United States ex rel. Ricketts v. Lightcap ( 1977 )

JAMES HUNTER, III, Circuit Judge:

This appeal raises the question whether a state prisoner must exhaust state administrative remedies before bringing an action under 42 U.S.C. § 1983 in federal court for deprivation of his constitutional rights. The District Court for the Middle District of Pennsylvania dismissed the prisoner’s pro se complaint under F.R.Civ.P. 12(b) for failure to exhaust such remedies. Since the decisions of the Supreme Court indicate that state prisoners need not exhaust administrative remedies, we reverse and remand the case for further proceedings.

This case is the second civil rights action brought by Wilbert Ricketts, Sr., against officials of the State Correctional Institution at Dallas, Pennsylvania (S.C.I.D.). In the first action, Ricketts and Roy Williams attacked the constitutionality of the rules by which the prison controls reading matter reaching inmates, Bureau of Corrections Administrative Directive No. 814 (BC-ADM 814), 37 Pa.Code §§ 95.71 et seq. On July 14, 1975, the District Court for the Middle District of Pennsylvania dismissed the pro se complaint on defendant’s motion for failure to exhaust the administrative remedies, including appeal, available under the directive.¹

In December 1975 Ricketts filed a second pro se complaint in the District Court for the Eastern District of Pennsylvania. The matter was later transferred to the Middle District pursuant to 42 U.S.C. § 1404 on plaintiff’s motion.

Since the district court dismissed the complaint without taking evidence, F.R. Civ.P. 12(b), we must assume the facts alleged in the complaint to be true. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Radovich v. National Football League, 352 U.S. 445, 448, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957).

The second complaint charged that defendants James Lightcap, State Agent in S.C.I.D.’s mailroom, Glen Jeffes, superintendent of the prison, and the staffs of the institution and of the state Bureau of Corrections violated rights guaranteed Ricketts by the first and fourteenth amendments. Ricketts alleged that defendants had withheld from him a book which he had ordered and paid for, that defendant Lightcap, without authority, signed Ricketts’ name to the insurance receipt for the book when it arrived at S.C.I.D., and that other mail had later been withheld from him. We do not know what, if any, administrative remedies Ricketts attempted to use, since the district court dismissed the complaint. The complaint does indicate that he approached one member of the committee responsible for reviewing incoming publications and was told that the book he ordered had not been declared obscene by the committee. There is no allegation that Ricketts appealed to the prison superintendent or to other state authorities. The complaint seeks an injunction, a declaratory relief, and compensatory and punitive damages.

The defendants moved to dismiss the complaint on the grounds that Ricketts was collaterally estopped by the decision in the first case. They characterized the second complaint as essentially an attack on BC-ADM 814, as was the first action. Ricketts filed an answer to the motion addressing the collateral estoppel issue.

In a memorandum and order on May 5, 1976, Judge Nealon held that the plaintiff was not collaterally estopped, since the second complaint attacked the manner in which the prison’s policy was implemented, not the Directive itself. Defendants do not appeal this decision.

Nevertheless, the district court granted the defendants motion to dismiss. Sua sponte, the court held that the complaint showed that Ricketts had not exhausted administrative remedies² and that this failure was fatal to the section 1983 action.

Plaintiff appeals on three grounds. First, he claims that the district court should have given him notice of and an opportunity to respond specifically to the issue of exhaustion. Second, he argues that the record does not support the judge’s finding that he failed to exhaust administrative remedies. Third, he takes the position that exhaustion of administrative remedies is not required in actions under section 1983.

Since our reading of recent Supreme Court cases leads us to conclude that Rick-etts need not exhaust his administrative remedies before bringing an action under section 1983 in federal court, we do not need to consider the first two contentions.

The general rule in actions under section 1983 is that state remedies need not be exhausted as a prerequisite to federal jurisdiction. This rule was formulated in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the Supreme Court found in the legislative history of the Civil Rights Act the intent that the federal remedy in section 1983 be “supplementary” to any remedy any State might have. Id. at 183, 81 S.Ct. 473.

