This is an equity action in which plaintiff, a state prisoner, seeks to enjoin certain prison officials from denying him access to legal materials and facilities. The action is brought under the Civil Rights Act, 42 U.S.C.A. § 1983 and under 28 U.S.C.A. § 1343 which collectively confer jurisdiction on the District Courts to redress deprivations of civil rights.
Plaintiff is presently serving a sentence of from ten to twenty years under a 1963 second degree murder conviction. He asserts that hе was unlawfully convicted, but that he has been prevented from effectively contesting it by the officials at Graterford, a Pennsylvania State Correctional Institution, where he is confined. Specifically, he complains that he has been denied the use of a law library and that he has been prevented from acquiring legal materials — including books, newspapers, and other publications — from sources other than those enumerated in the margin. 1 Plaintiff further asserts that his communication even with these enumerated sources has, on occasion, been thwarted.
Before examining the merits of plaintiff’s contentions, however, this Court must deal with another matter raised in the complaint and answer. Plaintiff states that he contacted the Assistant *9 Superintendent and that he conferred with another prison official before filing his complaint. The defendants assert that prison regulations prescribe a more detailed procedure than this. 2 Thus at the outset we must determine whether it was necessary for plaintiff to first exhaust this procedure.
I. Exhaustion of Administrative Remedies
The Supreme Court of the United States has consistently recognized and adhered to the rule that administrative proceedings must be exhausted prior to resort to judicial relief. This is especially so with regard to administrative remedies available to the states.
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However, with regard to questions of civil rights it has long been established that the ordinary requirements of exhaustion do not apply. In Lane v. Wilson,
To vindicate his present grievance the plaintiff did not have to pursue whatever remedy may have been open to him in the state courts. Normally, the state legislative process, sometimes exercised through administrative powers conferred on state courts, must be completed before resort to the federal courts can be had. * * * But the state procedure open for one in the plaintiff’s situation * * * has all the indicia of a conventional judicial proceeding * * *. Barring only exceptional circumstances, * * * resort to a federal court may be had without first exhausting the judicial remedies of state courts.
Moreover, the Supreme Court recently went one step further and repudiated the requirement of exhaustion of even administrative remedies in certain actions brought under the Civil Rights Act. McNeese v. Board of Education,
Thus at least with respect to some actions under the Civil Rights Act, it is clear that exhaustion of even administrative remedies is now a requirement of the past. In the light of these-decisions, however, this Court is now confronted with the task of determining whether this principle of non-exhaustion was intended to spill over into every action brought under the Civil Rights Act.
After careful deliberation, this Court is convinced that it was not intended, and indeed could not have been contemplated, that the requirement be eliminated in all Civil Rights cases. Whatever the conclusion to which academic logic might lead, we are guided not by logic but by experience.
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To waive the requirement of exhaustion of administrative remedies in this type of case would fly in the face of the experience оf the law. Thus while a purely logical parallel might be drawn between the present case and the Illinois public school case, experience compels the conelusion that waiver of administrative exhaustion in the matter at hand would go far beyond the intendment of the United States Supreme Court. McNeese v. Board of Education,
This is not to say that the United States Supreme Court was unjustified in relieving the litigants of part of their heavy burdens in the two great civil rights cases heretofore discussed, the McNeese Case (supra), and the earlier Lane v. Wilson,
The amelioration exemplified in the two Supreme Court cases was not a new approach to the protection of minority groups. The Civil Rights Act itself, and especially the section under which the present action is brought, was intended primarily to overcome sectional reluctance to uphold the rights of negroes. 7 It was designed, and has been used, “ * * * to wipe out every form of racial distinction that had any form of legal support.” 8 As recently as 1961 the Supreme Court had occasion to refer to the circumstances which led to its enact *11 ment. Speaking for the Court, Mr. Justice Douglas said:
It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, pаssion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Monroe v. Pape,365 U.S. 167 , 180,81 S.Ct. 473 , 480,5 L.Ed.2d 492 (1961).
It has not been the experience of this Court that complaints by inmates of state correctional institutions have been frustrated by any such “prejudice, passion and neglect.”
