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January 8, 1982

Joseph A. FALZERANO, Jr., Plaintiff,
COLLIER, Warden of Essex County Jail, Defendant

The opinion of the court was delivered by: BIUNNO

Although he does not say what the basis for his confinement is, the complaint submitted by Mr. Falzerano along with an affidavit of poverty for leave to file under 28 U.S.C. § 1915, it is plain from the content that he has been convicted and sentenced to N.J. State Prison, but is for the time being retained at the Essex County Jail.

As is well known, persons sentenced to N.J. State prison are ordinarily processed to the designated facility as soon as the processing routine permits. However, in June of 1981, Governor Byrne issued an order requiring county jails to hold some State inmates temporarily due to overcrowding at the State institutions. That order was extended in September, and will expire on January 20, 1982, the day after the inaugural of a new Governor.

 In a suit filed by the County of Atlantic, the Supreme Court of New Jersey, acting with great expedition, issued an opinion on January 6, 1982 upholding the validity of the order because of the state of emergency temporarily existing due to the overcrowded conditions. Arrangements have been made to house up to 500 State prisoners at the former military stockade at Ft. Dix. A new section of Trenton State Prison is scheduled to open in May, and another in the Spring of 1983. Plans to demolish old buildings there have been suspended for the time being. Arrangements have been made to provide trailers as temporary housing to the counties, and the counties of Essex, Bergen, Middlesex and Ocean have agreed to accept them, and others are being considered at State facilities. A new State prison is to be built in Camden, scheduled to open in 1985. See, Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982).

 As Justice Pashman noted in his opinion for the court, under the new criminal code enacted in 1979, N.J.S.A. 2C:1-1, et seq. there has been an increase in the number and length of custodial sentences, a factor tending to overcrowding since the inflow rate is higher than the outflow or release rate, in numbers for a given time period.

 It is in this context of general facts, well known in the area and subject to judicial notice under Fed.Ev. Rule 201, that the present complaint is reviewed and analyzed.

 Although the affidavit of poverty is scanty and conclusionary, the court accepts it as adequate and will order the clerk to file the complaint.

 The complaint itself, however, is found frivolous after careful review, and is ordered dismissed on that ground as authorized by 28 U.S.C. § 1915(d).

 Mr. Falzarano advances three claims or causes of action for deprivation of federal rights under color of state law, 42 U.S.C. § 1983. These, and the facts alleged for each, are reviewed below.

 Law Library and related matters.

 Mr. Falzarano says he came into the custody of the warden at Essex County Jail on November 17, 1981 (par. 12). He says that on 11 specified dates from December 5 to December 20, 1981, and at other times during and before that period, he was denied access to the law library. He also says that on December 7 and 8, 1981 and on other dates, he was denied notarization of papers unless the notary read and retained copies. He was also told that mailings by certified mail, return receipt requested (presumably without charge to the sender) were not provided.

 The facts alleged on this count, taken in their most favorable and lenient reading, fall far short of a § 1983 claim.

 The most recent decision of the Supreme Court of the United States dealing with legal assistance to prisoners is Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). The court there adhered to Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1971) holding that the States are constitutionally obliged to protect the rights of prisoners to access to the courts by providing them with law libraries, "or alternative sources of legal knowledge," against a request to overrule that case.

 Bounds came out of North Carolina. At the trial level, it appears that there was but one prison library in the State, that it was "severely inadequate", and that there was no other legal assistance available to inmates.

 After a summary judgment against the State, North Carolina proposed to establish 7 libraries with law books meeting minimum standards set by the American Correctional Institution, the American Bar Association and the American Association of Law Libraries, ...

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