The Supreme Court later extended this rule specifically to include exhaustion of administrative remedies. See McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Thereafter, the Court has often repeated without discussion that administrative remedies need not be exhausted. See Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 492-93 n. 10, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Wilwording v. Swen-son, 404 U.S. 249, 251-52, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

While the exhaustion discussion in these cases can be interpreted as ambiguous or as unnecessary dicta, see, e. g., Cordova v. Reed, 521 F.2d 621, 624 (2d Cir. 1975); Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), this court has agreed with the view of the majority of courts of appeals that administrative remedies, irrespective of their adequacy, need not be exhausted by a plaintiff seeking a federal remedy under section 1983. Hochman v. Board of Education, 534 F.2d 1094 (3d Cir. 1976). In that case, a nontenured teacher brought an action against the school board alleging that he was dismissed in retaliation for his exercise of first amendment rights. The court followed what it called the “unqualified expression” of the rule by the Supreme Court, and emphasized:

When appropriate federal jurisdiction is invoked alleging violation of First Amendment rights, as Hochman does here, we may not insist that he first seek his remedies elsewhere no matter how adequate those remedies may be.

Id. at 1097.³

While courts should be cautious when delving into the internal operations of a prison, see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Carpenter v. State of South Dakota, 536 F.2d 759, 763 (8th Cir. 1976); Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970), the Supreme Court has not differentiated actions by prisoners under section 1983 from those of other plaintiffs, and has not required exhaustion of state administrative remedies. In Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), the Court in a per curiam opinion reversed the holding of this circuit that a state prisoner must allege exhaustion of state administrative remedies. The opinion first noted that the remedies available were likely to be futile, and concluded,

In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622; and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. On the basis of these decisions . . . the judgment of the Court of Appeals is reversed . . .

There was some doubt whether the mention of the futility of the procedure available to Houghton was necessary to the result in the case, see, e. g., Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). This doubt was dispelled by the Court in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). The per curiam opinion emphasized that, although futility of administrative remedy had been mentioned, Houghton “held that ‘in any event, resort to these remedies is unnecessary.’ ” Id. 404 U.S. at 252, 92 S.Ct. at 409. Later Supreme Court cases involving section 1983 actions by prisoners reiterated the position that exhaustion of administrative remedies is not required. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 482, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ; cf. Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975). Several courts of appeals have agreed that the Supreme Court cases have established the rule that prisoners need not exhaust administrative remedies before bringing an action under § 1983. See, e. g., Hardwick v. Ault, 517 F.2d 295, 296 (5th Cir. 1975); McCray v. Burrell, 516 F.2d 357, 360-65 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); McClelland v. Sigler, 456 F.2d 1266, 1267 (8th Cir. 1972); Jones v. Metzger, 456 F.2d 854, 856 (6th Cir. 1972). But see Morgan v. LaVallee, 526 F.2d 221, 223 (2d Cir. 1975).

Appellees argue that this line of cases has been undercut by recent Supreme Court decisions. In Gibson v. Berryhill, 411 U.S. 564, 573-75 & n. 14, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the Court’s opinion seemed to look to the adequacy of state administrative remedies in reaching its conclusion that they need not be exhausted. See id. at 581, 93 S.Ct. 1689 (Marshall, J., concurring); P. Bator, D. Shapiro, P. Mish-kin & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 158 (2d ed. Supp.1977). See also Runyon v. McCrary, 427 U.S. 160, 186 n. *, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (Powell, J., concurring).

