this case summarily. See Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.
Younger v. Gilmore, 1971, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142.
Part of the relief sought by petitioner was denied by the District Court on the authority of Cruz v. Beto, 5 Cir., 1971, 445 F.2d 801. That decision has since been reversed by the Supreme Court, Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, and a companion case was likewise reversed by the Supreme Court, Cruz v. Hauck, supra.
Vacated and remanded.