Petition — Burrell v. McCray

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OcTOBER TERM, 1975

No. wea-41a Misc.

ROBERT BURRELL, Petitioner,

Vv.

MILTON McCRAY, Respondent.

SERGEANT V. D. SMITH, eEtc., Petitioner,

Vv.

MILTON McCRAY, Respondent.

GERALD McCLELLAN, et AL., Petitioners,

Vv.

JAMES E. X. STOKES, Respondent.

DR. HAROLD M. BOSLOW anpb

DR. DOMINGO C. SORONGON, Petitioners,

JOHN WASHINGTON, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

For THE FourRTH CIRCUIT

FRANCIS B. BURCH,

Attorney General of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief of Criminal Division,

DONALD R. STUTMAN,

Assistant Attorney General,

One South Calvert Building,

Baltimore, Maryland 21202

For Petitioners.

_ ———

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The Daily Record Co., Baltimore, Md. 21202

TABLE OF CONTENTS

PAGE

ETTORE PEL AAP LITE RTT aPC T TTT 2

SSE STEALTH PL ETT TREE OT TR TOO 2

GUyBSTOOOeD PBB TED .2.0cccccccccccccccccscccessosccsccesesesss 2

STATUTES AND CONSTITUTIONAL PROVISIONS IN-

RAS a ee Pah nt A ODT ae SISO

REASONS FOR GRANTING THE WRIT:

ARGUMENT I:

The United States Court of Appeals for the

Fourth Circuit erred when it held that ex-

haustion of state administrative remedies

was not required in an action brought pur-

ae, Gp GR TFs, Fe i cece vcccntecsccscecencssnccscone 5

ARGUMENT II:

The United States Court of Appeals for the

Fourth Circuit erred when it reversed the

judgments of the District Court in McCray

v. Burrell, # 74-1042 and McCray v. Smith,

# 74-1043 based on a finding that Respond-

ent McCray’s Eighth and Fourteenth

Amendment rights were violated under the

circumstances of those cases and remanded

for determinations on the merits.................... 23

RS TT eR FREE OMT RE DOSNT TTT AnD Te 26

APPENDIX:

Milton McCray, et al v. Robert Burrell, et al, 367

F. Supp. 1191 (D. Md. 1973), Motion to Dis-

ss ieniiccachiinciinsiineemisidiaieliainta nieseddlnaidbaiaiadinnndeddainn la

Ae - il

Habeas Corpus & 42 U.S.C. § 1983 Civil Rights

Suits filed by Milton McCray in the United

States District Court for the District of

RRR tee a AR tte ECR BERR Ere ae OTe

McCray v. Warden, Civil 72-69-N, Suit ................

McCray v. Warden, Civil 72-67-N, Suit ......000000....

McCray v. Warden, Superior Court of Baltimore

Washington v. Boslow, et al, 375 F. Supp. 1298

a sas

Stokes v. McClellan, et al, Civil 73-1182-B, Memo-

(SIA AAS a eae nT ROM oe ORE ROP RIE PRT DE Oe

McCray, et al v. Burrell, et al, Nos. 74-1042,

TERE, FO TEG, CHIEU cncccccccscccecsccecccncasesocsese

Statutes and Constitutional Provisions Involved:

i EE AIS MI ee ORES R, Bt As ae OR

Sa aa

42 U.S.C. § 1983........ siessgthtiauiiakadbeineantndéeineadicdbeanmeaidien

Annotated Code of Maryland, Article 41, § 204F

TABLE OF CITATIONS

Cases

Agee v. Hickman, 490 F.2d 210 (8th Cir. 1974)

Armsden v. Cataldo, 315 F. Supp. 129 (D. Mass.

I ah a a a a a

B's Co., Inc. v. B. P. Barber and Assoc., Inc., 391

pf Bp fF fo ES ee eee

Carter v. Stanton, 405 U.S. 669 (1972)......0.0..0..

Damico v. California, 389 U.S. 416 (1967)....... 16,

Egner v. Texas City Independent School Dis-

trict, 338 F. Supp. 931 (S.D. Tex. 1972).........

Gibson v. Berryhill, 411 U.S. 564 (1978)........0....

Hellman v. Colonial Insurance Co., 475 F.2d

I I

PAGE

49a

52a

5da

57a

58a

69a

72a

108a

17,18

18,19

q;.

- PAGE

Houghton v. Shafer, 392 U.S. 639................... 16, 17,18

Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966) 25

Huffman v. Pursue, 95 S. Ct. 1200 (1975)............ 19

Hyde v. Fitzberger, 365 F. Supp. 1021 (D. Md.

i siden heieis\ipticinidehnceiiciaccanineiedsiadiaiiiabaulicdacakaaaeaecesbekediniiniis 15

Kochie v. Norton, 343 F. Supp. 956 (D. Conn.

lili an tanneries teadaniatit cla lalate 18

Landman v. Royster, 333 F. Supp. 621 (E.D. Va

| SSS EET arte tesla eae ae Aron Ae Po ES a 25

Landman v. Royster, 354 F. Supp. 1032 (E.D.

TUNIC MINIT sincistiarltacieddaseaddahtetiionsddasiibacadabesbibicipnliainaatia 25

McCray v. Burrell, 367 F. Supp. 1191 (D. Md.

ITT iiss iceshesinashisgasidainapadiaattbaidpacsiaiandtudladsemmicdcuecaaueaiand passim

McCray v. Smith, 367 F. Supp. 1191 (D. Md.

RARE RAINS EC NOT pe EN eS eee a Fee me passim

McNeese v. Board of Education, 373 U.S. 668

SRE TONE as lh maton: re OS Oe AO a 16,17

Metcalf v. Swank, 406 U.S. 914 (1972)................. 16

Monroe v. Pape, 365 U.S. 167 (1961)..........0..08. 16,17

Preiser v. Rodriguez, 411 U.S. 475 (1973)............. 16,18

Procunier v. Martinez, 94 S. Ct. 1800 (1974)....... 19

State of Maryland v. McCray, 267 Md. 111 (1972) 6

Steffel v. Thompson, 415 U.S. 472 (1974)............. 16

Stokes v. McClellan, United States Court of

Appeals for the Fourth Circuit (4-10-75)....... passim

Washington v. Boslow, 375 F. Supp. 1298 (D.

ARREARS Aenea” Sie Oe ea ee passim

Wilwording v. Swenson, 404 U.S. 249 (1971) 16,17

18, 21

Wolff v. McDonnell, 94 S. Ct. 2963 (1974)........... 19

Wright v. McMann, 387 F.2d 519 (1967).............. 25

Younger v. Harris, 401 U.S. 37 (1971)... 19

PAGE

Rules

Federal Rules of Civil Procedure:

iets GD...........ncorsudeovecesaneciansenesanasssiiamatndaiasiameumaanaa 25

Statutes

Florida Statutes:

Chnetee B66.GD qn vccecceccvsrreneressessessvevsseusenaisennivenneti 10

Georgia Code Annotated:

Betty 1G 116 ccccceccecvcesecevesccesovtstsevisuenmmeenctans 10

Illinois Revised Statutes:

Chapter 38—

Dasthiass TET BG icccncssnctentsniiuiaaan 12

Annotated Code of Maryland:

Article 41—

Betis BE wecccencvecnsscincneninimmaaal passim

Minnesota Statutes:

Betas DEE GG wcncecscnsniiinientininaamaen 12

General Statutes of North Carolina:

Article 11—

Rocticnn 148-1681 Da erccccocscccssstesssstietesnnntecnen 10

United States Code Annotated:

Title 28—

etints BOE ..ciciccncactecsusdeiisdinmaaenan 2

ne thams BIIEE.... .cviccoosseydiccenenesaneneneee 3

Title 42—

Batiats 1B icccnsscsnenne passim

Miscellaneous

Semi-Annual Report of the Director of the Ad-

ministrative Office of the United States

OL) (| earns ye 5

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No. Misc.

ROBERT BURRELL, Petitioner,

MILTON McCRAY, Respondent.

SERGEANT V. D. SMITH, erc., Petitioner,

MILTON McCRAY, Respondent.

GERALD McCLELLAN, et AL., Petitioners,

JAMES E. X. STOKES, Respondent.

DR. HAROLD M. BOSLOW anpb

DR. DOMINGO C. SORONGON, Petitioners.

JOHN WASHINGTON, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT oF APPEALS

FoR THE FouRTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to

review the Opinion and Judgment of the United States

Court of Appeals for the Fourth Circuit entered in the

above cases on April 10, 1975.

-_ <— = P . — —

OPINIONS BELOW

The Opinion and Judgment of the United States

Court of Appeals for the Fourth Circuit, as yet

unreported, appears in the Appendix at pages 72a-107a.

The Opinion of the United States District Court for the

District of Maryland in McCray v. Burrell and McCray

v. Smith, 367 F. Supp. 1191 (D. Md. 1973), appears in the

Appendix at pages la-58a. The Opinion of the United

States District Court for the District of Maryland in

Washington v. Boslow, 375 F. Supp. 1298 (D. Md. 1974),

appears in the Appendix at pages 58a-69a. The Opinion

of the United States District Court for the District of

Maryland in Stokes v. McClellan appears in the

Appendix at pages 69a-7la.

JURISDICTION

The Opinion and Judgment of the United States

Court of Appeals for the Fourth Circuit was entered on

April 10, 1975. See Appendix at page 73a. This Petition

for Writ of Certiorari was filed less than ninety days

from the date aforesaid and the jurisdiction of this

Honorable Court is invoked pursuant to 28 U.S.C. §

1254(1).

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for

the Fourth Circuit erred when it held that exhaustion of

State administrative remedies was not required in an

action brought pursuant to 42 U.S.C. § 1983.

2. Whether the United States Court of Appeals for the

Fourth Circuit erred when it reversed the judgments of

the District Court in McCray v. Burrell, #74-1042 and

McCray v. Smith, 74-1043, based on a finding that

Respondent McCray’s Eighth and Fourteenth Amend-

ment rights were violated under the circumstances of

those cases and remanded for determinations on the

merits.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The constitutional provisions involved are the Eighth

and Fourteenth Amendments to the Constitution of the

United States. The statutory provisions involved are 42

U.S.C. § 1983 and Article 41, Section 204F, Annotated

Code of Maryland. The statutes and relevant constitu-

tional provisions appear in the Appendix at pages 108a-

113a.

STATEMENT OF THE CASE

The complaints in these cases invoked the jurisdic-

tion of the United States District Court for the District

of Maryland pursuant to 28 U.S.C. § 1343(3) and (4), 42

U.S.C. § 1983 and the Constitution of the United States.

Respondent McCray sought relief pursuant to 42

U.S.C. § 1983 for deprivations of liberty without due

process of law and for imposition of cruel and unusual

punishment arising out of two separate incidents in

which he was allegedly placed naked in an isolation cell

for 48 hours as a result of allegedly disruptive and

emotionally unstable behavior on his part. The United

States District Court for the District of Maryland in

McCray v. Burrell, 367 F. Supp. 1191 (D. Md. 1973),

found no constitutional violations on the part of

Petitioners Burrell and Smith and further found that

they had acted in accordance with standard operating

procedures which were not violative of Respondent's

civil rights. The United States District Court further

found that Respondent was required to exhaust his

State administrative remedies provided in Article 41,

Section 204F, Annotated Code of Maryland.

Respondent Stokes filed a pro se complaint pursuant

to 42 U.S.C. § 1983 alleging that prison officials had

violated his First and Fourteenth Amendment rights by

denying him access to political newspapers. The United

States District Court, on the Motion of Petitioner

McClellan herein, dismissed the case for failure to

exhaust State administrative remedies.

Respondent Washington filed a pro se complaint

pursuant to 42 U.S.C. § 1983 alleging injuries and

violations of his constitutional rights as a result of the

failure of a prison doctor to provide him with necessary

medical care. The United States District Court summar-

ily dismissed the complaint for failure to exhaust State

administrative remedies which the District Court found

to provide fair and adequate redress for the Petitioner.

McCray v. Burrell, McCray v. Smith and Stokes v.

McClellan were consolidated for purposes of appeal and

the same were heard before a three-judge panel of the

United States Court of Appeals for the Fourth Circuit

on June 6, 1974. Following argument, the United States

Court of Appeals for the Fourth Circuit, by Order dated

June 27, 1974, consolidated Washington v. Boslow with

the above three cases and the same were heard en banc

before the United States Court of Appeals for the

Fourth Circuit on October 1, 1974.

On April 10, 1975, the United States Court of Appeals

for the Fourth Circuit held that exhaustion of State

administrative remedies was not required prior to

invoking Federal jurisdiction, thus reversing all of the

judgments below and remanded the cases of Respond-

ents Stokes and Washington for determination on the

merits and remanded the cases of Respondent McCray

for further proceedings in accordance with their finding

that Respondent McCray was denied his rights under

the Eighth and Fourteenth Amendments to the United

States Constitution.

REASONS FOR GRANTING THE WRIT

ARGUMENT I

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT ERRED WHEN IT HELD THAT EXHAUSTION OF

STATE ADMINISTRATIVE REMEDIES WAS NOT REQUIRED IN

AN ACTION BROUGHT PURSUANT TO 42 U.S.C. § 1983.

This case focuses on the growing and ever more

pressing problem of prisoners civil rights petitions that

has swelled the federal court dockets in recent years. In

fiscal year 1966, 218 civil rights complaints were filed

by prisoners in the United States Courts nationwide. In

contrast, the same figure has grown to 5,236 cases in

the fiscal year 1974. During the first half of the fiscal

year 1975, 3,019 prisoner petitions were filed nation-

wide. Semi-Annual Report of the Director of the

Administrative Office of the United States Courts,

(1975), at p. 19. In the District Courts of the Fourth

Circuit alone, 604 petitions pursuant to 42 U.S.C. § 1983

have already been filed by prisoners during the first

half of fiscal 1975. Ibid., at p. A-11.' An increasing

number of these cases have and will continue to find

their way to this Honorable Court. The number of truly

' This figure compares significantly with 69 petitions filed

in the First Circuit, 251 petitions in the Second Circuit, 248

petitions in the Third Circuit, 717 petitions in the Fifth

Circuit, 633 petitions in the Sixth Circuit, 513 petitions in the

Seventh Circuit, 286 petitions in the Eighth Circuit, 563

petitions in the Ninth Circuit, 199 petitions in the Tenth

Circuit, and 22 petitions in the District of Columbia.

= - Ss

meritorious petitions among these is notably quite

small. As Chief Judge Northrop remarked in his

opinion in McCray v. Burrell, 367 F. Supp. 1191, 1206

(D. Md. 1973), (App. 27a), “. . . it seems a misallocation

of resources to impose the burden:of sifting through the

mass of these petitions on federal judges, let alone on

Supreme Court Justices. Moreover — and this is at least

as important — these overburdened judges and Jus-

tices, charged with so many other highly important

functions, are less likely to give full and careful

attention to each petition than officials whose special

task it might be to do so.” Thus, not only do prisoner

civil rights petitions increase the already overburdened

case load of federal judges, but their substantial volume

is, in fact, counter-productive to the meritorious pris-

oner suits. Access to the federal courts is only illusory

when a prisoner’s complaint receives the summary or

even long delayed consideration that a federal judge

must necessarily give under the circumstances. The

better solution would be to require initial resort to State

administrative remedies to screen out those claims

which are spurious or frivolous, thus providing needed

relief for judicial case loads as well as insuring a more

effective, prompt, and thorough consideration of indi-

vidual petitions via an inmate grievance procedure. In

addition to limiting those cases to be heard by the

federal courts to those of constitutional dimension, a

prior administrative hearing will provide the federal

courts with a complete record of such proceedings, and

thereby facilitate the role of the federal judiciary once

jurisdiction is properly invoked.

Maryland now has in operation a viable and effective

inmate grievance procedure which provides for a

prompt and fair hearing of grievances and complaints.

See State of Maryland v. McCray, 267 Md. 111, 144

(1972). By Chapter 210, Acts of 1971, effective July 1,

1971. and codified as Article 41, Section 204F, Anno-

tated Code of Maryland, the Inmate Grievance Commis-

sion was established as a separate agency within the

Department of Public Safety and Correctional Services

and began operation on November 30, 1971, following

the appointment of an Executive Director.

The Commission consists of five members appointed

by the Governor, two of whom are lawyers, two of

whom are “persons of knowledge and experience in one

or more of the fields under the jurisdiction of the

Department of Public Safety and Correctional Ser-

vices’, and one of whom is a member of the public at

large. Article 41, Section 204F(a). At present, the

members of the Commission include:

James G. Boss — Chairman — attorney at law;

James V. Bennett — attorney at law — nationally

known penologist and retired Director of the

Federal Bureau of Prisons;

Maceo M. Williams — a former correctional officer

at Patuxent Institution and probation officer for

Baltimore City who is now an official of Balti-

more’s Concentrated Employment Program, an

anti-poverty program;

Edgar A. Fulton — a retired insurance salesman

who is now an industrial relations consultant to

the United States Bureau of Prisons, and a member

of the Maryland Advisory Board for Corrections,

Parole and Probation:

Ralph S. Falconer — retired from the Maryland

Department of Parole and Probation. See McCray,

supra, 267 F. Supp. at p. 1202, (App. 19a).