However, fully apart from the foregoing, the view of this Court is supported by the statutes themselves. It should be noted that a number of similar provi^iqns of Title 42 of the U.S.C.A. contain express exclusions of the necessity of prior resort to state judicial or administrative remedies. 9 But, no such exclusion is contained in the section under which the present action is brought.
Accordingly, this Court therefore concludes thаt inmates of state correctional institutions must, before invoking the aid of the Civil Rights Act, first exhaust their administrative remedies or make a satisfactory showing that they were in fact unable to do so.
It is arguable that the present plaintiff failed to exhaust his administrative remedies. Certainly he did not literally exhaust his remedy by proceeding to the final stage, an application to the Attorney General of the Commonweаlth of Pennsylvania.
On the other hand, it is not as if plaintiff merely consulted a minor prison official before filing his complaint. He alleges, and it is not denied, that he made numerous unsuccessful efforts to obtain from the assistant superintendent the relief he now seeks; and that he was on one occasion advised by the prison authorities that it would be useless for him to appeal further. Thus the petition raises certain quеstions of fact as well as law as to whether, prior to the institution of the present action, there was substantial exhaustion of available remedies. The question is not reached, however, since — for reasons to appear — the cause of action must fall on the merits. Even were it to be shown that petitioner had satisfied the prerequisite of exhaustion, his cause would not be advanced — sincе it is fatally defective in other respects.
II. State Prisoner’s Right of Access to Legal Materials and Facilities
On the merits, plaintiff asserts that he is denied the use of a law library, and that he is prevented from acquiring legal materials from sources other than those specified by the prison authorities. In essence, however, plaintiff’s complaint is that he has been denied access to the courts in violatiоn of the due process clause of the Fourteenth Amendment.
After careful consideration, it is the opinion of this Court that plaintiff’s constitutional rights have not been infringed. We have long since passed that stage in the history of our country when the convicted felon was considered a “slave of the state”.
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However, as the Supreme Court said in 1948: “Lawful
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incarceration brings about the necessary-withdrawal or limitation of many privileges and rights, a retraсtion justified by the considerations underlying our penal system.” Price v. Johnston,
In the case presently before this Court the line sought is that which separates matters of internal discipline from the constitutional right of access to the courts. For although prison mail may be censored, regulations or restrictions that effectively preclude an inmate from communicating with courts cannot be tolerated. Spires v. Dowd,
Perhaps the more difficult problem is determining what is meant by the term “access.” Black defines it as “Approach; or the means, power or opportunity of approaching.”
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Webster’s explains it as meaning “[T]o take preliminary steps toward, as a task; to make advances to.”
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Thus it can mean either the physical fact of imparting notice or knowledge to another, or it can be understood as including the content of the communication itself. It is the latter meaning that plaintiff would have us adopt. Certainly, “access” includes at least the former, that is, the right to have one’s communication physically transferred to the court. (See Corwin, Constitution of the United States, Revised and Annоtated, p. 1137 (1952); Ex parte Hull,
However, no court has gone so far as plaintiff would have us go. In a case closely akin to the case before this Court, the Ninth Circuit denied that reasonable access required that the state furnish library facilities and an opportunity to use them. Hatfield v. Bailleaux,
Perhaps the entire matter has been properly summed up by Judge Hays of the Second Circuit. In upholding the right of prison authorities to impose reasonable restrictions on the exercise of constitutional rights by prison inmates, Judge Hays sаid: “In other words the nub of this whole situation is not to be found in the existence of theoretical rights, but in the very practical limitations on those rights which are made necessary by the requirements of prison discipline.” (See Sostre v. McGinnes,
Under the facts of this case it is clear that plaintiff has not bеen denied his constitutional right of access to the courts.
III. Availability of Injunctive Relief
Finally, to conclude this matter the Court must dispose of yet another question raised in plaintiff’s complaint; namely that his efforts to secure legal materials from even the permissible sources have been blocked.