After its decision in Gibson, the Court again reaffirmed its adherence to the rule that exhaustion is not required, without mentioning the adequacy of available remedies. Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) . These cases indicate that the possible sentiments in Gibson have not come to fruition.⁴

The appellees next urge that this court apply one of several “exceptions” to the general rule to this case. First, they point out the series of cases in the Second Circuit which have held that plaintiffs in section 1983 cases must exhaust administrative remedies if they are found to be adequate to grant the relief requested. See, e. g., Gonzalez v. Shanker, 533 F.2d 832 (2d Cir. 1976); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). The Second Circuit, like other courts, has recognized that prisoners are not held to any higher standard under section 1983 than other plaintiffs. Morgan v. LaVallee, 526 F.2d 221, 223 (2d Cir. 1975). See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Hardwick v. Ault, 517 F.2d 295, 296 (5th Cir. 1975); McCray v. Burrell, 516 F.2d 357, 362 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 406 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). Since this circuit has rejected the Second Circuit’s interpretation of the Supreme Court’s exhaustion cases, see Hochman v. Board of Education, 534 F.2d 1094, 1096-97 (3d Cir. 1976), it would not be proper to adopt that interpretation for prisoner cases.

Second, appellees point out the distinction running through cases in the Ninth Circuit between administrative procedures which are remedial in nature and those which are designed to forestall a deprivation of a constitutional right. The latter must be exhausted. See, e. g., Toney v. Reagan, 467 F.2d 953 (9th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.2d 263 (1973); Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969). As developed in Whitner, this doctrine was applied to a dismissed school teacher who, after being informed of the decision to dismiss her, did not use the administrative remedies which could have reversed the decision before the effective date of the dismissal. As of the time she would have used the administrative process, she had not yet been subjected to any deprivation. Thus, the process was said to be one that would “forestall” a deprivation. By failing to use the administrative process, she was held to have accepted the termination. The case specifically distinguished an administrative process which was designed to remedy a deprivation. See id. at 28. An example would be a procedure designed to reverse the school’s decision after the teacher had been dismissed, i. e., once the deprivation had occurred. In the instant case, Ricketts’ complaint alleged that the prison deprived him of his book. The remedies now being invoked by the defendants are designed to remedy the situation, which even in the Ninth Circuit need not be exhausted. We therefore do not need to consider whether the qualified exhaustion rule should be adopted in this circuit.⁵

Finally, in regard to the appellees’ argument as to exhaustion, it is important to note that this is hardly a situation in which exhaustion would be applicable in any event. The main thrust of Ricketts’ complaint — indeed the only thrust — is that James Lightcap, an attendant at the prison mailroom, improperly seized a publication that was ordered by, and addressed to, the petitioner. Nothing in the pleadings indicates that Lightcap advised the petitioner that the publication had been seized pursuant to any prison regulation. Rather, the complaint makes clear that Lightcap signed Ricketts’ name to the mail receipt without authority (and without notifying Ricketts) and failed to deliver the publication to Ricketts. It was not until Ricketts questioned the publisher regarding the whereabouts of the book that the improper conduct of the mailroom attendant came to light. No administrative process has been addressed to the question of the improper seizure and unauthorized signing of a prisoner’s name. The administrative process would deal, if at all, with the procedure for determining whether a publication is or is not obscene. But Ricketts, at least in this case, does not challenge the procedure that was established by the prison for ascertaining whether a publication is obscene. Instead, he seeks to enjoin Lightcap from improperly seizing publications and to obtain monetary damages for the improper seizure that took place on the occasion in question. Each day of delay that occurs before Ricketts receives his book may well constitute a further violation of his first amendment rights.

Lastly, appellees argue that this case is not ripe for adjudication, since a “final” decision will not have been made until the prisoner has appealed to the state Attorney General and Commissioner of Correction, in accordance with BC-ADM 814. The doctrines of ripeness for adjudication and of exhaustion of administrative remedies are distinct and not interchangeable. While exhaustion is sometimes a jurisdictional prerequisite to a civil suit in a district court, ripeness is a product of the concept of justiciability. See 3 K. Davis, Administrative Law Treatise § 21.01 at 116 (1958). Ripeness concerns whether the legal issue at the time presented in a court is sufficiently concrete for decision. Courts will not decide abstract legal issues posed by two parties; the issue in controversy must have a practical impact on the litigants. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-54, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Continental Air Lines, Inc. v. C.A.B., 173 U.S.App.D.C. 1, 522 F.2d 107, 124-25 (1975) (en banc); Itzcovitz v. Selective Service Local Board No. 6, 447 F.2d 888, 891 (2d Cir. 1971).⁶

The usual standard for ripeness should not differ because an action is brought under section 1983. See McCray v. Burrell, 516 F.2d 357, 364 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976). To impose a heightened ripeness requirement would in effect recreate the exhaustion rule rejected by Monroe v. Pape and its progeny. Ricketts has alleged that he has been deprived of reading material which arrived at the prison addressed to him and which he had a constitutional right to receive. Since this allegation indicates that an action taken by the prison has had a practical impact on Ricketts’ rights, a ripe constitutional injury is stated. See Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975).