Any person confined in a penal institution or a

patient at Patuxent Institution who “has any grievance

or complaint against any officials or employees of the

Division of Correction or Patuxent Institution .. .

may submit such grievance to the Inmate Grievance

Commission. Article 41, Section 204F(d) (hereinafter

referred to as §). The Commission is given original

administrative jurisdiction over all grievances. Prelimi-

narily, each grievance is screened by the Executive

Director and a complaint may be dismissed if it “is

determined to be on its face wholly lacking in merit

* or where the Commission obviously lacks jurisdic-

tion. § (c). The order of dismissal is forwarded to the

complainant and constitutes a final order for purposes

of judicial review. If a complaint is not dismissed.

withdrawn or informally resolved, the Commission

must hold a prompt hearing. § (f). At least three

Commissioners must be present for each hearing and

decisions are made by a majority of those Commission-

ers. A voice-writer record is made of all hearings and is

transcribed if judicial review is sought. The decision is

issued in the form of an order containing findings of

fact, conclusions of law and the disposition of the

complaint. § (f). A complaint may be dismissed at this

point if “wholly lacking in merit”. Such order of

dismissal is a final order for judicial review.

If a complaint is found to be meritorious, the

(Commission notifies the Secretary of the Department of

Public Safety and Correctional Services who may either

(1) affirm the decision or (2) reverse or modify it if he

disagrees with the findings and conclusions of the

(‘ommission. The Secretary then may order the approp-

riate official of the institution to accept in whole or in

part the recommendations of the Commission or take

whatever action he deems appropriate in light of the

Commission’s findings. § (f)(2). The Secretary’s order is

final for the purposes of judicial review.

The Commission is empowered to require by sub-

poena the production of documents by the person or

institution under investigation and it may also require

the attendance of witnesses and the production of

relevant evidence by those witnesses. § (g). An inmate

has the right to appear in person, to call witnesses on

his behalf subject only to the right of the Commission

to limit the number or testimony of the witnesses based

on relevance and materiality. Furthermore, the inmate

is given the right to cross-examine all witnesses. If an

inmate requests counsel, he may be permitted such

representation at his own expense and may also utilize

the services of an inmate representative or other outside

representative. The aforementioned rights of the inmate

“shall not be unreasonably withheld or restricted by the

Commission.” § (h).

Upon entry of a final order, the inmate may initiate

judicial review of the Orders of the Commission and the

Secretary in the Circuit Court of the County or city

where he is incarcerated. § (1). Such review is restricted

to the record and limited to a determination of whether

there was any deprivation of rights secured by the

federal or state constitutions or laws.

As the District Court found, “. . . there is a viabie

alternative to direct federal judicial intervention in the

State correctional process via § 1983.” McCray, supra,

367 F. Supp. at p. 1204, (App. 24a). Where there exists a

complete and _ self-executing administrative process

such as that present in the Inmate Grievance Commis-

sion, which can resolve complaints justly and promptly,

the interest of both the courts and the inmates would be

better served by requiring exhaustion of the administra-

tive remedies.

Not only has Maryland instituted a fair and expe-

dient procedure for handling inmate grievances, but

numerous other states as well have established procedu-

ral mechanisms for prisoner complaints. The State of

North Carolina, for example, has created an inmate

grievance procedure substantially similar to that of the

State of Maryland.” Other programs, while dissimilar to

procedure in Maryland, clearly evidence a trend toward

resolving prisoner grievances on the state administra-

tive level as an alternative to seeking relief through the

federal court system. '

- Under Article 11, General Statutes of North Carolina, §§

148-101-113, North Carolina has established a five-member

Inmate Grievance Commission, which conducts hearings on

those complaints found to be meritorious. The statute also

provides for review of the Commission’s decision by the

Secretary of Correction and eventually by the state courts. At

the hearings, the inmate has the right to be present, cross-

examine witnesses, and be represented by an employee of the

Department of Correction.

A. The State of Florida has established an inmate

grievance procedure under Inmate Treatment Directive No.

31(7-1-74), issued pursuant to Florida Statutes, Chap. 944.09.

Grievances are formally submitted to the Assistant Superin-

tendent within thirty days of their occurrence. He then either

handles it personally or orders an investigation. Institution

officials have thirty days within which to respond to the

inmate. If the grievance is not resolved, the inmate may

appeal to the Director, who has thirty days to make a

response. Records are to be kept of all grievances, responses

and appeals.

B. In Georgia, inmate grievance procedures are author-

ized in the Georgia Code Ann., § 125-1-2-14. The mechanics of

the statute are outlined in a memorandum from the

Commissioner of Corrections to all state institutions dated

December 2, 1974. The grievance is first submitted to the

Deputy Warden/Superintendent to review and investigate.

He may hold a private conference with the inmate to discuss

a solution to the problem. Appeal to the Warden/Superint-

endent is the next step. Then, if the inmate is still

dissatisfied, he may appeal to the Regional Director within

Following an extensive hearing in McCray v. Burrell,

367 F. Supp.) supra, Chief Judge Northrop found that

five days. The Regional Director has thirty days to respond

and route the grievance back to the Deputy Warden /Super-

intendent for possible conferences. Finally, the inmate may

appeal to the Commissioner and subsequently to the state

courts.

C. Virginia’s inmate grievance procedure was imple-

mented in September, 1973 (revised November, 1974), by the

Department of Correction for its own use. A prisoner first

files his grievance with the officer in charge of the

institution. After an investigation and hearing, if necessary,

the Superintendent has eight days to respond to the inmate.

An appeal then lies to the Deputy Director of Corrections who

has fifteen days to reach a decision. A hearing or investiga-

tion may be conducted if necessary. The decision of the

Director is final.

D. In New Mexico, an inmate must submit his grievance

to grievance officers who then refer the same to case workers.

A case worker has five days to respond and the inmate may

appeal to the three-member grievance committee which has

ten days within which to act. Finally, appeal lies to the

Corrections Commission which must act at its next regularly

scheduled meeting, provided the grievance is submitted at

least five days prior thereto. Records of findings and actions

taken are kept at each level.

E. An inmate in Idaho may seek review of decision of the

Adjustment Committee (punitive) or Classification Commit-

tee (administrative classification) by the Chief of Habilita-

tion within three days. Next, he may appeal to the Warden,

who has five days to respond, and then to the Director of

Correction, who has ten days to render a decision. Finally,

the inmate may appeal to the Board of Correction which will

review the case at its next meeting (about six times yearly).

Idaho’s program is administrative with no supporting

legislation.

F. Missouri’s inmate grievance procedure is outlined in a

memorandum from the Department of Corrections to all state

institutions dated June 28, 1974, Bulletin No. 55. An inmate

is given thirty days to file his complaint with the Director of

the Division, who will refer it to the Director of Program

Services or Support Services, who then has fifteen days to

investigate the case and prepare a report. If it is not resolved

there, the matter is referred to the Director, who may appoint

the jurisdiction of the Inmate Grievance Commission

“ . . mirrors the traditional areas of § 1983 jurisdiction

a panel of three to consider the problem. If an inmate is still

dissatisfied, the matter is submitted within three days to the

Director. If not referred to a panel at -the outset, the Director

has thirty days to render a decision.

G. Louisiana has a purely voluntary grievance procedure

not established by statute.

H. Arkansas has recently established a grievance proce-

dure consisting of several administrative review officers and

an appellate procedure within the institution.

I. Pursuant to Illinois Revised Statute, Chap. 38, 1003-8-8

the Director of the Illinois Department of Corrections is

required to “establish procedures to review grievances of

committed persons.” Regulation No. 45 of the Administrative

Regulations implements the statutory directive. It estab-

lishes a system whereby the inmate first files with the

personnel in the institution where he is confined. Then the

matter is reviewed by the institutional inquiry board, which

meets weekly and where the inmate may appear. A written

report of its findings must be filed within ten days. These

findings are then reviewed by the Chief Administrative

Officer of the institution where the grievance arose. That

officer has five days to render a decision and an appeal lies to

the Assistant Director of the Adult Division of the Depart-

ment of Correction and to the Director of the Department,

who may affirm or refer the matter to the Administrative

Review Board. Ultimate findings and recommendations are

to be embodied in reports filed with the Director and

Assistant Director, subject to their final determination.

J. New Jersey, while without enabling legislation for an

inmate grievance procedure, does have an Ombudsman who

examines complaints of state prison inmates.

K. Minnesota also has an Ombudsman for corrections

and a staff inmate counsel at the state prison. The office of

Ombudsman was created by Minnesota Statutes, § 241.41

(1974) Laws of Minnesota, 1973, Chap. 553, § 5. He has the

power to investigate complaints, order persons to appear,

give testimony and produce documents, and bring actions in

the appropriate state court. He may receive complaints about

actions of any admir. strative agency or on his own motion,

initiate and investigation such an action. After investigation,

he makes recommendations to the agency. His conclusions

and suggestions may be published by transmitting them to

the office of the Governor.

in prisoner cases.” McCray, supra, 367 F. Supp. at pp.

1202, 1208 (App. 19a-20a, 30a-32a). The District Court

L. Hawaii has a state Ombudsman who is selected by the

legislature. The program operates on a state-wide level.

M. Oregon has a similar program to that of Hawaii

except that the Ombudsman is appointed by the Governor.

N. Ohio and South Carolina likewise have statewide

Ombudsman programs.

O. Connecticut’s Ombudsman is selected by a private,

nonprofit agency and functions independently of the agency

that he monitors.

P. In Iowa, the Omsbudsman is an investigator for the

Citizens Aide and is selected by the legislature. Like

Connecticut’s Ombudsman, Iowa’s version comtemplates

that the Ombudsman will function independently of the

agency under investigation.

Q. In Wisconsin, inmates may refer their complaints to

the Warden who may convene a staff inmate commission to

consider the complaints and make recommendations. There

is also an Assistant Attorney General who functions as a

specially appointed investigator who reviews the complaints.

R. The California Youth Authority inmates and staff

members drew up a procedure where the first level hearing

consists of presentation of complaints, investigation and

resolution. Final review is conducted by a tri-party panel

comprised of a member appointed by the complainant, a

member appointed by the correctional administration and a

chair-person who is a _ professional volunteer arbitrator

recruited by the American Arbitration Association.

S. In four states, inmate unions have sought recognition

as bargaining agents (New York, Michigan, Massachusetts

and Connecticut). Two states, Massachusetts and Rhode

Island, have recognized unions there and negotiate with

them.

T. The New Hampshire State Prison in Concord, New

Hampshire, has had in effect since May, 1973 an inmate

grievance procedure. Annually, the members of the general

prison population elect approximately eighteen “shop repres-

entatives’. They, in turn, appoint five spokesmen who meet

with the Warden on a bi-weekly basis and, when necessary,

with the Deputy Warden or Chief Custodial Officer. The

meeting agenda encompass a full range of topics; of central

concern is the presentation, discussion and attempted

resolution of inmate grievances.

further found that the Inmate Grievance Commission

also had those equity powers exercised by the federal

courts and the power to entertain class actions, grant

injunctive relief, consider administrative matters and

recommend changes in policies. The only power which

the Inmate Grievance Commission lacked was the power

to award money damages, although it was held to have

the power to award restitution of or payment for

property improperly taken. McCray, supra, 367 F. Supp.

at pp. 1208-1209, (App. 30a-35a). The District Court also

observed that the “. . . . powers of the Commission can,

in most cases, be exercised considerably more quickly to

remedy offensive patterns of official conduct that can

the powers of the federal courts”; that the practical

enforceability of orders is greater when the person

passing the order has the power to discipline and fire

and that the average time from the filing of a complaint

to a decision was not excessive. McCray, supra, 367 F.

Supp. at p. 1195, 1209, (App. 5a-7a, 33a-35a). In

summary. the District Court found that while the

Inmate Grievance Commission did not have the power

to award money damages, per se, this did not make the

Inmate Grievance Commission an ineffective remedy

and stated in summary:

“However, the only thing which the imposition of

this exhaustion requirement would do in these

cases is to work a postponement of the ultimate

award of damages in a meritorious § 1983 suit... .

Of course, upon exhaustion of the State remedy, an

inmate, in a proper case, may still call upon the

equity power of the federal court if the exercise

thereof is needed in a particular case. If, of course,

the remedy of damages is needed to make a

prisoner whole again in a particular case, that

remedy will likewise be available to the prisoner

after he has exhausted the state administrative

procedure. . . . Unlike the situation with respect to

injunctive or other equity-type relief, there is no

sense of immediacy attendant upon the awarding

of money damages to redress particular depriva-

tions of constitutional rights... . At any rate, it is

clear that whatever postponement of the right to

money damages under § 1983 is worked because of

the imposition of an exhaustion requirement does

not amount to a deprivation of the ultimate right to

such relief in theory, nor is it a deprivation in

practical effect. This is true because an award of

money does not require the immediate attention

which ought to be given to demands for equitable

relief, which in fact is given under Maryland

procedure. The key point is that the ultimate right

to damages is preserved during the complainant's

pursuit of his state administrative remedies, and is

not destroyed by a requirement that he resort to

these remedies before bringing his federal action

under § 1983.

“Therefore, this Court concludes that before it

will exercise jurisdiction over a prisoner § 1983

complaint, the inmate must exhaust the available

state administrative remedy provided by the

Maryland Inmate Grievance Commission proce-

dure. Even if the complaint seeks only monetary

damages, this avenue of relief should be exhausted.

The claim for monetary damages is inextricably

tied to prison regulations and disciplinary proce-

dures. The Maryland Inmate Grievance Commis-

sion provides a forum with built-in judicial review

which can more expertly sort out the meritorious

from the frivolous.”” McCray, supra, at pp. 1208-

1210, (App. 30a-35a).

See also Hyde v. Fitzberger, 365 F. Supp. 1021 (D. Md.

1973) and Washington v. Boslow, 375 F. Supp. 1298 (D.

Md. 1974), (App. 58a et seq.).

In light of its decision, the Fourth Circuit did not rule

on the adequacy of the administrative remedy. (App.

84a). However, Circuit Judge Widener in his separate

opinion stated:

“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 administra-

tive 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. McCray,

supra, ___. F.2d at p. (App. 106a-107a).

In its opinion, the Fourth Circuit held that under

Monroe v. Pape, 365 U.S. 167 (1961); McNesse v. Board

of Education, 373 U.S. 668 (1963); Damico v. California,

389 U.S. 416 (1967) (per curiam); Houghton v. Shafer,

392 US. 639 (1968) (per curiam); Wilwording v.

Swenson, 404 U.S. 249 (1971) (per curiam); Carter v.

Stanton, 405 U.S. 669 (1972) (per curiam); Metcalf v.

Swank. 406 U.S. 914 (1972) (mem. op.); Steffel v.

Thompson, 415 U.S. 472 (1974); and Preiser v. Rodri-

guez, 411 U.S. 475 (1973), exhaustion of state adminis-

trative remedies was not required in a suit filed

pursuant to 42 U.S.C. § 1983.

In Monroe, supra, this Honorable Court stated that

the primary purposes of 42 U.S.C. § 1983 were to

override certain state laws; provide a remedy where

state law was inadequate and to provide a federal

remedy where a state remedy, though adequate in

theory, was unavailable in practice. Monroe, supra, at

pp. 173-174.

This Honorable Court then stated that as the federal

remedy was supplementary to any provided by the

state, a complainant need not first seek the state remedy.

Monroe, supra, at p. 183. Monroe, however, dealt with

state judiciai and not administrative remedies. Justice

Frankfurter, in his dissent, would not have barred ex-

haustion of state remedies. Monroe, supra, at p. 237.4

Although McNeese, supra, dealt with an adminis-

trative procedure, this Honorable Court clearly held that

the remedy was not adequate and the protections too

tenuous to require resort to them. McNeese, supra, at

pp. 675-676. In Damico, supra, this Honorable Court

relied on Monroe, supra, and McNeese, supra, without

discussing the adequacy of the State administrative

remedy. Justice Harlan, in his dissent, took issue with

the principle that there could never be resort to an

adequate administrative remedy. Damico, supra, at p.

419.° Houghton, supra, also noted the probable futility

of having a state prisoner resort to administrative

remedies. Houghton, supra, at p. 252.

Finally, in Wilwording, supra, this Honorable Court.

while apparently reaffirming the non-exhaustion doc-

trine in § 1983 cases, inserted the usual reference to the

probable futility of those remedies although the

remedies requiring exhaustion in Wilwording appear to

have been state court remedies. Wilwording, supra, at

pp. 250-252. See also the separate opinion of Judge

Widener in McCray. supra, ___ F.2d ___, (App. 104a-

‘ In Egner v. Texas City Independent School District, 328

F. Supp. 931 (S.D. Tex. 1972), that Court construed the word

“supplementary” not as being “supersessive” or “subsum-

ing” but as being a reiteration of the third statutory purpose

of § 1983, that of providing a federal remedy when the state

remedy, theoretically available. was in practice illusory.

Egner, supra, at pp. 934-935.

* In Armsden v. Cataldo, 315 F. Supp. 129, 131 (D. Mass.

