McCray v. Burrell

WIDENER, Circuit Judge

(concurring and dissenting):

With deference to the majority, I agree with the opinion of Judge Field and I would add a few words.

I

Although the majority opinion recites that it accepts the findings of fact of the district judge, it promptly discards the inferences made by him which are as much a part of his findings as the naked facts themselves. This I do not believe an appellate court has the authority to do, much less ought to do. F.R.C.P. 52(a); Commissioner v. Duberstein, 363 U.S. 278, 291 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960); United States v. Gypsum Company, 333 U.S. 364, 394-95 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948); Piedmont Minerals Company v. United States, 429 F.2d 560, 562 (4th Cir. 1970); Glasscock v. United States, 323 F.2d 589 (4th Cir. 1963); Wilsey-Bennett Trucking Company v. Frost, 275 F.2d 144, 147 (10th Cir. 1960).

II

With respect to the question of exhaustion of administrative remedies, I concur in the result solely because of Part II of Wilwording v. Swenson, 404 U.S. 249 , 92 S.Ct. 407 , 30 L.Ed.2d 418 (1971), and not for the reasons given by the majority.

As the majority properly recognizes, Monroe dealt with state judicial, and not administrative, remedies. In McNeese, there was an administrative procedure but no real administrative remedy. As the court stated, “The Superintendent himself apparently has no power to order corrective action. In other words, his ‘only function . . . is to investigate, recommend and report. [He] can give no remedy. . . . ’ ” 373 U.S. at 675, 83 S.Ct. at 1437.

In Damico, the court apparently moved away from the more narrow ruling of McNeese and construed that case to hold that administrative remedies in suits under 42 U.S.C. § 1983 need not be exhausted although adequate. This ruling was underscored by Houghton, a prisoner’s case in which the prisoner sought legal materials. The court noted, however, that it seemed likely that the administrative remedy was futile, and then, in an alternative holding, stated that resort to administrative remedies was unnecessary. 392 U.S. at 640, 88 S.Ct. 2119 . The matter stood here at the time of Wilwording v. Swenson, another prisoner’s case challenging living conditions and disciplinary measures in 1971. Part II of that opinion took up the question of exhaustion in a prisoner’s case brought under § 1983, and the court reaffirmed its holding in Houghton that in any event resort to administrative remedies was unnecessary. 404 U.S. at 252 , 92 S.Ct. 407 .

But the Houghton decision was based on the reasoning that “state prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs.” 404 U.S. at 251 , 92 S.Ct. at 409 . And the opinion noted the “probable futility” of administrative remedies in Houghton, 404 U.S. at 252 , 92 S.Ct. 407 .

*376 Wolfe v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), however, held, rather than recited, that the rights of a state prisoner under § 1983 are not coextensive with those of any other person, and the court stated: “Of course, as we have indicated, that a prisoner retains rights under the Due Process Clause in no way implies that this right is not subject to restrictions imposed by the nature of the regime to which he has been lawfully committed. (citations omitted). Prisoner disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. (citations omitted). In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” 418 U.S. at 556 , 94 S.Ct. at 2975 . The rule, as pointed out in the dissenting opinions, created a separate class for prisoners.

Further erosion of the absolute rule which some consider to have existed is shown by the concurring opinion of Mr. Justice Marshall in Gibson v. Berryhill, 411 U.S. 564 , 93 S.Ct. 1689 , 36 L.Ed.2d 488 (1974), in which he stated that he joined the opinion of the court “except insofar as [the suggestions] that the question remains open whether plaintiffs in some suits brought under 42 U.S.C. § 1983 may have to exhaust administrative remedies.” 411 U.S. at 581 , 93 S.Ct. at 1699 . Gibson was a suit under 42 U.S.C. § 1983 concerning the practice of optometry in Alabama, and the opinion of the court stated that whether exhaustion of administrative remedies in such a matter was “invariably the case” “is a question we need not now decide.” 411 U.S. at 574, 575 , 93 S.Ct. at 1696 .

Thus, Gibson v. Berryhill may be read to hold that the question of exhaustion of administrative remedies is at least a partially open question.

Further erosion of the exhaustion rule is found in the very recent case of Huffman v. Pursue, 420 U.S. 592 , 95 S.Ct 1200 , 43 L.Ed.2d 482 (1975). That case held, in a suit brought in a district court to enjoin a common nuisance proceeding in a State court, where judgment had been entered in the State court but the losing party had not appealed in the State system, rather going directly to the federal district court, that “a party in appellee’s posture must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself in one of the exceptions specified in Younger [v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 ].” at 608, 95 S.Ct. at 1210 . The importance of the ruling is that it shows definitely that the all embracing rule of non-exhaustion in all § 1983 cases is no longer the law, for this, and the holding in Wolfe , are direct holdings that, first, prisoners’ rights are special cases, and, second, exhaustion may be required in some circumstances although the basis of the suit is under 42 U.S.C. § 1983 . Indeed-, the dissent of Mr. Justice Brennan in Huffman describes the majority ruling as “an obvious first step toward discard of heretofore settled law that such actions may be maintained without first exhausting state judicial remedies.” at 613, 95 S.Ct. at 1212 .

Although not decided under 42 U.S.C. § 1983 , Schlesinger v. Councilman, 420 U.S. 738 , 95 S.Ct. 1300 , 43 L.Ed.2d 591 (1975), has further eroded the all embracing rule. It held that where a serviceman is charged with crimes by military authorities and could “show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.” at 758, 95 S.Ct. at 1313. And the court concluded “. we discern nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of military court processes.” at 761, 95 S.Ct. at 1315. At p. 756, 95 S.Ct. at 1312, the court had compared the policy rules of exhaustion in habeas corpus and non-intervention in State criminal proceedings with exhaustion of administrative remedies.

*377 To this date, the Court has not been faced with a fact situation similar to the one at hand, that is to say, with a state statute providing an administrative remedy which, if not entirely adequate, is so nearly so that the deferral of only a small part of the relief sought would not impinge on the rights of the plaintiff in any significant manner.

There is assuredly no policy reason for the courts not to apply the customary and general law of requiring exhaustion of administrative remedies merely because a case is brought under 42 U.S.C. § 1983 . This is conclusively shown by the exhaustion doctrine developed with reference to habeas corpus cases. Surely, liberty is our most precious right, all others paling into insignificance beside it. And the protection of liberty in the last analysis is by writ of habeas corpus, which is specifically recognized in the Constitution and there protected from suspension except when in cases of rebellion or invasion the public safety may require it. U. S. Constitution, Article II, § 9. In the face of the liberty interest protected, for the sovereign in the last analysis may only impose his will on the citizen by confinement, the courts nevertheless’ developed an exhaustion requirement in habeas corpus cases as early as 1886 in Ex parte Royall, 117 U.S. 241 , 6 S.Ct. 734 , 29 L.Ed. 868 (1886), which was followed by a series of cases as late as Ex parte Hawk, 321 U.S. 114 , 64 S.Ct. 448 , 88 L.Ed. 572 (1944). The exhaustion doctrine was then codified in 1948 in 28 U.S.C. § 2254 . Since no policy reason exists against exhaustion in protecting the liberty interest as shown by the decisions of the Supreme Court, I can find no policy interest which exists against an exhaustion requirement respecting conditions of confinement. If exhaustion is required to test the legality of the fact of confinement, what policy should require non-exhaustion when testing the conditions of confinement?

It follows that I would affirm other than on account of that part of part II of Wilwording which has not been modified.

Circuit Judge DONALD RUSSELL authorizes me to say that he joins in this opinion.