# Petition — Burrell v. McCray > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0689%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 471 ## Text 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, v. 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. _ ——— <> = 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 ns 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 108a 108a 108a 24 i7 24 16 17,18 17 18,19 24 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 iv 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, v. MILTON McCRAY, Respondent. SERGEANT V. D. SMITH, erc., Petitioner, v. MILTON McCRAY, Respondent. GERALD McCLELLAN, et AL., Petitioners, v. JAMES E. X. STOKES, Respondent. DR. HAROLD M. BOSLOW anpb DR. DOMINGO C. SORONGON, Petitioners. v. 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 . — — 2 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 3 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 4 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 5 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 7 (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 8 os 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. 9 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. 10 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 11 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 12 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. 13 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. 14 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 15 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: 16 “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 17 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. 18 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 19 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 20 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 21 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). 22 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). 23 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). 24 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 25 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. 26 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. la APPENDIX Milton McCray v. Robert Burrell Milton McCray v. 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. I. 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. 2a 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 Ja 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 da 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 va 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 ba 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 ia 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. Sa 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 Ya 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 lOa 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 l2a 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 l3a 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 l7a 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 2a 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 Ph 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 Oa 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 feder [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0689%3A01. Public record. Not legal advice.