1970), that Court again reiterated that in Monroe, supra, and

McNeese, supra, that the available State remedies could not

afford actual relief to the plaintiffs and the factual basis of

those cases strongly suggested racial discrimination. Hough-

ton, supra, involved an inadequate and illusory remedy and

Damico restated Monroe and McNeese without discussion or

analysis.

105a). Similar sentiments regarding the apparent

exhaustion requirement were voiced in Kochie v.

Norton, 343 F. Supp. 956 (D. Conn, 1972), where that

Court stated that the main holding of Damico, supra;

Houghton, supra; and Wilwording, supra, was that

state court remedies need not be exhausted and, further,

that “{N]Jo decision of the Supreme Court squarely

holds that the complaint of a state prisoner,

which, if well-founded, is capable of prompt and

complete redress by an administrative official, can be

brought directly into a federal district court under §

1983 without any attempt at exhaustion of administra-

tive remedies.” Kochie, supra, at pp. 959-960.

While the Fourth Circuit felt that Preiser v. Rodri-

guez, 411 U.S. 475 (1973), is significant for what it did

not say rather than for what it did say, the Fourth

Circuit stated that this Honorable Court had the

opportunity in that case to impose exhaustion and

failed to do so. McCray, supra, F.2d - (App.

79a-80a). While it is true in Preiser, supra, that this

Honorable Court failed to impose an _ exhaustion

requirement, it is clear that that failure was based on

other considerations and this Honorable Court was not

presented with an adequate state administrative

remedy. Further, the discussion by this Honorable

Court in Preiser regarding conditions of confinement

and federal state comity shows clearly that those

conditions are more applicable to civil rights suits than

those presented in habeas corpus actions. Preiser,

supra, 411 U.S. at p. 93 S. Ct. at pp. 1837-1838. See

also McCray, supra, 367 F. Supp. at p. 1198, (App. 1la-

13a).

In Gibson v. Berryhill, 411 U.S. 564 (1973), this

Honorable Court seemed to indicate that in certain

instances, exhaustion of administrative remedies would

be required, but found that the administrative remedies

in Gibson were so defective and inadequate that they

denied Plaintiffs due process of law. Recent cases have

left the question of exhaustion of § 1983 actions

unresolved. In Procunier v. Martinez, ___ U.S. ___., 94

S. Ct. 1800 (1974), Justice Powell stated that the “.. .

problems of prisons in America are complex and

intractable, and, more to the point, they are not readily

susceptible of resolution by decree. . . . [C]jourts are ill-

equipped to deal with the increasingly urgent problems

of prison administration and reform.’ Judicial recogni-

tion of that fact reflects no more than a healthy sense of

realism.” Procunier, supra, 94 S. Ct. at p. 1807.

[Footnote by the Court]. In footnote 9 to the Opinion in

that case, Justice Powell recognized that the courts

were ill equipped to act as front line agencies to resolve

prisoner grievances and noted suggestions for institut-

ing internal administrative procedures. Procunier,

supra, 94S. Ct. at p. 1807. In Wolff v. McDonnell, —__

U.S. ___, 94 S. Ct. 2963 (1974), this Honorable Court,

while not discussing the question of exhaustion in §

1°83 cases, did formulate a distinction between due

process rights afforded those incarcerated and those in

free society. Wolff, supra, 94 S. Ct. at p. 2977. See also

the separate opinion of Judge Widener in McCray,

supra, ___. F.2d ___. (App. 105a).

Finally, in Huffman v. Pursue, ___ U.S. ___, 95 S.

Ct. 1200 (1975), this Honorable Court held that in

certain circumstances, an individual would be required

to exhaust his state appellate remedies before seeking

relief in District Court unless he could bring himself

within an exception specified in Younger v. Harris, 401

U.S. 37 (1971). “The importance of the ruling [Huffman

v. Pursue] 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." McCray, supra, —.— F.2d —_, (App.

106a, separate opinion of Judge Widener).

The Fourth Circuit recognized that as each of the

cases presented the same question of exceptional

importance, they were consolidated and heard en banc.

McCray, supra, —— F.2d —_, (App. 74a). While

recognizing that the District Court in Washington v.

Boslow, supra, had found the Inmate Grievance

Commission Act a fair and adequate remedy, notwith-

standing the inability of the Commission to award

damages in an appropriate case, the Fourth Circuit held

that, under the law, it could not require exhaustion.

“We keenly appreciate the force of the factors

identified by the District Court in McCray and

Washington as supporting a policy determination

that exhaustion of available administrative remed-

ies should be required of prisoners of correctional

institutions in Maryland as a prerequisite to a suit

under § 1983. We recognize the burden which the

increasing flood of prisoner complaint litigation

places upon the already over-taxed District Courts

as well as ourselves. Nevertheless, we are con-

strained to conclude that the holding that exhaus-

tion is required may be reached only by either

legislation conditioning resort to 42 U.S.C. § 1983

upon the exhaustion of available administrative

remedies, or by the Supreme Court’s re-

examination and modification of its controlling

adjudications on the subject. Congress has not

enacted such legislation. The Supreme Court has

not yet begun a re-examination of its previous

holdings and we have no basis on which to predict

that it will, or, if so, with what result. We think

that we have no alternative but to hold that

exhaustion may not be required.” McCray, supra,

—___._ F.2d ___, (App. 75a-76a).

The Fourth Circuit further stated that “... it is

inappropriate to consider the policy considerations

which might dictate a different course of decision. They

must be addressed to the Supreme Court, which alone

can overrule its prior decisions, or to the Congress,

which has authority to amend the statute. Our duty is

clear: We must follow the Supreme Court, not atte: st to

lead it. We must hold that exhaustion is not required.”’

McCray, supra, ___. F.2d (App. 83a). Circuit Judge

Field, in his separate opinion, felt that he, too, had no

alternative but to hold that exhaustion would not be

required in a civil rights action. ___. F.2d (App.

97a-98a). In his separate opinion, Judge Widener, while

concurring in the result of the majority solely because

of part II of Wilwording v. Swenson, supra, stated that:

“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. . . . Since no policy reason exists against

exhaustion and protecting the liberty interests as

shown by the decisions of the Supreme Court, I can

find no policy interests which exist 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.” _. _ F.2d _, (App.

106a-107a).

Circuit Judge Russell joined in Judge Widener’s

separate opinion.

To deny review of the decision below of the United

States Court of Appeals for the Fourth Circuit — that

exhaustion of state administrative remedies is not a

prerequisite to federal intervention under §1983 —

would be to undermine the various reform measures

that the states have undertaken to date. Furthermore, it

would effectively stifle hopes of future programs to

ameliorate prisoner grievances through state mechan-

isms. Clearly, it is more beneficial to the inmate

complainant to have his problem resolved at the outset

or within a relatively short time thereafter, as most of

the aforementioned state grievance procedures contem-

plate, than to wait long months until the federal courts

process his claim. Settlement of the issue presented here

by this Honorable Court is, therefore, plainly in the

public interest and in the interest of innumerable

prisoners incarcerated nationwide.

The distinguishing feature of this case, absent from

all prior litigation, was clearly pointed out by Chief

Judge Northrop when he stated:

‘As previously pointed out, this Court does not

think that anything in the prior trend of decisions

prohibits this action, although, in all candor, the

cases would not seem to encourage it. But those

were different cases dealing with different facts,

with administrative remedies almost neolithic

compared to the Maryland Inmate Grievance

Procedure.” McCray, supra, 367 F. Supp. at p. 1207,

(App. 30a).

II.

THE UNITED STATES COURT OF APPEALS FOR THE FOUR1H

CIRCUIT ERRED WHEN IT REVERSED THE JUDGMENTS OF

THE DISTRICT COURT IN McCRAY v. BURRELL, #74-1042 AND

McCRAY v, SMITH, #74-1043 BASED ON A FINDING THAT

RESPONDENT McCRAY’S EIGHTH AND FOURTEENTH AMEND-

MENT RIGHTS WERE VIOLATED UNDER THE CIRCUM-

STANCES OF THOSE CASES AND REMANDED FOR DETERMI-

NATIONS ON THE MERITS.

The Fourth Circuit clearly erred in McCray v. Burrell,

No. 74-1042, and McCray v. Smith, No. 74-1043, when it

held that McCray’s consitutional rights have been

violated per se by his confinement in isolated cells for

limited periods of time. The Fourth Circuit held in

McCray v. Smith, No. 74-1043, that while the conditions

of confinement per se did not amount to a denial of his

rights, the failure to notify a psychiatrist/psychologist

pursuant to a Maryland Penitentiary administrative

directive may have amounted to such a denial. In

McCray v. Burrell, No. 74-1042, the Fourth Circuit

found two constitutional violations, that is, the condi-

tions of confinement in the mental observation cell and

the failure to comply with the administrative directive

to contact the psychiatrist/psychologist. See McCray v.

Burrell, __. F.2d ___, (App. 90a-92a). In its Opin-

ion, the Fourth Circuit acknowledged the extensive

findings of fact made by the District Court which

resolved questions of credibility and accepted those

findings. They also accepted the District Court’s

findings that respondent’s confinement in isolated

cells was not intended as punishment but was for

mental observation and as a precaution against a real

fear that Respondent would harm himself. McCray,

supra, ___ F.2d ___, (App. 84a, 87a-88a).

On appeal from the finding of a trial court in a non-

jury action, the findings of fact of the trial court will not

be set aside unless clearly erroneous and due regard will

be given to the opportunity of the trial court to judge the

credibility of the witnesses. Rule 52, Federal Rules of

Civil Procedure: B’s Co., Inc. v. B. P. Barber and

Assoc., Inc., 391 F.2d 130, 132 (4th Cir. 1968) and Agee

v. Hickman, 490 F.2d 210 (8th Cir. 1974). Further, the

decision and judgment of the trial court will not be

disturbed on appeal if it is supported by substantial

evidence and if the same is not erroneous as a matter of

law. Hellman v. Colonial Insurance Co., 475 F.2d 1061

(9th Cir. 1973), B’s Co., supra, at p. 138. See also the

separate opinion of Judge Widener, —— F.2d —_,

(App. 103a).

While not stating directly that the District Court’s

application of the facts to the law was clearly

erroneous, it is apparent that the decision of the Fourth

Cireuit on the merits of these two cases rested on its

finding that it did not like isolated confinement rather

than on a finding that the Eighth Amendment

prohibits such isolated confinement. Judge Field, in his

separate opinion, in which Judge Russell joined also

construed the majority opinion in this manner. Prelimi-

narily, Judge Field noted that the majority bolstered its

opinion by seizing “. . . upon an institutional directive

which stated that ‘an inmate who is displaying

mentally disturbed behavior may be placed in an

isolation cell for the inmate’s own safety, or that of the

—— o- < wwe ee

inmate population, until the psychologist/psychiatrist

is notified * * * . . . [TJhis somewhat novel constitu-

tional pronouncement utterly ignores the finding of the

District Judge that the principal reason for McCray’s

isolation was to insulate the other inmates of the South

Wing from the potentially dangerous and disruptive

consequences of McCray’s outrageous and flagrant

misconduct, including what the District Judge found

was his attempt ‘to burn his cell and possibly the entire

South Wing... .’ The fact is, however, he required no

such medical attention, and I am unaware of any

consitutional principle which requires or justifies the

incorporation of such an institutional directive into the

Bill of Rights.”” McCray, supra, ___ F.2d (App.

100a-102a).

As Judge Field noted, this was not a case dealing

with an arbitrary or pervasive pattern of conduct as in

Landman v. Royster, 354 F. Supp. 1032 (E.D.Va. 1073):

Landman v. Royster, 333 F. Supp. 621 (E.D.Va. 1971), or

to prolonged confinement in “strip cells” as in Wright v.

McMann, 387 F.2d 519 (1967); nor was there an attempt

at arbitrary punishment as in Howard v. Smyth, 365

F.2d 428 (4th Cir. 1966). See McCray, supra, ___ F.2d

—___., (App. 101a-102a).

Without a finding that the District Court was clearly

erroneous, the decision of the United States Court of

Appeals for the Fourth Circuit on the merits of these

two cases is clear error.

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Fourth Circuit.

Respectfully submitted,

FRANCIS B. BURCH,

Attorney General of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief of Criminal Division,

DONALD R. STUTMAN,

Assistant Attorney General,

One South Calvert Building,

Baltimore, Maryland 21202

For Petitioners.

APPENDIX

Milton McCray

Robert Burrell

Milton McCray

Sergeant V. D. Smith! (Badge No. 153)

Civ. A. Nos. 72-68-N, 72-234-N

United States District Court, D. Maryland

October 16, 1973

[367 F. Supp. 1191 (D. Md., 1973))

Charles F. Morgan, Legal Aid Bureau, Inc., Balti-

more, Md., for Plaintiff.

Francis B. Burch, Atty. Gen. of Md., and John P.

Stafford, Jr., Gilbert Rosenthal and Donald R. Stutman,

Asst. Attys. Gen., for defendants.

NortTHrRop, Chief Judge.

MOTION TO DISMISS

The plaintiff in these cases is an inmate of the

Maryland Penitentiary. He has filed these cases

‘ Defendant’s correct name is Bernard D. Smith.

alleging various deprivations and improprieties in the

actions taken against him by the defendants, which he

seeks to have this Court adjudicate under 42 U.S.C.

§ 1983. The captioned cases were consolidated for trial

with two other suits, Milton McCray v. John O.

Rutherford, Civ. No. 70-1409-N, and Milton McCray v.

Warden, Maryland Penitentiary, Civ. No. 72-69-N. The

former case was decided in a separate opinion, and the

latter was voluntarily dismissed by the plaintiff before

the commencement of trial.

In a joint motion the defendants have moved to

dismiss the complaint on the grounds that Chapter 210,

Laws of Maryland, 1971, established an Inmate

Grievance Commission, whose duties are to investigate

and correct grievances asserted by individuals incarcer-

ated in penal institutions in the State of Maryland. The

defendants contend that this unique procedure, which

permits a full hearing and subsequent judicial review,

requires the plaintiff to exhaust these available state

administrative remedies.

The problems of scheduling necessitated that the

Court hear arguments on the motion immediately prior

to the commencement of trial. Such problems are

inherent to any prisoner action against a _ penal

institution because of the security risks which arise in

transporting a prisoner to the Court.

In Chapter 210 of the Laws of Maryland, 1971, the

General Assembly took a giant step toward putting its

houses of correction in order. Chapter 210 establishes

an Inmate Grievance Commission as an arm of the

Department of Public Safety and Correctional Services.

Although the detailed workings of the Commission and

its procedures will be explored at great length infra, the

purpose of the establishment of the Commission is to

afford Maryland prisoners an administrative forum

which, after hearing the merits of prisoner complaints

and grievances, is empowered to work within the

bureaucracy of the correctional system to remedy

affronts to the rights which prisoners are constitution-

ally entitled to enjoy during the period of their

confinement. The creatior and implementation of this

Commission constitutes the creation of a state adminis-

trative remedy to the jurisdiction of which this Court

should defer consideration of prisoner petitions brought

in this Court under the provisions of 42 U.S.C. § 1983

and its companion statutes. The pertinent authority

interpreting § 1983, when itself interpreted in light of a

practical and reasonable judicial approach, does not

prevent such a conclusion.

No one intimate with the workings of the United

States District Court for the District of Maryland need

be reminded of the toll which the meteoric rise in the

number of prisoner petitions filed in recent years has

taken upon the already heavily taxed resources of this

Court. Both the Clerk’s Office and the chambers of the

Judges of this Court are laboring under the weight of a

mound of which never seems to decrease, no ma:ter how

rapidly the pending cases are adjudicated.

A look at the Annual Report of the Director of the

Administrative Office of the United States Courts for

the fiscal year ending June 30, 1972 and the Semi-

annual Report of the Director for the first half of fiscal

1973, ‘end statistical evidence to our :onviction that

there ‘s little hope of relief from the swelling ranks of

petitioning prisoners. At the appellate level, nearly 31%

of the prisoner appeals filed nationwide were filed in

the United States Court of Appeals for the Fourth

Circuit in fiscal 1972. This percentage rose to 36.1%

during the first half of 1973. More importantly, prisoner

cases accounted for 38% of all cases filed with the

Fourth Circuit in 1972, and for 45.3% for the first part of

1973.

Of greater moment for our purposes is the number of

civil rights petitions filed by prisoners in the United

States District Courts. In fiscal 1972, 252 civil rights

petitions were filed by federal prisoners (an increase of

1,580% over 1961, and an increase of 17.8% over 1971),

and 3,348 were filed by state prisoners (an increase of

1,435.8% over 1961, and an increase of 14.9% over 1971).

During the first half of fiscal 1973, 155 civil rights

actions were instituted by federal prisoners, and 1,891

were filed by state prisoners.

Although it cannot be denied that direct federal

judicial intervention has, in recent years, served to

remedy the worst examples of retrogressive American

penology (as in the infamous Tucker Farm of Arkansas,

see Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)), the

time has come to take a careful and critical look at the

continued validity of the sweeping interpretation which

has caused § 1983 to be read as a mandate to federal

courts and forces them to accept all but the most

patently ridiculous complaints from state prisoners, no

matter how hard or how successfully the state has tried

to set its own prison house in order.