We reverse the order of the district court dismissing plaintiff’s complaint for failure to exhaust administrative remedies, and remand for further proceedings consistent with this opinion.

1 . BC-ADM 814 provides that a staff committee appointed by the Superintendent at each institution shall review all incoming publications. Section IV(A)(4) of that directive provides that receipt of publications shall be disapproved (by the Committee), when, among other reasons, the publications contain judicially defined obscenity.

Residents have the right to appeal to the Superintendent any staff committee decision disapproving a publication.

The decision of the Superintendent may be appealed to the Commissioner of Correction, who shall evaluate the publication in conjunction with the Office of the Attorney General.

2 . The court stated:

Although the record now before the Court is not completely clear as to the extent of administrative remedies pursued by plaintiff, the Court is certain that the appellate procedures as outlined in BC-ADM 814 have not been exhausted.

3 . Accord, Gillette v. McNichols, 517 F.2d 888, 890 (10th Cir. 1975); McCray v. Burrell, 516 F.2d 357, 360-65 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975); Nickerson v. Thomson, 504 F.2d 813, 817 (7th Cir. 1974); Raper v. Lucey, 488 F.2d 748, 751 n. 3 (1st Cir. 1973); Gilliam v. City of Omaha, 459 F.2d 63 (8th Cir. 1972); Jones v. Metzger, 456 F.2d 854, 856 (6th Cir. 1972).

4 . Appellees also cite Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Neither case indicates any erosion of the Court’s position on exhaustion of state remedies under § 1983. Schlesinger dealt with the deference of federal courts to the system of military justice, and Huffman with the application of the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), to state civil contempt proceedings in certain circumstances. Both cases thus applied doctrines which had previously coexisted with the non-exhaustion rule of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See, e. g., State of New Jersey v. Che-simard, 555 F.2d 63, 67 (3d Cir. 1977).

We recognize that the rule followed in this case is not fully consistent with usual deference given to prison administrative procedures, see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Jones v. Carlson, 495 F.2d 209 (5th Cir. 1974). We do believe that the district courts have available the means to develop flexible procedures which can retain many of the benefits of an exhaustion rule without requiring exhaustion of administrative remedies. See, e. g., F.R.Civ.P. 16; Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975) (discussing tentative report of Federal Judicial Center committee studying prisoner civil rights actions, chaired by Judge Ruggero J. Aldisert of this Court, and pointing out “special report” procedure devised by Judge Vincent Biunno of the District of New Jersey).

5 . At its inception the Ninth Circuit doctrine was similar to a well developed series of cases holding that a claim that the state has deprived plaintiff of property without due process of law is not sufficient to state a constitutional deprivation if the process which the state provided had not been used. See, e. g., Elterich v. City of Sea Isle City, 477 F.2d 289, 291 (3d Cir. 1973); Randell v. Newark Housing Authority, 384 F.2d 151, 156-57 (3d Cir. 1967). Similarly, the Fourth Circuit has treated the Ninth Circuit cases as simply applying the traditional ripeness doctrine. See McCray v. Burrell, 516 F.2d 357, 364 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976).

6 . In this respect, the ripeness doctrine is closely related to the case or controversy requirement of Article III of the United States Constitution. See P. Bator, D. Shapiro, P. Mishkin & H. Wechsler, Hart & Wechsler’s Federal Courts and the Federal System 145-46 (2d ed. 1973); 3 K. Davis, Administrative Law Treatise §§ 21.-01, 21.10 (1958).