434 F2d 247 Harper v. P J Ciccone

434 F.2d 247

Walter F. HARPER, Appellant,
v.
Dr. P. J. CICCONE, Director, United States Medical Center
for FederalPrisoners, Springfield, Missouri,
Appellee, (two cases).

Nos. 20128, 20189.

United States Court of Appeals, Eighth Circuit.

Dec. 7, 1970.

Walter F. Harper, pro se.

No brief was filed by counsel for appellee.

Before MATTHES, Chief Judge, LAY and BRIGHT, Circuit Judges.

PER CURIAM.

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1

Pursuant to 18 U.S.C. 4244, in September, 1969, the United States District Court for the Eastern District of California committed Walter Franklin Harper (appellant) to the United States Medical Center for Federal Prisoners at Springfield, Missouri. Shortly after his arrival at the Federal Medical Center in October, appellant filed two petitions in the United States Court for the Western District of Missouri, seeking habeas corpus and other relief. He attacked the legality of his confinement, asserting, inter alia that the committing order was not valid, that he was denied the privilege of dismissing his attorney, that he was not appropriately indicted in the committing court, and that he was unlawfully confined in a federal prison although he had not yet been convicted. Additionally, appellant complained of the conditions of his confinement in the Federal Medical Center, in that he was being deprived of proper legal assistance, the services of a notary public and that appellee was 'tampering with' his legal materials.

2

After carefully considering appellant's claims, which included an evidentiary hearing relating to the conditions of his confinement and the alleged failure of the Federal Medical Center to provide appellant with adequate legal assistance, the district court denied him any relief and dismissed his petitions. Leave was granted, however, by the district court to appeal in forma pauperis from both judgments of dismissal.

3

Appeal No. 20,128 was docketed in this court on January 26, 1970, and No. 20,189 on March 9, 1970.

4

Upon motion of appellee, the appeals were consolidated. Presently before us is the appellee's motion to dismiss the appeals on the ground that the issues have been rendered moot by appellant's transfer from the Federal Medical Center to the Folsom State Prison, Represa, California for confinement pending trial of the federal charge in the United States District Court for the Eastern District of California.

5

The evidence submitted in support of the motion to dismiss has been examined. It conclusively demonstrates appellant was legally removed from the Federal Medical Center in September of 1970 and transferred to the institution in California. This leads us to hold that the appellee's motion to dismiss is in order and should be granted. Appellant's claim of illegality in the proceedings resulting in his being committed has been mooted because he is now where he claims he should have been during his period of confinement in the Federal Medical Center. The conditions of confinement in the latter institution alleged to be illegal, no longer exist as to him. Ayers v. Ciccone, 431 F.2d 724 (8th Cir., 1970).

6

The appeals are dismissed.