An example of how the breadth of the interpretation

of § 1983 has led to excessive federal judicial concern

over state prisoners is presented by the litigation filed

by the plaintiff in this case, Milton McCray. Since

January, 1970, Mr. McCray has filed thirty-six suits

with this Court, and, as Appendix A indicates, the

number of prisoner petitions he files are increasing with

the passage of time. The plaintiffs desire to litigate

even the most outrageous complaint is illustrated by

Milton McCray v. Warden, Maryland Penitentiary,

Civil No. 72-69-N. In this case, which the plaintiff

voluntarily dismissed at the commencement of this

trial, he alleged that Officer Burrell, and other officers

of the penitentiary unknown to the plaintiff, entered the

plaintiffs cell on December 16, 1971, and broke open his

locker. They then took from the locker twenty-three (23)

pornographic books, two hundred and seventy-five

dollars ($275), and ninety-five (95) packs of cigarettes,

and a substantial number of other personal items.

In his complaint, which is attached to this opinion as

Appendix B, plaintiff stated that he and Officer Burrell

were engaged in what could best be described as a

‘“Rent-a-Dirty-Book” enterprise. Apparently McCray

was receiving between fifteen and twenty dollars a

week renting these books to the other inmates. He

would rent the “literature” to an inmate for two to five

packs of cigarettes a night. He would then sell the

cigarettes to other inmates at the discount price of four

packs for a dollar.

This operation falls into the classification of the

enterprises alluded to by Russell Kirk in his column

which appeared in The Sun on Wednesday, June 27,

1973. In that article entitled “Jailhouse Lawyers: Latest

Racket Behind Bars,” Mr. Kirk discussed the revela-

tions of a new book by Fred T. Wilkinson and Fred

DeArmond, “The Realities of Crime and Punishment: A

Prison Administrator’s Testament.” It was pointed out

that prison racketeers “. . . use power to mistreat their

fellows or to extort money from them.” Obviously, this

is what McCray was doing in this instance.

While this complaint was eventually dismissed, it

was not until a substantial amount of time had been

expended by his attorneys, the Maryland Attorney

General’s Office and this Court. After this case had

been consolidated with three other suits filed by the

plaintiff, Michael Millemann, then counsel for the

plaintiff, and the Assistant Attorney General represent-

ing the Warden, filed a Stipulation For Dismissal of

this action, dated June 20, 1972. However, in a letter

received by the Court from the plaintiff he asserted his

desire that this action not be dismissed. As a result the

case remained open, and preparations for trial contin-

ued. At the trial the plaintiff, through his counsel,

Charles F. Morgan, requested that the Court grant him

leave to dismiss this suit without prejudice. He stated

that he had decided to pursue his available administra-

tive remedy through the Maryland Inmate Grievance

Commission, but if he was dissatisfied with the final

disposition of the case, that he intended to refile the

complaint in this Court.

A potential abuse of the right to bring action in

federal court under § 1983 has thus been realized, with

two adverse results. First, the caseload of all the judges

has increased tremendously, causing a rising backlog of

cases. Secondly, and more importantly, the length of

time that elapses from the date a prisoner files a

meritorious claim asserting an infringement of his

constitutionally protected rights to the date of disposi-

tion, has become so great that often neither equitable

nor legal relief are effective in protecting his rights.

This latter consequence is due in part to the ever-

increasing caseload of the courts, and to some extent is

a normal reaction to prisoners who have “cried wolf”

many times too often. These factors cause the great

concern, and a brief analysis of the magnitude of the

problem is warranted.

Recently, this Court held an evidentiary hearing in

Mitchell v. Boslow, Civil No. 70-675-N (D.C. Md. 1973),

which involved a claim that Patuxent Institution

violated the plaintiffs constitutional rights when it

failed to protect him from an assault by another

inmate. In order to insure that Mr. Mitchell was able to

adequately present his case, it was necessary for this

Court to request that a local attorney donate his time

and represent the plaintiff. After plaintiff's counsel had

prepared the case it was necessary to hold a conference

with him, the Assistant Attorneys General handling

the case for the State of Maryland, and the United

Stutes Marshal, to set up security precautions for the

hearing. This was necessitated by the desire of the

plaintiff to call as witnesses at the hearing seven

inmates in the Maryland Correctional System who were

incarcerated in three different institutions.

The Mitchell hearing lasted three days, March 12—

March 14, 1973, with the Court finding that the

plaintiff's claim was lacking in merit. During the course

of the hearing it was shown that three of the five

inmates who actually testified were not even confined

with the plaintiff at the time of the assault. In addition,

the Court noted that the attitude of one of the witnesses

was: “. . . belligerent, his demeanor disrespectful. His

recitation amounted to a verbal attack upon the

Institution as a whole.” Mitchell v. Boslow, Civil Action

No. 70-675 (D.C. Md., filed March 30, 1973).

It is clear from these events that when the federal

courts act as the initial forum for any prisoner who

alleges a deprivation of his constitutional rights, an

allegation often totally without merit, a tremendous

amount of court time is required to dispose of the action.

If the length of time required for each evidentiary

hearing is presumed to be the same as in the Mitchell

case, and many could quite possibly be much longer

when plaintiff is not represented by counsel, it would

require forty-two days of trial to dispose of the fourteen

§ 1983 suits that Milton McCray instituted in this Court

in the calendar year 1972. If one does not take into

account the time required for pretrial motions and

conferences, and the time needed to write and issue an

opinion, this one prisoner has occupied a judge’s time

for 20-25% of the fiscal year. One must be cognizant of

the fact that a prisoner civil rights action rarely is

disposed of by settlement or voluntary dismissal.

In addition, since the court cannot travel to the prison

itself to conduct the trials, added expense is incurred

transporting the plaintiff, his witnesses and the prison

personnel to the courthouse. Once this financial hurdle

has been cleared, security dangers created by a large

number of prisoners confined in the courthouse at one

time must be confronted.

This Court is not implying that all prisoner civil

rights suits are without merit, or that penal institutions

in this or any other, state are without sin. But it is

suggesting that these suits will continue to consume

more and more of the federal courts’ time, with the

result that it will take longer and longer to provide

relief for those prisoners who are actually being

deprived of their rights. Thus, it is imperative that the

scope of § 1983 be examined, and that the viability of

alternative state remedies be evaluated to determine if

they can provide a speedier redress of prisoner griev-

ances while providing them the protection of due

process of the laws.

The statute which is the cornerstone of virtually all

prisoner petitions filed in the District Courts was

enacted as §1 of the Civil Rights Act of 1871, 17 Stat.

13. It is now codified as § 1983 of Title 42 of the United

States Code and provides:

Every person who, under the color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

For a considerable time after its passage, this statute

received the narrowest of constructions. See, e. g.,

Hemsley v. Myers, 45 F. 283 (C.C.D. Kan. 1891).

However, with the growing march of incorporation of

Bill of Rights guarantees into the fourteenth amend-

ment and the concomitant growth in litigative vindica-

tion of civil rights, especially where state-created or

state-sanctioned racial discrimination was at issue, it

was inevitable that the language of §1983 would

eventually receive a broad interpretation. Thus, in

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d

492 (1961), the Court opened the door to a flood of civil

rights litigation by holding that, in essence, § 1983

extended to a plaintiff deprived of his constitutional

rights by anyone acting, albeit unlawfully, under color

of state law, a federal right to relief fully supplementary

to any right of relief available for the same unlawful

deprivation in state courts. Said Mr. Justice Douglas for

the majority:

It is no answer that the State has a law which if

enforced would give relief. The federal remedy is

supplementary to the state remedy, and the latter

need not be first sought and refused before the

federal one is invoked. [/d. at 183, 81 S. Ct. at 482].

Perhaps the fact that the plaintiff in Monroe set forth

allegations of the most outrageous police conduct

imaginable upon him and his family solely because of

his membership in the Negro race, spurred the Court on

to its statement that § 1983 was ‘atended to afford a

remedy fully supplementary to any existing (and

presumably adequate) remedy of which plaintiff could

avail himself in state court. It is pointed out in an

extremely well-reasoned Note entitled “Limiting the

Section 1983 Action in the Wake of Monroe v. Pape” at

82 Harv. L. Rev. 1486 (1969) that the fact situation in

Monroe, outrageous to the civilized man as it may be,

fell within none of the three “main aims” of § 1983

articulated by Mr. Justice Douglas, these being; (1)

overriding certain kinds of state laws; (2) providing a

remedy when state law is inadequate; and (3) providing

a remedy when the state law is adequate in theory but

not in practice. Id. at 1489.

In the wake of Monroe there followed two cases

involving racial discrimination. In McNeese v. Board of

Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622

(1963), the Court determined that a federal action could

be maintained under §1983 despite the plaintiffs’ failure

to pursue available state remedy that provided both

court and administrative action. The refusal to require

the plaintiffs to exhaust the state court remedy was

merely a reassertion of Monroe, but the administrative

aspect of the state remedy was not required because of

its inadequacy under the circumstances. Significantly,

the Court pcinted out that the pertinent administrative

official “has no power to order corrective action.” Id. at

675, 83 S. Ct. at 1437. The only method of enforcement

at his disposal was through the state courts. Four years

later, in Damico v. California, 389 U.S. 416, 88 S. Ct.

526, 19 L. Ed. 2d 647 (1967), in a brief per curiam

opinion, the Court refused to deny the plaintiffs their

right to bring actioi in federal court because they failed

to exhaust a state administrative remedy. In basing its

opinion on both Monroe and McNeese, the Court said of

the latter, ‘“‘we held that ‘relief under the Civil Rights

Act may not be defeated because relief was not first

sought under state law which provided [an administra-

tive] remedy,’ id., 373 U.S. at 671, 83 S. Ct. at 1435.”

(brackets original). The page reference cited a portion of

the decision in which the Court rejected the requirement

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of exhausting state court remedies. As Judge Newman

pointed out in Kochie v. Norton, 343 F. Supp. 956 (D.

Conn. 1972):

Even if the interpolation of the word “administra-

tive” was warranted, it could at most refer to the

tvpe of administrative remedy rejected in the latter

portion of the McNeese opinion — namely, a

remedy which is either beyond the power of the

administrator or which cannot provide adequate

protection to the right allegedly impaired. [/d. at

959],

The Court then took the word “administrative” out of

brackets in Houghton v. Shafer, 392 U.S. 639, 88 S. Ct.

2119, 20 L. Ed. 2d 1319 (1968). In a brief and

unenlightening per curiam opinion the Court held that

exhaustion of only administrative remedies would not

be required of a § 1983 prisoner-plaintiff where the state

Attorney General, the officer to whom ultimate admin-

istrative appeal was to be taken, had already indicated

his prejudgment of the case, thereby making resort to

the administrative remedy an exercise in futility. But

the per curiam opinion then added that in any event

under the authority of Monroe v. Pape, resort to these

remedies is unnecessary. Jd. at 640, 88 S. Ct. 2119. Then

in Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407,

30 L. Ed. 2d 418 (1971), the Court stated:

.. . State prisoners are not held to any stricter

standard of exhaustion than other civil rights

plaintiffs. Houghton v. Shafer, [cite omitted]. There

an inmate’s challenge to the confiscation of his

legal materials without first seeking administra-

tive redress was sustained. Although the probable

futility of such administrative appeals was noted,

we held that in “any event, resort to these remedies

is unnecessary.” [citations omitted]. Jd. at 251-252,

92 S. Ct. at 409.

This summary treatment of the difficult question of

administrative exhaustion by the Court in § 1983 suits

lla

led to the writing of eight separate opinions by the

United States Court of Appeals for the Second Circuit

in Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972).

This case involved a prisoner suit under § 1983 against

the prison officials for loss of good behavior time credit.

Under the laws of New York a prisoner serving an

indeterminate sentence may elect to participate in a

conditional release program by which he can earn up to

10 days per month good behavior time credit toward the

reduction of his maximum sentence. Under the pro-

gram, accrued good behavior credits can be withdrawn

at any time, in whole or in part, for bad behavior or

violation of institutional rules. Rodriguez had elected to

participate in this program but he was charged with

possession of contraband material in his cell. As a

result, Rodriguez had a substantial amount of credit

cancelled, and in addition, he was placed in segrega-

tion. He filed suit in the district court pursuant to

§ 1983, combined with a writ of habeas corpus. The

district court ruled that § 1983 was a proper basis for

this suit, and that the habeas corpus claim was merely

an adjunct to insure full relief if the plaintiff prevailed

in the dominant civi! rights suit. On appeal the Court of

Appeals reversed, stating that this was really a petition

for habeas corpus, and as such, the petitioner was

required to exhaust available state remedies. On

rehearing en banc the Court affirmed the district court

on the basis of Wilwording v. Swenson, 404 U.S. 249, 92

S. Ct. 407, 30 L. Ed. 2d 418 (1971). Finally, the Supreme

Court ruled that the suit was challenging the validity of

fact or length of confinement, and that as such habeas

corpus was the appropriate remedy. The Court stated

that “a §1983 action is a proper remedy for a state

prisoner who is making a constitutional challenge to

the conditions of his prison life, but not to the fact or

length of his custody.” Preiser v. Rodriguez, 411 U.S.

475, 93 S. Ct. 1827 at 1841, 36 L. Ed. 2d 439 (1973). While

affirming its decisions in Wilwording and Houghton

the Court again failed to discuss the question of

exhaustion of available administrative state remedies

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under § 1983. However, the Court did discuss the basis

for applying the rule of exhaustion in federal habeas

corpus actions. The Court, in discussing the rule as

rooted in federal-state comity said:

It is difficult to imagine an activity in which a

State has a stronger interest, or one that is more

intricately bound up with state laws, regulations,

and procedures, than the administration of its

prisons. The relationship of state prisoners and the

state officers who supervise their confinement is

far more intimate than that of a State and a

private citizen. For state prisoners, eating, sleep-

ing, dressing, washing, working, and playing are

all done under the watchful eye of the State, and so

the possibilities for litigation under the Fourteenth

Amendment are boundless. What for a private

citizen would be a dispute with his landlord, with

his employer, with his tailor, with his neighbor, or

with his banker becomes, for the prisoner, a dispute

with the State. Since these internal problems of

state prisons involve issues so peculiarly within

state authority and expertise, the States have an

important interest in not being bypassed in the

correction of those problems. Moreover, because

most potential litigation involving state prisoners

arises on a day-to-day basis, it is most efficiently

and properly handled by the state administrative

bodies and state courts, which are, for the most

part, familiar with the grievances of state prisoners

and in a better physical and practical position to

deal with those grievances. In New York, for

example, state judges sit on a regular basis at all

but one of the State’s correctional facilities, and

thus inmates may present their grievances to a

court at the place of their confinement, where the

relevant records are available and where potential

witnesses are located. The strong considerations of

comity that require giving a state court system that

has convicted a defendant the first opportunity to

correct its own errors thus also require giving the

States the first opportunity to correct the errors

made in the internal administration of their

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prisons. [411 U.S. 475, 93 S. Ct. at 1837-1838.

(footnotes omitted)].

However, the Court enphasized that even when exhaus-

tion is required, it is contingent on the adequacy and

availability of the prisoner’s state remedy.

There is a need to reconsider the applicability of the

exhaustion rule with respect to § 1983 actions when

there is an available and adequate state administrative

remedy. This is evident when one reads the eight

separate opinions issued by the en banc panel of the

Second Circuit in the Rodriguez case which reflect a

vast disagreement in interpreting the line of cases from

Monroe to Wilwording. In addition to resolving a

conflict in interpretation, a reconsideration is necessary

to eliminate the contradiction created by the Supreme

Court in its analysis of the exhaustion rule in the

context of habeas corpus in Preiser v. Rodriguez, supra.

In that case, the Court justified the application of the

exhaustion rule in habeas corpus by invoking the

concept of federal-state comity, while ignoring that it

should be no less a consideration in prisoner § 1983

actions. To resolve these problems one must examine

the “[v]Jarying views as to the breath of the Wilwording

holding, the strength of prior precedents, the proper

character of the federal balance, and the potential

impact upon judicial administration.’ It is therefore

imperative that this Court consider the validity of these

factors and determine under what circumstances, if

any, a requirement of exhaustion under § 1983 would be

permissible.

A. Varying Views As To The Breadth Of The

Wilwording Decision

In its brief per curiam opinion, the Court in Wilword-

ing summarily treated the question of administrative

* See, “RECENT DEVELOPMENTS, State Inmate’s

Challenge To Conditions of Prison Confinement Is Cogniz-

able Under 42 U.S.C. § 1983 And Entails No Requirement Of

Exhaustion State Kemedies.” 72 Col. L. Kev. 1078, 1086

(1972).

l4a

exhaustion without even mentioning whether or not

such a remedy was available to the plaintiff. While it

would appear that Wilwording, in light of Damico and

Houghton. suggests that resort to state administrative

remedies need never be exhausted before litigating

$1983 suits in federal district court, its holding is far

more limited. See Kochie v. Norton, 343 F. Supp. 956,

959 (D. Conn. 1972). The main holding in this case is

that exhaustion is not required when the state remedy

is a judicial one, or is an administrative one which

cannot provide adequate protection to the right alleg-

edly impaired. Nowhere does the Court discuss the

question of requiring a civil rights plaintiff to exhaust

viable state administrative remedies before litigating

his claim in a federal court.