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Notwithstanding our refusal to set forth with particularity plaintiff’s rights to acquire and retain legal materials, if he is denied a privilege enjoyеd by his fellow inmates he has stated a complaint cognizable under the federal Constitution. For without regard to whether the state must actually afford these privileges, if it does so generally but discriminates against plaintiff he has been denied the equal protection of the law as guaranteed by the Fourteenth Amendment. [Cf. Cochran v. State of Kansas,
An injunction is an extraordinary remedy, and should not be employed lightly. Where the basis for it has been removed, with no reason to anticipate its recurrence, it can have no meaningful effect and should not issue. [Cf. Walling v. Youngerman-Reynolds Hardwood Co.,
For all of the foregoing reasons, it is the judgment of this Court that the complaint be dismissed and that no injunction shall issue.
Notes
. Bureau of Correction current policy is that opinions may be secured from the issuing court, the United States Government Printing Office and West Publishing Company. Any other legal material (magazine and newspaper articles, law reviews, etc., may be obtained from the official source, provided the inmate specifies the particular article. Entire boohs are to be made available but removed from the inmates’ cells when their legal actions are concluded. Better from Superintendent David N. Myers, August 9,1965; Defendants’ answer to complaint.
. “THAT, Respondent avers that each and every inmate upon his arrival * * * is provided with an ‘Inmate Handbook’ which enumerates our complete rules and regulations. * * * ‘If any problem arises within the institution concerning your confinement, you may bring the matter to the attention of the Classification and Treatment Clinic which has been established to help you with all types of personal problems. In addition, it is your privilege to address a cоmmunication at anytime to the Superintendent, the Deputy Commissioner of Correction, or the Commissioner of Correction, and as a final appeal, to the Attorney General.’ ” It has already been concluded in this District and Circuit that these regulations constitute proper administrative remedies. See Gaito v. Prasse,
. Aircraft & Diesel Equipment Corp. v. Hirsch,
. Under the Illinois statute (Ill.Rev.Stat. 1961, c. 122, § 22-19) a specified percentage of residents of a given school district could petition the superintendent of Public Instructiоn alleging racial segregation in the public schools. A hearing would be scheduled, with notice to the school board, niter which the superin
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tended would decide whether the allegations were meritorious, and then request the Attorney General to bring suit. Petitioners never attempted to utilize this procedure. (See
. Holmes, The Common Law 5 (Howe ed. 1963): “ * * * the life of the law is not logic: it is experience.”
. “The ‘exhaustion’ doctrine is a product of judicial self-limitation resembling the requirement of equity jurisdiction — that a litigant has no standing in equity where he has an adequate remedy at law — although matters of comity and need for orderly administrative procedure helped shape the doctrine.” (See United States v. Fritz Properties,
. § 1 of the Civil Rights Act of 1866, reenacted Act of May 31, 1870, 16 Stat. 140, was later divided into two sections, §§ 1977 and 1978, which presently constitute 42 U.S.C.A. §§ 1981 and 1982. Today’s 42 U.S.C.A. § 1983 finds its antecedent in § 1 of the Act to Enforce the Provisions of the Fourteenth Amendment, 17 Stat. 13 (1871). See People of State of New York v. Galamison,
. Konvitz, A Century of Civil Rights (1962) at p. 63. A cursory examination of any compilation of cases under the Act attests that racial discrimination was the primary evil of the Act was intended and used to remedy. See e.g., 42 U.S.C.A. 1981, et seq. and especially 42 U.S.C.A. § 1983, n. 135.
. See 42 U.S.C.A. § 1971 (e) (voting rights); 42 U.S.C.A. § 2000a (public facilities).
. “He [the convicted felon) has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.” See Ruffin v. Commonwealth,
. See e.g.. State of Oregon ex rel. Sherwood v. Gladden,
. Ortega v. Ragen,
. Cf. Sostre v. McGinnes,
. See Kirby v. Thomas,
. Cf. Pierce v. La Vallee,
. Black’s Law Dictionary, (4th ed. 1951).
. Webster’s New Collegiate Dictionary, (2nd ed. 1953).
. See United States ex rel. Mayberry v. Prasse,
. Although later enlarged, the law library at the time of the suit consisted of “two volumes of Corpus Juris Secundum, portions of the Oregon Revised Statutes, and some advance sheets from the Oregon Supreme Court.” Id.
. See also Taylor v. United States,