{1| This has provoked a variety of views as to the

interpretation to be given to Wilwording. In Rodriguez,

the majority of the Second Circuit interpreted the

decision as a mandate prohibiting the requirements of

exhaustion, whether judicial or administrative. The

three dissenting judges in that case viewed it as merely

suggesting that no exhaustion be required, but that it

did not mandate that result in a particular case. Judge

Newman in Kochie v. Norton, 343 F. Supp. 956 (D.

Conn. 1972), contended that Wilwording and its

predecessors held that state judicial remedies need not

be exhausted, and administrative exhaustion was nota

prerequisite to federal action when the remedy was

inadequate under the circumstances.

This Court is of the opinion that Judge Newman's

reasoning, when viewed in light of the consequences of

a “no exhaustion” rule, is compelling.

B. The Strengths Of Prior Precedents

This factor has already been discussed at great

length in this opinion, and at this juncture it is only

necessary to reiterate that at no time has the Supreme

Court explicitly discussed the question of administra-

tive exhaustion under § 1983.

ld5a

C. The Proper Character Of The Federal Balance

In his opinion in Bundy v. Cannon, 328 F. Supp. 165,

171 (D. Md. 1971), Judge Thomsen of this bench quoted

1. the case of McCloskey v. State, 337 F.2d 72, 74 (4th

ir. 1964):

... In the great mass of instances, however, the

necessity for effective disciplinary controls is so

impelling that judicial review of them is highly

impractical and wholly unwarranted. The remedy

of the inmate is through administrative review,

which ‘as to be available always. [328 F. Supp.

at 171}.

This belief that the federal courts should not intervene

in the functioning of state prisons except in the rarest

occasions is founded on the assumption that there does

exist an adequate remedy through administrative

review. This is clearly shown when Judge Thomsen

went on to say:

This court notes that by the Act of 1971, ch. 210,

approved April 29, 1971, effective July 1, 1971,

Maryland has provided what appears to be an

excellent system of administrative review of

inmate grievances, through an Inmate Grievance

Commission, with an ultimate right of review by

the State Courts. [328 F. Supp. at 171].

What appeared to be an effective administrative

procedure to Judge Thomsen in 1971, has been judged

to be just that. In State of Maryland v. McCray, 267 Md.

111, 144, 297 A.2d 265 (1972), the Court of Appeals of

Maryland stated:

We think that the Inmate Grievance Commission

Act and the implementing rules adopted by the

Commission provide “a simple and workable

procedure by which every person in confinement

who has, or thinks he has, a grievance or

complaint can be heard promptly, fairly, and

fully,” and obtain a judicial review with respect to

l6a

his constitutional and statutory rights. [267 Md. at

144, 297 A.2d at 282. (Emphasis added)].

It should be pointed out that to require state prisoners

to exhaust such an administrative remedy does not hold

them to a stricter standard of exhaustion than other

civil rights petitioners, as Wilwording seems to suggest.

In McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), the

court held that members of the United States Army

stationed at Fort Eustis, Virginia were required to

exhaust administrative remedies provided by the

military service as a prerequisite to relief in the civil

courts for violation of their constitutional rights. Citing,

United States ex rel. Taylor v. Fritz, 446 F.2d 36, 37 (8th

Cir. 1971); Gonzales Salcedo v. Lauer, 430 F.2d 1282,

1283 (9th Cir. 1970); Karpinski v. Resor, 419 F.2d 531,

532 (3rd Cir. 1969); United States ex rel. Berry v.

Commanding General, 411 F.2d 822, 824 (5th Cir. 1969);

Sohm v. Fowler, 124 U.S. App. D.C. 382, 365 F.2d 915,

917 (1966).

In United Automobile, Aerospace, and Agricultural

Implement Workers of America (UAW) v. State Farm

Mutual Automobile Insurance Company et al., 350 F. ,

Supp. 522 (N.D. Ill. 1972). a civil rights action was filed

by a union and black and white motorists against the

insurance rating board, insurance companies and

insurance advisory organizations on the ground that, in

establishing zones for new automobile insurance

premium rates, defendants separated the bulk of the

Negro population of the city in one zone and imposed

substantially higher rates in that zone. The court held

that the civil rights actions could not be maintained

until the plaintiffs had exhausted their available state

adminis.rative remedies, which the court found to be an

effective administrative remedy. While the U.A.A. &

A.W. of America case involved a suit filed under § 1983,

McGaw did not. However, the need to provide a plaintiff

with protection against violations of his constitutional

rights is no less great when the defendant is the United

States Army. Thus, if a defendant is required to exhaust

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administrative remedies for an alleged violation of his

rights by an agency of the federal government when the

only available judicial forum is the federal court

system, it would seem inconsistent not to require such

eee when the deprivation is under color of state

aw.

The Court also notes that plaintiffs charging employ-

ment discrimination under Title 7 and the Age

Discrimination Act are required to exhaust administra-

tive remedies provided by statute. While it can be

argued that exhaustion is required in these cases

because Congress specifically provided for it, the

rationale supporting such a requirement under § 1983 is

no less compelling. The Court notes that while exhaus-

tion in habeas corpus actions is also provided by

statute, the Supreme Court had required exhaustion

prior to Congress enacting this amendment in 1948. See

Ex parte Royall, 117 U.S. 241, 6S. Ct. 734, 29 L. Ed. 868

(1886); Urquhart v. Brown, 205 U.S. 179, 27 S. Ct. 459,

51 L. Ed. 760 (1907); Ex parte Hawk, 321 U.S. 114, 64S.

Ct. 448, 88 L. Ed. 572 (1944).

D. The Potential Impact Upon Judicial

Administration

This Court has already noted the statistics released in

the Annual Report of the Director of the Administrative

Office of the United States Courts, and the deluge of

litigation instituted in this Court by the plaintiff,

Milton McCray. When one evaluates the astronomical

rise in prisoner civil rights litigation since 1961, and

views the abuse of this right of access to the courts, it

becomes apparent that not only will there be a

detrimental impact upon the judicial system and its

administration, but the legitimate complaints of those

prisoners whose constitutional rights are in fact being

violated may not be litigated for years.

However, if there is available a viable administrative

remedy, then the spurious claims will be weeded out,

and the district courts will be called upon to hear only

those cases that are clearly of constitutional dimension.

lSa

In addition, the federal district courts will have the

benefit of a complete record of the administrative

proceedings before the Inmate Grievance Commission,

and the appeals to the state courts. Finally, when an

infringement of a _ prisoner’s rights is found, but

equitable relief can be more effectively enforced by the

State, this Court will be able to remand the case to the

State. Under this procedure a much better record will be

available to the court, the constitutional issues pre-

sented by the complaint will be definitely articulated,

and the Court will not be bound to act as an advocate

for the plaintiff to determine what constitutional

grievances he might have.

{2} The test that is to be used to determine the

propriety of requiring administrative exhaustion in a

particular case was stated in Armsden v. Cataldo, 315

F. Supp. 129 (D. Mass. 1970). In that case Judge Caffrey

said:

Relevant to a resolution of whether or not

exhaustion is required are considerations of the

adequacy of the available state remedy, of whether

or not it is really a remedy in fact as distinguished

from being a remedy in theory, and of the extent of

the state’s interest in the subject matter of the

litigation. [315 F. Supp. at 131}. }

Thus, the test of determining the adequacy of the

available administrative state remedy is three-fold.

First, the court must analyze the theoretical due process

adequacy of the state remedy, particularly from the

standpoint of making sure the remedy does not contain

the forbidden indicia of pre-judgment which renders

exhaustion inappropriate. Second, the court must look

at the remedy in practice, to see that it is being

administered in an even-handed and fair manner.

Finally, the third relevant consideration is one that all

federal courts must bear in mind when they are called

upon to interject themselves into matters entrusted by

our form of Government to the realm of the States, and

that is, of course, the extent of the State’s interest in the

subject matter of the federal litigation.

1Y¥a

Our first inquiry mest be answered by looking at the

statute which created the Inmate Grievance Commis-

sion in order to determine whether the remedy therein

provided is adequare in theory to redress the legitimate

grievances of the inmates. The Commission is made up

of five members, two of whom are lawyers, two of whom

are “persons of knowledge and experience in one or

more of the fields under the jurisdiction of the

Department of Public Safety and Correctional Serv-

ices,” and one of whom is a member from the public-at-

large. The current members of the Commission are:

James G. Boss, Chairman — Attorney-at-law;

James V. Bennett — Attorney-at-law, and a

nationally known penologist and retired Director

of the Federal Bureau of Prisions;

Maceo M. Williams — A former Patuxent Institu-

tion guard and city probation officer who is now an

official of Baltimore’s Concentrated Employment

Program, an anti-poverty program;

Edgar A. Fulton — A retired insurance man who is

now an industrial relations consultant to the U. S.

Bureau of Prisons, and a member of the Maryland

Advisory Board for Corrections, Parole and Proba-

tion; and

Ralph S. Falconer — Retired from Maryland

Department of Parole & Probation.*

It is evident that the Governor has made every effort to

appoint to the Commission individuals with knowledge

in relevant areas and who are equipped with the

perspicacity to make objective judgments, free from any

institutional preconceptions of the facts of a particular

in-prison incident.

The mechanics of the grievance procedure are set

forth in detail in the statute. 41 Md. Code Ann. § 204F

’ At the time of the hearing in these cases, June 11 through

June 14, 1973, Jeffrey Levitt, an attorney-at-law, was a

member of the Commission. He has since resigned, and Mr.

Falconer is newly-appointed to fill the vacancy.

20a

(d)-(l) (Supp. 1971). Suffice it to say here that the

procedures assure a detached and unbiased resolution

of particular cases, culminating in judicial review of the

administrative adjudications.

Any person confined in a state prison, or any patient

of Patuxent Institution, who “has any grievance or

complaint against any officials or employees of the

Division of Correction or the Patuxent Institution’

may submit the grievance or complaint to the Commis-

sion. The Commission is given original administrative

jurisdiction unless the particular facility in which the

complaining inmate is confined has an_ internal

grievance procedure approved by the Commission, in

which case the inmate must first exhaust the institu-

tional procedure before filing with the Commission.

According to the testimony of the present Executive

Director of the Commission, Dene L. Lusby, a grievance

is first screened by the Executive Director. While the

complaint may be dismissed if it “is determined to be on

its face wholly lacking in merit,” this statutory

authorization is not used. Mr. Lusby testified that the

Commission did not want to deny an inmate the

opportunity for a hearing. However, complaints are

dismissed without a hearing when the initial screening

process reveals that the Commission lacks jurisdiction,

as Where an inmate erroneously files for habeas corpus

relief with the Commission. In practice, then, the

Commission’s jurisdiction mirrors the traditional areas

of $1983 jurisdiction in prisoner cases.

When questioned about the initial filings with the

Commission, Mr. Lusby stated that as of May 31, 1973,

923 complaints had been received, of which 98 cases

(10) remained opened to be investigated and/or heard

if the same were not dismissed, withdrawn or infor-

mally resolved. Under the present Commission proce-

dures, an inmate may request to withdraw his com-

* Virtually all § 1983 complaints are premised upon some

abuse of authority possessed under color of state law; such

was the jurisdictional meaning read into § 1983 in Monroe v.

Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).

2la

plaint, -nd he will usually be allowed to do so

immedistely. However, in a few instances, when the

nature of the complaint warrants, he is required to

withdraw in front of the Commission. Mr. Lusby

further stated that he attempts to informally resolve

prisoner complaints by contacting the involved institu-

tion and requesting that it voluntarily abate the

condition upon which the inmate based his grievance.

In these instances any resolution would be favorable to

the complaining inmate.

The Executive Director’s testimony concerning a

number of Commission statistics may be summarized

as follows:

1. Complaints received from 7/1/71 to 5/31/73 923

2. Administrative dismissal (complaints that are

on their face without merit, complaints that are

withdrawn by the inmate, complaints over which

the Commission lacks jurisdiction and complaints

that are informally resolved) 507

3. Hearings held from November 1971 to May 31, 318

1973

4. Disposition

a. Some or all relief granted 103

b. No relief granted 153

c. Moot, because prisoner released or escaped 10

d. Pending disposition 50

5. Open complaints as of May 31, 1973 98

6. Scheduled fce« hearing 58

7. Not scheduled for hearing 40

If the complaint is not dismissed, withdrawn or

informally resolved, the Commission is directed to hold a

hearing on the grievance as promptly as practicable.

The Commission meets twice a week, generally on

Wednesdays and Fridays, to hear the grievance of any

inmate confined to an institution within the Division of

Correction, at the institution where the inmate is

housed. At least three Commissioners must sit for each

hearing, and decisions are made by a majority of those

sitting. A Voice-writer record is made of all hearings,

22a

and is transcribed when the inmate seeks judicial

review. This procedure was adopted on December 1,

1972. The Commission’s decision is issued in the form

of an order, setting forth findings of fact, the Commis-

sion’s conclusions, and the disposition of the complaint.

The disposition may take either of two forms. If the

complaint is found after a hearing to be “wholly

lacking in merit” it may be dismissed, and such

dismissal shall constitute the final order of the

Commission for purposes of judicial review. On the

other hand, if the complaint is found to be meritorious,

in whole or in part, the Commission will so notify the

Secretary of Public Safety and Correctional Services.

The Secretary may then take either of two actions. He

may reverse or modify the order, if he disagrees with

the Commission. If he agrees with the Commission’s

order, as received or as modi ‘ied, the Secretary shall

order the appropriate official of the institution against

whom the grievance was filed to accept the Commis-

sion’s recommendations. Further, the Secretary is

empowered by the statute to “take whatever action he

deems appropriate in light of the Commission’s find-

ings.” It is intended that the Secretary will use this

grant of power to discipline or otherwise correct officers

under his command who have been found guilty by the

Commission of engaging in conduct giving rise to a

legitimate complaint by the inmate affected. The

Secretary’s order carrying out the recommendations of

the Commission shall constitute a final order for the

purpose of judicial review.

The Act gives the Commission the power to require by

subpoena the production of any documents by the

person or institution under investigation. Further, the

Commission may, by subpoena, require the attendance

of any person as a witness and the production by that

person of any relevant documentary evidence. On cross-

examination, Mr. Boss, the Chairman of the Commis-

’ It was asserted at the hearing that on two occasions the

Secretary reversed the Commission’s recommendation. These

reversals were appealed, and in both cases the Commission’s

recommendation was reinstated.

244

sion. testified that no witness has ever refused to

appear before the Commission and that there had never

been, to the best of his knowledge, any requests for a

subpoena. While, the testimony of Robert Coulter, the

first Executive Director of the Commission, contra-

dicted this assertion of Mr. Boss, and in general tried to

discredit the Commission, several factors mitigated the

effect of his testimony. First, the period that he was

serving the Commission as its Executive Director can

best be described as the Commission's formative period.

It was involved in implementing ‘tlhe directives of the

enabling statute, and it is understandable that prob-

lems would exist at this time. Secondly, while his

testimony conflicted frequently with that of Mr. Lusby

and Mr. Boss, it is significant that neither Mr. Boss nor

Mr. Lusby were associated with the Commission at the

same time as Mr. Coulter. Therefore it is understand-

able that Coulter's experience with the Commission's

procedures might be entirely different from that of the

present Chairman and Executive Director.

The Act also spells out the procedural requirements of

the Commission's hearings In addition to the fact that

the hearings of the Commission are to be recorded and

transcribed as required, the Act makes several specific

provisions to insure that the tests of procedural due

process are met by the Commission’s hearings. The

inmate-complainant has the right to appear in person

before the Commission, and, unlike a trip to court for

the inmate, this appearance will not impose any special

security problems insofar as the Commission is empow-

ered to hold its hearings at any correctional facility,

including the Patuxent Institution. The inmate-

complainant is given the right to call witnesses in

support of his position, subject to the discretion of the

Commission as to the number of witnesses called and

the relevance of their testimony. Only witnesses whose

testimony would be merely cumulative are excluded.

This Cetermination is based on the complaining

inmates’ assertions as to the subject matter of their

testimony. It is further provided that the inmate-

complainant is to be given a reasonable opportunity to

Yda

question (cross-examine) any witnesses who testify

before the Commission. These rights of the inmate to

the attendance, examination and cross-examination of

witnesses “shall not be unreasonably withheld or

restricted by the Commission.”

The witnesses are not sworn because the Commission

has decided that inmates appear to be more relaxed

testifying when they are not concerned, or threatened,

with the consequences of perjurious testimony. Finally,

the inmate is allowed to be represented by an attorney

of his own choosing at his own expense, by a law

student, or by another inmate. Mr. Lusby testified that

an inmate has counsel about 5-10% of the time, and that

they are represented either by counsel or a law student

approximately 30% of the time. Of course, there is no

need for the appointment of counsel, at the expense of

the State, for the purpose of representing the inmate, as

the hearing is solely remedial, not disciplinary or

punitive, in nature.

Upon the entry of a final order in his case, the

inmate-complainant may initiate judicial review of the

orders of the Commission and the Secretary in the

circuit court of the county or city in which he is

incarcerated. The judicial review is a review on the

record and is limited to a determination of whether

there was a violation of any right of the inmate

protected by federal or state laws or constitutional

requirements. Although Ch. 210 is silent on the point, it

appears from a reading of the Maryland Rules of

Procedure and the Administrative Procedure Act (see

Md. Code Ann., art. 41, § 256) that an appeal can be

taken from the action of the reviewing circuit court to

the Court of Appeals of Maryland.

[3] It appears to this Court that there is a viable

alternative to direct federal judicial intervention in the

State correctional process via § 1983. When the enlight-

ened procedures prescribed as a result of Bundy v.

Cannon, supra, for the imposition of in-prison punish-

ment are combined with the more than adequate

remedial route furnished by the Inmate Grievance

Procedure Act, there emerges a picture of a state

correctional system which is truly cybernetic. Indeed,

the state judicial system has become increasingly

involved in remedying the complaints of Maryland

inmates, as witness the unprecedented action of the

two-judge Circuit Court which conducted an extensive

inquiry into the conditions at the Patuxent Institution,

McCray v. State, Misc. Pet. 4363 (Cir. Ct. Mont. Co..,

November 11, 1971), reversed in part, State v. McCray,

267 Md 111, 297 A.2d 265 (1972). In that case the Court

of Appeals of Maryland noted:

We take judicial notice that the Commission is now

fully operative. It began operation upon the

appointment of an Executive Director on 30

November 1971. Rules and Regulations implemen-

ting Code. Art. 41, §204F were adopted. Public

Safety and Correctional Services, 12.07.00.00.-12.-

07.00.05. The first hearing session was held on 17

December 1971 and hearings have been held

continually since that time. Almost 600 complaints

have been received from inmates and about 100

orders issued. The complaints and the disposition

of them are open to public inspection pursuant to

Code, Art. 41, § 204F(i). [267 Md. at 144 n. 27, 297

A.2d at 283).

Further evidence of the Inmate Grievance Commis-

sion’s viability was reported in The Sun on December 8,

1972. The Sun reported: “An order banning the use of

an extremely painful restraining device known as the

‘iron claw’ in Maryland prisons has been announced by

the State Inmate Grievance Commission.” This order

was the result of a complaint filed by two prisoners et

the Marvland Correctional Institution in Hagerstown

that the iron claw was used on them in violation of the

eighth amendment of the Constitution.

The State’s interest in the subject matter of the

prisoner complaints under § 1983 is paramount. The

extent of this interest was clearly defined by the

Supreme Court, Preiser v. Rodriguez, supra, in the

passage already cited in this opinion. Thus ts presented

the picture of a complete, self-contained and _ self-

executing administiutive process set up by the State to

resolve prisoner complaints justly and expeditiously.

‘‘learly, the federal courts have neither the time nor

resource, nor experience enough, to justify their inter-

jecting themselves into the job of running state penal

institutions. |

The question of federal court interjection into this

area has been the object of considerable study during

the last year. One such study is the Report Of The

Study Group On The Caseload Of The Supreme Court,

57 F.R.D. 573 (1972). In that Report the problem of

prisoner petitions is discussed and analyzed as follows:

(d) A court of criminal appeals. The problem of

prisoners’ petitions. The dangers of polarization

and politicization would be particularly intense in

an appellate court whose only concern was the

review of criminal convictions. Moreover, there is

an inherent dilemma in such a plan, turning on

whether or not there would be further review on

certiorari in the Supreme Court. If such review

were provided, the screening function of the

Supreme Court would not be materially relieved. If

review were not provided, defendants in criminal

cases would be placed in an inferior and invidious

position with respect to access to the Supreme

Court. We reject a proposal that would put this

class of litigants in that position.

But the problem of prisoner petitions, which the

Supreme Court shares with lower federal courts

and to some extent with State courts, has grown

ever more pressing in the last decade or so, and

does demand special attention. We refer both to

collateral attacks on criminal convictions and to

complaints concerning conditions in prisons.

On the Supreme Court's docket at the October

Term, 1971, the number of petitions in habeas

corpus and other collateral attack cases was 758.

Total State and federal prisoner cases filed in the

lower federal courts in 1971 came to 16,266.

OE ae ntl Pl OO Ae ee ee eee eee ee

Zia

Most of the cases are brought by State rather than

federal prisoners, although filed in federal courts,

and most are habeas corpus petitions. But a

substantial number of prisoner cases—3,129 filed

in the federal courts in 197l—are civil nights

complaints concerning conditions in prisons, and

these will increasingly filter up to the Supreme

Court. The continuing rise in the volume of

prisoners’ petitions, on the docket of the Supreme

Court as also on the dockets of all federal courts, is

reflected in figures collected by the Solicitor

General. There is close identity between these

petitions and filings in forma pauperis. The

Solicitor General reports that the number of papers

filed by his office in the Supreme Court of the 1971

Term in ifp cases increased by 35.1% over the

previous Term. The comparable increase in paid

cases was 17.3%. (Memorandum To The Solicitor

General’s Staff, July 6, 1972.)

The number of these petitions found to have merit

is very small, both proportionately and absolutely.

But it is of the greatest importance to society as

well as to the individual that each meritorious

petition be identified and dealt with. And yet it

seems a misallocation of resources to impose the

burden of sifting through the mass of these

petitions on federal judges, let alone on Supreme

Court Justices. Moreover — and this is at least as

important — these overburdened judges and

Justices, charged with so many other highly

important functions, are less likely to give full and

careful attention to each petition than officials

whose special task it might be made to do so. The

problem is somewhat analogous to one faced by the

medical profession. Mass screening of thousands of

people will uncover cancer in very few, but it will

diagnose it in some at a stage where prospects of

cure are good. The mass screening enterprise is,

therefore, justified. But the screening is not

conducted by highly trained surgeons. To use

surgeons for this purpose would be to misuse them.

Nor, unless they are relieved of their other, more

Jaa

demanding functions. will surgeons likely perform

this routine task with the care it routinely requires,

if undertaking 1 at all is to be justified.

As the Solicitor General has remarked (Memoran-

dum To The Staff, supra), “i]t seems obvious that

there should be a better way to deal with these

questions [presented by ifp prisoner petitions], at

least with respect to collateral review.” It. is

satisfying to belleve that the most untutored and

poorest’ prisoner can have his complaints or

petitions considered by a_ federal judge, and

ultimately by the Supreme Court of the United

States. But we are, in truth, fostering an illusion.

What the prisoner really has access to is the

necessarily fleeting attention of a judge or law

clerk. The question is, would it not be better to

substitute for the edifying symbol, and the illusion

that it presents, the reality of actual, initial

consideration by a non-judicial federal institution

charged exclusively with the task of investigating

and assessing prisoner complaints of the denial of

federal constitutional rights. This institution.

headed by an official of high rank, would have a

staff of lawvers and investigators, and a measure

of subpoena and visitatorial powers. It would be

charged to investigate complaints, make a _ re-

sponse to them, and where possible, try to settle in-

prison grievances by mediation.

All petitions for collateral review or for redress of

grievances concerning prison conditions, from

State or federal prisoners, which could now be filed

in a federal court, would go initially to this new

institution at the election of the prisoner or by

referral to it at the discretion of the court in which

a petition is filed. Three months might be allowed

the new service for dealing with a complaint or

petition lodged orginally with it. At the end of this

period the prisoner could file his papers with an

appropriate court, but the papers would be accom-

panied by a report from the new institution

29a

Thereafter, the matter would proceed as it would

now.

Obviously, the details of this proposal remain to be

worked out; we believe it merits prompt further

study and consideration. [57 F.R.D. at 586-588].

Another suggestion concerning the problem of prison-

ers’ petitions appeared in an article entitled “Prison

Ombudsmen Provide a Safety Valve,” 56 Judicature

314, March 1973. The article discussed the institution of

an ombudsmen system in the prisons to provide

effective relief from maladministration. The author

then went on to say:

In an era where the courts have become overburd-

ened, emphasis should be placed on finding

alternative or complementary means of achieving

just results without unduly increasing the courts’

caseloads. An office of ombudsman could serve this

function. As primarily a complaint investigation

mechanism, the office could readily eliminate

duplication of effort by providing independent

offices of state legislatures, the courts, and even the

correctional administrators with information

which would not otherwise be available to them.

By improving communication and faciliting inves-

tigation, the ombudsman would be able to comple-

ment the sophisticated information systems which

presently exist in government.

The true value of the ombudsman lies not as a

substitute for existing complaint handling mechan-

isms but as an added protection which attempts to

enhance the total grievance machinery by elimi-

nating the present system’s weaknesses. It would

serve to stimulate present procedures within the

correctional system itself, and by so doing would

lessen the number of grievance complaints that are

now gravitating to the courts. By reducing the

number of frivolous complaints and complaints

which are not well-suited for judicial determina-

tion, the courts would be provided more time to

devote to adjudicating issues which are of greater

importance. An avenue of redress such as this

might indeed cause the courts to become more

receptive to the complaints which eventually reach

them. [56 Judicature at 315].

It appears to this Court that the Maryland Inmate

Grievance Commission combines the best of both

suggestions, that is, initial investigation by a non-

judicial institution charged with the responsibility of

investigating and assessing prisoner complaints, and

provision for subsequent review by the courts. In

addition, the federal-state balance is preserved in the

manner expressed by the Supreme Court in Preiser v.

Rodriguez, supra.

In light of these developments, the least the federal

court can do is to give the State system a chance to con-

tinue to purge itself of its abuses, which can only be done

if the inmate complaints are channeled via the inmate

grievance route. It must be emphasized that the

imposition of the exhaustion requirement outlined in

this opinion does not take away the right of the

aggrieved inmate to resort to a federal remedy. All it

does is to put the remedy one step beyond immediate

reach. If the inmate does not receive justice from the

State procedures, he can then file his complaint in the

lhstrict Court under § 1983. As previously pointed out,

this Court does not think that anything in the prior

trend of decisions prohibits this action, although, in al!

candor, the cases would not seem to encourage it. But

those were different cases dealing with different facts,

with administrative remedies almost neolithic com-

pared to the Maryland Inmate Grievance Procedure. In

fact, even it Wilwording is interpreted broadly, the

United States Court of Appeals for the Fourth Circuit, in

Hayes v. Secretary of Department of Public Safety, 455

F.2d 798 (1972). indicated:

While Maryland has recently established an

Inmate Grievance Commission . .. to determine

and recommend the proper redress for meritorious

grievances of inmates of Patuxent and other

Sla

correctional institutions, we take judicial notice of

the fact that the Commission is not yet fully

operative. When it is, there will be time enough for

the Supreme Court to determine if Monroe v. Pape,

and we, our own decisions, should be reexamined.

.. . [455 F.2d at 800].

This Court believes, as does the Court of Appeals of

Maryland, that the Commission is now fully operative,

and takes judicial notice of that fact. Therefore, the

time for reexamination is now.

In prisoner rights cases, as in any other § 1983 cases,

the federal courts are called upon to exercise both

aspects of their jurisdiction, in equity and law. Insofar

as the Maryland statute creating the Inmate Grievance

Commission does not give the Commission, (or the

reviewing courts, for that matter) the power to award

money damages for the deprivation of constitutional

rights which may not amount to a tort under the laws

of Maryland, a serious question as to the propriety of

our action might arise if we made the Maryland

administrative procedure the sole and exclusive remedy

for prisoners seeking redress for deprivation of constitu-

tional rights, thus forever barring them from access to

the federal damages remedy inherent in § 1983.

However, the only thing which the imposition of this

exhaustion requirement would do in these cases is to

work a postponement of the ultimate award of damages

in a meritorious § 1983 suit. Although it may be true

that very few §1983 cases ultimately result in the

awarding of damages, it is equally true that a federal

court cannot close its doors forever to a claim for

damages in § 1983 cases, even if an otherwise wholly

adequate -tate remedy exists.

It is clear that the enabling legislation gives the

Commission, and seems to give the reviewing courts,

only powers comparable to the equity powers exercised

by the federal courts, in that the Commission and the

Secretary can order the officers and institutions of the

correctional system to stop practices offensive to

constitutionally safeguarded rights. The fact that

32a

directives have been issued by the correctional system

was testified to by Mr. Lusby, and the Warden of the

Maryland Penitentiary, Gerald H. McClellan. The

plaintiff introduced evidence that one of these direc-

tives, which requires two guards to be present when a

prisoner's cell is being inspected for various reasons,

has not been followed. The Warden, however, pointed

out that this was due to a tremendous shortage of

prison guards. Under such circumstances, it would

make little difference if the directive had been issued by

a federal court under the threat of contempt, or by the

Secretary of the Commission.

Of the two types of relief available under § 1983, viz.,

injunctive relief and monetary damages, the type that

demands the more immediate adjudication is obviously

injunctive relief. Mr. Lusby testified that the Commis-

sion had on several occasions issued orders that, in

essence, granted the complaining inmate injunctive

relief. In I.G.C. No. 1521, In the matter of: Joseph

Wallace # 107093, Maryland Penitentiary, an interim

order was issued on December 4, 1972. In this order tne

Commission recommended that Mr. Wallace be taken to

the University of Maryland Hospital for an orthopedic

examination. As a result, the inmate was taken to the

hospital for examination on December 15, 1972.

In I.G.C. No. 1383, In the matter of: James Brady et

al., Patuxent Institution, a grievance was filed to

contest the suspension of “lawn visits” by the Institu-

tion. It had been the practice at Patuxent to permit such

visits on Sundays during the warm weather months,

weather permitting. During one of the visits one of the

patients attempted to escape, and because the other

patients did not try to deter the escapee, the Institution

suspended all lawn visits for twelve weeks. As a result

of this complaint the Commission issued an interim

order in the nature of an injunction staying the

suspension of the “lawn visits” until an adequate

hearing was held.

33a

Mr. Lusby also stated that the Commission had

assumed that it had the power to grant “class relief.”

While the plaintiff pointed out several grievances

requesting class relief which had not been granted, it is

significant that they were dismissed as being without

merit. In I.G.C. Nos. 1295 and 1282, the Commission

made recommendations that were approved by the

Secretary for the proper administration of the protective

custody tier at the Maryland Penitentiary.

It is clear that not only does the State Inmate

Grievance Commission have power comparable to the

United States District Courts in such cases, but it is

certain that the powers of the Commission can, in most

cases, be exercised considerably more quickly to remedy

offensive patterns of official conduct than can the

powers of the federal courts. This is due, of course, to

the crowded dockets of the courts in which, of necessity,

prisoner cases often receive the lowest priority. Also,

the fact that the Commission functions in close

conjunction with the Secretary of Public Safety and

Correctional Services gives its orders a degree of

practical enforceability which those of the court often

lack, insofar as judicial decrees are dependent for their

enforceability upon respect for the judicial process and

fear of incarceration for contempt. Obviously, very few

state officers are ever imprisoned for contempt of a

federal court order, and one may wonder how willingly

they comply with the terms of such an order. However,

where, as here, the authority enforcing an order to

cease-and-desist from a certain practice is the authority

with the power to fire or otherwise discipline an officer

who balks at compliance, it would seem that corrective

orders would be more enforceable as a practical matter

than mav be similar orders of a federal court. An added

factor weighing in favor of the superiority of the state

administrative procedure in the area of equity-type

relief, is the fact that the Commission, through the

Secretary, has power to discipline, or even fire, persons

who are guilty of abusing prisoners. Obviously, no

34a

federal court has like power for not even the most

fervent federalist would support the notion that a

federal court can take administrative sanctions against

particular state officers.

[4] Thus, it is clear that the Maryland Inmate

Grievance Procedure offers not only an effective, but a

swift, alternative to the exercise of federal equity power

under § 1983. Of course, upon exhaustion of the state

remedy, an inmate, in a proper case, may still cal! upon

the equity power of the federal court if the exercise

thereof is needed in a particular case. If, of course, the

remedy of damages is needed to make a prisoner whole

again in a particular case, that remedy will likewise be

available to the prisoner after he has exhausted the

state administrative procedure, United Automobile,

Aerospace, and Agricultural Implement Workers of

America (UAW) v. State Farm Insurance Company, 350

F. Supp. 522 (N.D. Ill. 1972). Unlike the situation with

respect to injunctive or other equity-type relief, there is

no sense of immediacy attendant upon the awarding of

money damages to redress particular deprivations of

constitutional rights. The money damages are only

given in such cases where the rights infringed upon are

admittedly incapable of any sort of rational valuation,

because it oftens seems the only way to compensate a

person for the wrong that he has suffered. Indeed, our

whole common law scheme of awarding damages in

civil cases turns upon the assumption that the money

paid by the malefactor to the injured party is the cure-

all for legal wrongs. We are not so sure that this is the

case in the prisoner rights area, insofar as the equity-

type relief which the Maryland Commission can give,

as outlined above, seems not only more readily

available, but also more meaningful. At any rate, it is

clear that whatever postponement of the right to money

damages under §1983 is worked because of the

imposition of an exhaustion requirement does not

amount to a deprivation of the ultimate right to such

relief in theory nor is it a deprivation in practical effect.

This is true because an award of money does not require

the immediate attention which ought to be given to

35a

demands for equitable relief, which in fact is given

under Maryland procedure. The key point is that the

ultimate right to damages is preserved during the

complainant’s pursuit of his state administrative

remedies, and is not destroyed by a requirement that he

resort to these remedies before bringing his federal

action under § 1983.

[5] Therefore, this Court concludes that before it will

exercise jurisdiction over a prisoner § 1983 complaint,

the inmate must exhaust the available state adminis-

trative remedy provided by the Maryland Inmate

Grievance Commission procedure. Even if the com-

plaint seeks only monetary damages, this avenue of

relief should be exhausted. The claim for monetary

damages is inextricably tied to prison regulations and

disciplinary procedures. The Maryland Inmate Griev-

ance Commission provides a forum with built-in

judicial review which can more expertly sort out the

meritorious from the frivolous.

Such a disposition by initial action in the federal

courts is not attainable except by tortuous process, as

demonstrated by these cases as well as the vast

majority of other § 1983 prisoner petitions. Nor does it

frustrate the original intendment of § 1983, for having

taken this route the complaining prisoner can come to

this Court with the issue of liability clearly defined on

the record. Thus, the federal court can readily dispose of

the litigation in the same manner in which it now

handles habeas corpus petitions.

These two McCray cases, in accordance with the

foregoing opinion, should be dismissed. But to further

highlight the tedious process in which a federal court

must engage, these cases will be disposed of on the

merits as well.

Il.

MERITS

[6] The complaints in both of these actions invoke

jurisdiction of the Court pursuant to 28 U.S.C. § 1343(3)

36a

and (4). 42 U.S.C. § 1983, and the Constitution of the

United States of America. Plaintiff alleges in both cases

that the acts of the defendants unconstitutionally

deprived him of his right to be free from physical abuse

and cruel and unusual punishment as guaranteed by

the eighth and fourteenth amendments to the Constitu-

tion. He further contends that in both cases this abuse

and punishment was arbitrarily imposed in violation of

the due process clause of the fourteenth amendment. He

also charges that Captain Burrell acted to deny him

proper medical care following injuries allegedly re-

ceived in a fire in his cell.

The testimony in both of these cases, as in most

prisoner complaints of this type, is in conflict. While a

general picture of the circumstances did develop, the

question of liability hinges on the credibility of the

witnesses. The Court as the trier of the facts must

consider not only the evidence introduced, but also must

evaluate the demeanor of the witnesses to determine

their credibility. The contradictory statements of the

plaintiff during the trial of these cases considerably

diminished his credibility. One obviously platant false

assertion occurred after he had informed the Court that

he had lost count of how many cases he had pending

before the various judicial forums in the State. In

response to a question posed by the Court, Mr. McCray

stated that he never files complaints in more than one

court based on the same cause of action. After the

conclusion of the trial, it came to the Court’s attention

that the plaintiff had filed a suit in the Superior Court

of Baltimore City alleging the same constitutional

deprivations as are involved in Civil No. 72-68-N

(Milton McCray v. Captain Burrell). While the defend-

ant in 72-68-N is Captain Burrell, and the suit filed in

the Superior Court is against the Warden of the

Marvland Penitentiary, 72-68-N was amended at the

time of trial by the plaintiff eliminating the Warden

and the Penitentiary Medical Staff as defendants.

Clearly this indicates, contrary to the plaintiff's

contention at trial, that he does attempt to litigate the

same causes of action simultaneously before more than

37a

one forum. A copy of the original complaint filed in 72-

68-N, and a copy of the complaint filed in the Superior

Court are included as appendices to this opinion.

The factual situations in both cases center on

disruptive incidents involving the plaintiff. and a

determination by the defendants that he be placed in an

isolated cell without clothes or a mattress. In Milton

McCray v. Sgt. V. D. Smith, (Sgt Bernard D. Smith)

Civil No 72-234-N, the plaintiff alleged that on Novem-

ber 20, 1971, while he was confined on the Maryland

Penitentiary’s South Wing (a wing used to house

inmates who have violated prison regulations), Sgt.

Smith removed him from his cell, and placed him in the

isolated confinement area (I.C., known to the inmates

as the “hole”) for approximately two days.

The plaintiff was on the South Wing between

November 17 and November 20, 1971. Prior to Novem-

ber 20th, Sgt. Smith had never met McCray. Plaintiff

admitted that on November 20, 1971 he was placed in a

cell on the “street side” of the South Wing, but that he

asked to be moved to another cell when he discovered

that the cell was in an unsanitary condition (he alleged

that there were lice in the cell). Sgt. Smith then came to

McCray’s cell and took him to the “flats” (the lowest

tier on the South Wing). Plaintiff was then given a

shower and was deloused and Sgt. Smith was told by

the Warden of the Penitentiary to provide the plaintiff

with his law books and legal materials while he was on

the South Wing. However, these orders were not

complied with because, according to the unrefuted

testimony of the defendant, the process of packing and

moving personal belongings could take from two to

three days to complete. The Court notes at this juncture

that there was testimony during the course of these

trials that the Penitentiary has been forced to operate

with a substantial shortage of prison personnel.

After the plaintiff had been placed in a cell on the

fourth tier, “yard-side,”’ of the South Wing, he began

“hollering and yelling,” demanding his legal materials

and his medicated shower. Apparently this disturbance,

38a

which was quite substantial according to testimony of

both the plaintiff and the defendant, prompted Sgt.

Smith to remove McCray from the South Wing and

place him in the isolated cell area. Clearly this measure

was taken to avoid the possibility of causing a greater

disturbance among the other inmates.

While the defendant was transferring the plaintiff

from his cell on the South Wing to the LC. area, McCray

began shouting insults and threatening to do bodily

harm to himself. Interpreting these threats as an

indication of mental and emotional instability, and

having personal knowledge of prior incidents involving

inmates in isolation who had committed suicide, Sgt.

Smith decided to strip McCray and remove the mattress

from the cell. He testified that he felt it was better to

subject the plaintiff to some discomfort than to risk that

he might attempt to kill himself.

Th+ cell in which McCray was placed, I.C. #5, was

about 4-5 feet wide, 12-16 feet long and 12 feet high. It

had four concrete walls, a concrete ceiling and a

concrete floor. At the front of the cell was a solid, metal

door and a barred, grill-type door, either or both of

which could be closed. There was a toilet and a sink in

the cell, and on the floor was a concrete slab about 9

feet long, 3 feet wide and 12 inches high. Normally a

mattress is placed on this slab and serves as the

inmate’s bed.

It was shown during the trial that the recommended

procedure, when a prison official places an inmate in

the I.C. area, requires that he notify his immediate

superior. It is significant that no evidence, other than

the absence of any reference to McCray in the log book

during this period, was introduced to indicate that the

defendant had not complied with this directive. Sgt.

Smith testified that they try to log all occurrences, but if

there is considerable activity among the inmates, often

the guards are unable to make these entries.

The next day when Sgt. Smith checked the plaintiff

he discovered that McCray had defecated in a cup, and

smeared this waste throughout the cell. Smith then

39a

notified the psychologist, Mr. Musk, and decided to

retain McCray for an additional day. While it appears

that Mr. Musk may not have examined the plaintiff

before he was removed from the I.C. area, it is possible

that this may have been due to the fact that November

21st was a Sunday. Mr. Musk testified that he did not

recall talking to McCray about this specific incident,

nor did he have a record of such a meeting. However, it

was brought out during his testimony that he had

spoken to the plaintiff on at least ten occasions, and he

had made a record of only four of these visits.

Plaintiff also alleged that he was not given any

showers during the two days that he was confined in

L.C., but the records introduced at the trial clearly

indicated that he was given a shower on November 20.

1971.

The incident that is the basis for McCray’s suit

against Captain Burrell occurred on January 1, 1972.

The plaintiff had been placed in Cell #325 on the South

Wing on December 31, 1971 sometime between 6:00 and

7:00 p.m. The defendant was a correctional officer and a

duty captain whose responsibility was the operation

and administration of the entire Penitentiary on the 8

a.m. to 4 p.m. shift.

Plaintiff had been placed in cell #325 by Officer

Fazzio, and it appears that the cell had not been

cleaned since the departure of the last occupant. There

was paper, dirty blankets, a metal locker and other

trash lying on the floor. The plaintiff requested that the

cell be cleaned up, but was informed that it was too late

in the evening. McCray then swept the trash in front of

his cell door to be pushed out into the tier the following

day.

At approximately 9 a.m. on January Ist he borrowed

a cigarette and a light from the inmate in the adjacent

cell, even though he testified that he usually does not

smoke. The plaintiff alleged that he dozed off with the

lit cigarette in his hand, and when he awoke the cell

was filled with smoke. He testified that he did not set

the fire intentionally, but he was charged with

40a

purposely causing the fire. Plaintiff stated that he

jumped from bed and attempted to stamp out the fire,

and when this failed he tried to smother the blaze with

the mattress, but this merely worsened the situation.

He then took a bucket that was in the cell and tried to

carry water from the sink to douse the fire. The bucket,

however, would not properly fit under the sink to allow

plaintiff to fill it sufficiently for it to be useful. He then

used the metal cabinet which was lying on the floor of

the cell to first break the sink and then the toilet in

alleged efforts to allow the water to flow more freely.

When these attempts failed he covered his head and

body with water.

The guards, in the meantime, had attempted to put

out the fire but the fire extinguisher did not work

properly. After a short period of time, they procured a

second extinguisher and managed to put out the fire.

The plaintiff testified that he had suffered burns to

his hands and face, but the testimony of the nurse on

duty at the time of the fire, Mrs. Weber, and the

dispensary records, revealed that there were no blisters

or serious burns evident. She stated that when the

plaintiff was brought into the infirmary he was

arrogant and initially refused to allow Officer Martin to

apply cold compresses to the areas that he complained

had been burned. However, the officer was finally able

to apply the compresses and bacitracin ointment to his

burns. His eyes were irrigated and his ears were washed

out. Mrs. Weber, according to the testimony of the

plaintiff, then recommended that he be placed in a

locked cell. Captain Burréll ordered that he be placed in

the Mental Observation area (M.O.). Captain Burrell

testified that he issued this order because he had been

informed that the plaintiff had intentionally set the

fire, and, since this was not a rational act, he believed

that the inmate was mentally unstable. Captain Burrell

made a reasonable determination from the circum-

stances at the time. Having done this he decided, for the

safety of the other inmates and the plaintiff, to place

McCray in M.O. without clothes or a mattress. He

hla

testified that whenever he had reason to believe that an

inmate might try to injure himself he removed from the

cell any items that could be used for this purpose.

The plaintiff was allowed to remain in the M.O. area

for approximately forty-eight hours, from January 1-3,

1972. It does not appear that he was visited by a

medical doctor, nurse, or a psychologist during this

interval. It is important to note that shortly after the

plaintiff was treated in the dispensary, Nurse Weber

contacted Dr. Holljes and advised him that the patient

had been placed in M.O. She also attempted to contact a

Dr. Stewart but was unable to reach him. The records

introduced indicated that the plaintiff was next seen by

a physician, a Dr. Wood, on January 4, 1972.

On January 13th the plaintiff was examined by Dr.

Gould, who testified that at this time he noticed several

crusted sores on McCray’s cheeks, ears, a small amount

on his back (which the plaintiff did not remember until]

questioned on cross-examination), and some sores on

his knuckles. Dr. Gould further testified that the

application of cold compresses and an antibiotic

ointment, similar to the type applied to the plaintiff by

Officer Martin, was the appropriate treatment to be

entployed. While he stated that this treatment should

have been continued for a period of time, he could not

say that it was inadequate.

Although no testimony was given to explain why a

psychologist did not examine the plaintiff during his

confinement in the M.O. area, it is evident to this Court

that the New Year's holiday weekend was a contribut-

ing factor. Captain Burrell mentioned during his

testimony that the Penitentiary was shorthanded at

this time, a factor he considered when he decided to

place the plaintiff in the M.O. area.

The plaintiff contends that the procedures employed

by both defendants were disciplinary in nature, and

that they violated his right to due process of the law. He

asserts that the requirements of due process were not

satisfied when the defendants failed: (1) to give him

adequate notice of the charges; (2) a hearing before a

relatively objective tribunal, and (3) an opportunity to

respond to or explain the alleged offenses.

It is true, as the plaintiff points out, that when a

prisoner is subjected to substantial deprivations, they

should be premised on a rational determination of facts.

See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971),

cert. den. 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740

(1972). However, this Court disagrees with the allega-

tions that the defendants transferred the plaintiff to an

isolated area for disciplinary reasons. Rather, _the

testimony was quite clear in both cases that McCray

had caused substantial disturbances, and he had been

removed to avoid the possibility of continued disrup-

tions that might involve substantial portions of the

South Wing. It is important to bear in mind that the

Maryland Correctional System, like many others, has

been plagued by considerable prisoner unrest. While

this Court is not absolving the prisons of all responsi-

bility for this problem, it is clear that a prison

correctional officer must be concerned with avoid'ng

situations which could ignite a riot. This was the

principal factor considered by the defendants in placing

th. plaintiff in an isolated cell.

In hoth cases, once the decision to isolate the plaintiff

was made. the defendants were faced with a dilemma.

Sgt. Smith had to determine if the plaintiff's outburst

was merely a way of venting his fustrations, or

whether he was in such a frame of mind that he would

actually attempt to harm himself. Captain Burrell’s

task was certainly no easier. Once he concluded that

McCray may have set his cell on fire intentionally, a

conclusion undoubtedly buttressed by the guards

reports and the fact that the plaintiff did not ordinarily

smoke, the defendant Burrell had to determine if the

plaintiff would continue to act in a dangerous and

disruptive manner. Since the deliberate setting ofa a

was not only dangerous to the other prisoners, bu' to

the plaintiff as well, he had to be sure that McCray

could not attempt to injure himself in some other way.

To require a prison official to refrain from isolating

an inmate until a due process hearing can be held to

dia

determine if the prisoner might attempt to harm

himself, and still subject the official to liability for not

controlling the actions of that particular inmate, is

totally unreasonable. Such a standard of conduct would

lead to the resignation of many competent guards, and

would deter others from pursuing this occupation as a

career. The net result would be an everincreasing

manpower shortage in our correctional systems, a

problem that is already a major problem.

Captain Burrell and Sgt. Smith both stated that it

was standard operating procedure, when confronted

with an inmate exhibiting an irrational state of mind.

to strip him of his clothes and remove the mattresses.

While this procedure obviously caused the plaintiff

considerable discomfort, it was certainly reasonable for

the defendants to opt for this alternative rather than to

risk the chance that the plaintiff might use these items

to harm himself. Neither Sgt. Smith nor Captain

Burrell had any other choice but to place McCray in an

isolated cell for the security of the Penitentiary, and it

was necessary to remove all of his clothes and the

mattresses from the cell for his own safety.

While, ideally, it may be preferable to remove a

prisoner placed in isolation for nondisciplinary reasons

after a few hours, in these two cases such a course of

action did not appear to be feasible at the times

involved. When Sgt. Smith ordered the plaintiff

removed from his cell on the South Wing, McCray

reacted violently. After a night in the isolated confine-

ment area, Sgt. Smith discovered that he had defecated

and smeared his waste about the cell. Under an

Administratvie directive issued on August 10, 1970 by

the Deputy Commissioner of the Department of Correc-

tional Services, James Jordan, in the absence of a

psychologist’ psychiatrist, an inmate may be placed in

an isolation cell for his own safety, or that of the

inmate population, when he displays mentally dis-

turbed behavior. Such behavior was clearly present in

the instant case. The directive further provides that a

psychologist ‘psychiatrist be immediately notified after

the confinement, and the inmate should be evaluated

dda

within a twenty-four hour period. While Sgt. Smith may

not have followed this directive to the letter, he did

notify the psychologist the following morning, Sunday,

November 21. 1971, when he discovered that the

plaintiff had smeared defecation about his cell. He then

ordered the cell cleaned and scrubbed, and after another

dav of observation he had McCray returned to the third

tier of the South Wing.

In the case involving Captain Burrell, the plaintiff

was confined in isolation in the Mental Observation

area for forty-eight hours. This incident not only

occurred during the New Year's Day holiday period, a

time when a substantial portion of the prison staff was

on leave, but had endangered the lives of every inmate

confined on the South Wing. Thus, the most pressing

matter facing the defendant was the protection of the

other inmates. Confronted with a skeleton crew of

yuards, his only alternative was to separate the

plaintiff from the rest of the inmates until his staff

returned to its normal strength on Monday, January

jrd. It also appears that the decision to deprive the

plaintiff of his clothes and a mattress during the entire

torts ght hour period may have stemmed from the

unavailability of a psychologist who could examine and

evaluate MeCray’s condition.

None of these events constituted an arbitrary and

capricious punishment of the plaintiff. In neither case

was he removed from the South Wing as a disciplinary

measure, but rather as a security precaution. The

plaintiff's clotaing and mattress were removed in both

cases when he was placed in an isolation cell, in a

reasonable attempt to prevent him from injuring

himself. The length of time that he remained in isolated

confinement was not unreasonable under the circum.

stances in either case. The fact that the plaintiff was

not examined by a psychologist on either occasion was

not a result of neglect by the defendants, but appears to

have been caused by the unavailability of such

personnel during the weekends in question. The Court

thus concludes that Sgt. Smith and Captain Burrell did

Are

45a

not arbitrarily impose a punishment upon the plaintiff

in violation of his right to due process, but rather they

were attempting to take reasonable precautionary

measures to insure the safety of the plaintiff and the

other inmates of the Penitentiary.

The plaintiff further contends that the condition of

the cells and the lengths of time that he was confined

constituted cruel and unusual punishment in violation

of the eighth amendment. While the conditions of the

cells were by no means luxurious, and his confinement

undoubtedly unpleasant, this Court does not find that it

constituted cruel and unusual punishment. When

testifying on his own behalf against Sgt. Smith, the

plaintiff admitted that when he discovered the condi-

tion of the first cell in which he was placed on the South

Wing he “really started to perform.” He also testified

that he had, in fact, “hollered” long and loud when he

did not immediately receive his legal materials. Once

Sgt. Smith ordered the plaintiff removed from his cel!

and placed in the I.C. area, it appears that the plaintiff

indicated he intended to do bodily harm to himself.

Since Sgt. Smith had met McCray for the first time that

same day, it was reasonable under the circumstances

that he remove all items from the cell that could be used

by plaintiff to carry out his stated intention.

Captain Burrell ordered the plaintiff confined in the

Mental Observation area without clothing and without

a mattress for similar reasons. The defendant testified

that the intentional setting of a fire in one’s cell was

clearly an irrational act, and it is standard operating

procedure at the Penitentiary to place an inmate in an

isolated cell without clothes or a mattress when he

exhibits an unstable state of mind.

The confinement of the plaintiff in both cases for

forty-eight hours was not an unreasonable period when

one considers the surrounding circumstances in each

case. Sgt. Smith returned the next morning to find that

the plaintiff had smeared defecation in his cell. This

demonstrated a somewhat less than stable condition,

and an additional twenty-four hours in isolation

doa

without clothes appears to have been warranted.

Captain Burrell was faced with an inmate who had

attempted to burn his cell, and possibly the entire South

Wing. The Penitentiary was operating at this time with

a skeleton crew, and did not return to its normal

strength until January 3, 1972, the day the plaintiff was

released from the M.O. area.

The physical aspects of the cells in the isolated cell

area and the mental observation area (which are

substantially the same) are primitive at best. However,

it is significant that the plaintiff candidly admitted on

several occasions he had requested to be placed in the

I.C. area because it was more conducive to preparation

of legal papers. While it is true that he was fully clothed

on these later visits to LC., it does indicate that the

conditions of the cells were not intolerable.

The Court concludes that the defendants’ actions

were not excessive exercises of authority beyond the

limits of civilized standards of decency. See Trop v.

Dulles, 356 U.S. 86, 100-101, 78 S. Ct. 590, 2 L. Ed. 2d

630 (1958). Nor were they intended as punishment for

the plaintiff's conduct, but, as has been repeatedly

stated, they were employed as precautionary measures.

lhe removals of the plaintiff from his cell on the South

Wing to isolated cells were not pointless impositions of

suffering, nor was there a less severe alternative that

would have achieved the purposes for which the

confinement was imposed. Furman v. Georgia, 408 U.S.

238, 92S. Ct. 2726. 2747, 33 L. Ed. 2d 346 (1972).

|7] While the plaintiff asserts correctly that punish-

ments which are not per se cruel and unusual may

become so if they are disproportionate to the offense

committed, such is not the case here. He cites LaReau v.

MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) for the

proposition that confinement in a strip cell, even for

short durations of time, falls “below the irreducible

minimum of decency required by the Eighth Amend-

ment.” However, that case is distinguishable from the

ones before this Court. In LaReau the prisoner was

found in possession of contraband materials. Pursuant

47a

to prison regulations he was punished by the imposition

of an indeterminate sentence, and he served five days

in isolation. The finding there of cruel and unusual

punishment by the Second Circuit appears to have been

premised upon the fact that the punishment was

disproportionate to the offense committed, and that a

less severe punishment would have adequately

achieved the purposes for which the punishment was

imposed. Such is not the case here. The plaintiff was

not confined as a punishment. He was isolated for his

own protection and that of the other inmates. He was

not confined any longer than was necessary to insure

this protection. The placement of the plaintiff was not

unreasonable in light of his conduct, nor was there a

less severe alternative available to the defendants.

{8} The allegation made in Civil Action No. 72-68-N,

that Captain Burrell caused the plaintiff to be denied

adequate medical care, is totally without merit. He was

taken directly to the dispensary for treatment after the

fire was placed under control. The treatment received

by the plaintiff was shown to be the appropriate care

for the type of injuries that he had allegedly received.

Any failure of the medical staff to diagnose the extent

of the injuries was directly attributable to the plaintiff's

conduct. When he first arrived at the dispensary he was

arrogant and refused any treatment. It was due only to

the perseverance of Nurse Weber and Officer Martin,

and their willingness to spend four times the normal

length of time treating the prisoner, that he received

any medication at all. Once he was placed in the mental

observation area, Nurse Weber contacted Dr. Holljes

and informed him of the incident, plaintiff's com-

plaints, the extent of his injuries as she perceived them,

and the treatment administered to him. Dr. Holljes

instructed her to contact Dr. Stewart, which she

unsuccessfully attempted to do. She testified that she

did not continue in her efforts to reach Dr. Stewart

because at 2 p.m. that same day there were no

complaints from the plaintiff. In addition to this

treatment, Mr. Musk, a psychologist for the Peniten-

tiary, testified that he saw the plaintiff the week of

January 4th concerning the incident.

48a

Even if the plaintiff had not received this care, the

Court does not see how Captain Burrell could possibly

be held liable. His unrefuted testimony was that he was

responsible for the control and security of the hospital,

but not for its operations. Clearly, if the plaintiff was

not treated properly by the medical staff, which the

Court emphasizes was not the case, this could not be

attributed to the defendant. —

{9] The defendants in these cases also have available

to them the defense of reasonable good faith that their

actions were constitutionally permissible. Landman v.

Royster, 354 F. Supp. 1302, 1317 (E.D. Va. 1973). The

applicability of this defense to damage actions brought

by a prisoner under § 1983 was recently recognized by

the United States Court of Appeals for the Fourth

Circuit in Skinner v. Spellman, 480 F.2d 539 (4th Cir.,

1973). In that case the Court held that if the defendant

could show he was acting in reasonable good faith

reliance on standard operating procedure, he would not

have to respond in damages.

In Civil Action No. 72-234-N, the testimony estab-

lished that the plaintiff was causing a disturbance on

the South Wing, and that the other inmates requested

he be removed. It was also brought out in the cross-

examination of Sgt. Smith that he had the authority to

place an inmate in the I.C. area, and that after such

action he was to immediately notify his immediate

superior. There was no evidence introduced which

would lead this Court to believe that Sgt. Smith had not

notified his superior. The defendant Smith also stated

there was a verbal understanding on the South Wing

that an inmate was not to be kept in isolation for more

than three days. This procedure was followed in this

case.

In Civil Action No. 72-68-N, Captain Burrell followed

an Administrative directive when he confined the

plaintiff in the Mental Observation area after the latter

apparently started a fire in his cell. Defendant stated

4Y¥a

that it was a normal operating procedure to remove the

clothes of a prisoner who had exhibited an unstable

mental and emotional state.

Therefore, since the defendants, as shown from all

the facts, acted in good faith in exercising their

discretion, Bennett v. Gravelle, 323 F. Supp. 203, 214 (D.

~~ Maes they are immune from suit under 42 U.S.C. §

For the reasons stated herein, it is this 16th d f

October, 1973, ordered: et

1. That the defendants’ Motions to Dismiss in Civil

Actions Nos. 72-68-N and 72-234-N be, and the same

hereby are, granted;

2. That plaintiffs claim for relief in Civil Action N

72-68-N be, and the same is, denied: and z4

3. That the plaintiffs claim for relief in Civil Acti

No. 72-234-N be, and the same hereby is, denied. *y

APPENDIX A

Habeas Corpus and 42 U.S.C. § 1983 Civil Rights Suits

Filed by Milton McCray in the United States District

Court for the District of Maryland

1. Milton McCray v. State of 7

15745/62 , ate of Maryland (H/C)

Suits filed in 1970 (9)

2. Milton McCray v. F t Cal , — 70-

wad y orrest Calhoun, Jr. (C.R.) — 70

3. Milton McCray v. Director Patuxent Institution, et

al. (C.R.) — 70-634-N

4. Milton McCray v. State of Mary! (C.R.) — 70-

aa y of Maryland (C.R.) — 70

5. Milton McCray v. Eva Sacks (C.R.) — 70-1064-N

6. Milton McCray v. State of Maryland (H/C) — 70-

1407-N

7. Milton McCray v. John O. Rutherford, Clerk of the

Baltimore City Court (C.R.) — 70-1409-N

8. Milton McCray v. Mr. Calhoun, et al. (C.R.) — 70-

1410-N

9. Milton McCray v. Mr. Boslow, etc. (C.R.) — 70-

1411-N

10. Milton McCray v. Mr. James A. Hall (C.R.) — 70-

1412-N

Suits filed in 1971 (9)

11. Milton McCray v. Patuxent Institution (C.R.) —

71-184-N

12. Milton McCray v. Mr. Calhoun (C.R.) — 71-237-N

13. Milton McCray v. Dr. Boslow and Staff (C.R.) —

71-2458-N

14. Milton McCray v. Dr. Boslow, et al. (C.R.) — 71-

239-N

15. Milton McCray v. Judge Sklar, et al. (C.R.) — 71-

2A0-N

16. Milton McCray v. Hon. Judge A. Sklar (C.R.) —

71-552-N

17. Milton McCray v. Director Patuxent Institution

(H/C) — 71-991-N |

18. Milton McCray v. Honorable Judge Sklar, etc.

(C.R.) — 71-1200-N

19. Milton McCray v. Warden Maryland Penitentiary

(C.R.) — 71-1395-N

Suits filed in 1972 (14)

20. Milton McCray v. Warden of Maryland Peniten-

tiary (C.R.) — 72-68-N

21. Milton McCray v. Warden of Maryland Peniten-

tiary (C.R.) — 72-69-N

5la

22. Milton McCray v. Sergeant V. D. Smith (Badge

No. 153), Maryland Penitentiary — (C.R.) — 72-234-N

23. Milton McCray v. L. R. Mooney, et al. (C.R.) — 72-

463-N

24. Milton McCray v. Warden Maryland Penitentiary

(C.R.) — 72-483-N

25. Milton McCray v. Mr. M. Hawkins. Warden

Maryland Penitentiary (C.R.) — 72-484-N

26. Milton McCray v. Paul R. Schlitz (C.R.) — 72-485-

27. Milton McCray v. Mr. Horowitz, States Attorney

(C.R.) — 72-521-N

28. Milton McCray v. Patuxent Institution (C.R.) —

72-661-N

29. Milton McCray v. Francis B. Burch, Attorney

General of Maryland, et al. (C.R.) — 72-783-N

30. Milton McCray v. Director of Patuxent Institution

(C.R.) — 72-918-N

31. Milton McCray v. Off. Butterworth, et al. (C.R.) —

72-919-N

32. Milton McCray v. Warden Maryland Peniten-

tiary, et al. (C.R.) — 72-1119-N

33. Milton McCray v. Warden Maryland Peniten-

tiary, et al. (C.R.) — 72-1139-N

34. Milton McCray v. Mr. Gerald McClellan, Warden,

et al. (C.R.) — 72-1172-N

Suits field in 1973 (3 as of 4/5/73)

35. Milton McCray v. State of Maryland Officials

(C.R.) — 73-55-N

36. Milton McCray v. Mr. Richard Kinlein (C.R.) —

73-89-N

37. Milton McCray v. Mrs. Tucker Maryland Peniten-

tiary, et al. (C.R.) — 73-269-N

j2a

APPENDIX B

In The United States District Court

for Maryland

Civil 72-69-N

Milton McCray 110563

Warden, Md. Pen.

SUIT

To :he Honorable Judge of said Court.

Petitioner, Milton McCray, and Officer Furrell of Md.

Penitentiary had a pornography business going in the

institution which profited them an average of seventy

dollars a week. Because Officer Furrel did not know

how much money petitioner was making he received

between $15 to $20 a week or approximately $80 to 90

dollars a month.

HOW THE MONEY WAS MADE

Pornography and sex books are prohibited in this

institution therefore are in great demand by the inmate.

Because of petitioner connection and reliable source

Officer Furrel he had, at the time Mr. Furrell set him up

to be caught, over fifty very good sex books.

Petitioner Rent said book for 2, 3, or 5 packs a night

averaging 7 to 8 cartons a night which are sold to the

inmates at 4 packs for a dollar bring $15 or more in

cash per night.

53a

When petitioner was set up, Mr. Furrell and officers

unknown went into petition’s cell while he was working

on Dec. 16, 1971 broke into petitioners locker, which

was unnecessary since all they had to do was call

petitioner and request the key, took (23) twenty-three

sex books and ($275) two hundred and seventy-five

dollars and (95) ninety-five packs of cigarettes.

When petitioner returned to his cell the door was open

and all his valuable were gone either the officers had

taken them or the inmate as a result of the officers, Mr.

Furrell deliberately and spitefully leaving petitioners

cell door open had taken them.

Petitioner immediately reported what had happened

to his cell to the officer in charge who sent him to the

major office.

Petitioner explained what had happened to the major

who refused to investigate the matter properly. Peti-

tioner requested that something be done about his

property. Major Mills ordered petitioner locked in the

hole. Four officer grab petitioner and when petitioner

resisted the unexpected and brutal treatment he was

beat cruelly with fist and magazines and thrown in the

hole nude.

Petitioner was charged and tried but because peti-

tioner had taped two of the business conversation the

charges were dismissed.

PETITIONER CONTEND

(1) That Mr. Furrell and officers had no right in

petitioners cell without petitioner being present and a

supervisor.

(2) That Mr. Furrell and officers had no right

burglarizing petitioner locker (breaking lock) when all

they had to do was request key from petitioner.

(3) That the following personal property was stolen

or confiscated.

1) One set of law books $ 50.00

2) One box of daily record papers $200.00

3) One lock (cost 15 packs) $ 5.00

4) 15 cassettes a $9 each $135.00

5) 95 packs of cigarettes $ 35.00

6) $275 in cash $275.00

7) 2 mens watches $185.00

8) 11 pair of silk underwear $ 77.00

9) One cassette taperecorder $ 50.00

10) One suit $ 85.00

11) One shoes $ 35.00

12) 6 shirts $ 75.00

13) 1 leather jacket $ 85.00

14) One AC triple jack adapter $ 9.00

15) One microphone $ 15.00

16) 7 pair of socks $ 18.00

17) 3 pair of pants $ 60.00

18) 23 sex books $ 70.00

(4) That the institution admit to the lost of

1) 1 pair of pants $ 20.00

2) 1 leather jacket $ 85.00

see no. 13 above

3) 1 shirt $ 16.00

4) 2 cassettes tape $1000.00 because they con-

tained the taped conversation between peti-

tioner and officer Furrell.

Wherefore petitioner pray that this Honorable Court

will grant him $500,000 in damages etc. for Mr.

Furrell’s and officers deliberate and spiteful negligence

in leaving his cell open and for the confiscation of

petitioners personal property.

s/ MiLcTon McCray,

Petitioner.

I, Milton McCray, hereby certify that due to my

poverty I am unable to pay the cost of this proceeding

or give security therefor.

s/ Mitton McCray.

dda

APPENDIX C

In the Court of Maryland United States District

Civil 72-67-N

January 13, 1972

Milton McCray 110563

Warden Md. Penitentiary

SUIT

To the Honorable Judge of Court.

On January 1, 1972 petitioner, Milton McCray’s cell

caught on fire, resulting from a lit cigarette falling from

his hand into some paper while he was asleep. When he

woke up his cell was blazing.

A officer ran up to the door with a fire extinguisher

but nothing would come out.

PETITIONER CONTEND

1. That the officer deliberately bought the empty fire

extinguisher to his door knowing that it was empty. He

could not help but know it was when he picked it up.

2. That said officer after finding out that said

extinguisher was empty ran away and stayed for an

eternity. The fire extinguisher being empty almost cost

petitioner his life.

3. That the officers deliberately took their time

putting the fire out, causing him to suffer first degree

burns on the face, ears, hand, and arms. He is also

having lung trouble.

4. That he has been denied medical treatment for two

weeks.

5. That he has been laying on the floor suffering for

over two weeks because no doctor would treat him.

6. That each doctor that saw him referred him to

another doctor therefore no treatment was received,

administered.

7. That because of the doctors deliberate spiteful and

unprofessional negligence petitioner has suffered much

pain.

8. That because of the deliberate negligence of the

persons responsible the empty fire extinguisher has

caused petitioner to suffer unnecessarily.

Wherefore petitioner pray that this Honorable Court

will award him his immediate release and $500,000 in

damages.

s/ MiLtTon McCray

1, hereby, certify due to his poverty, h

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