Kochie v. Norton, Civ. A. No. B-469

• Decision Date: 01 June 1972
• Docket Number: Civ. A. No. B-469,B-515.
• Citation: 343 F. Supp. 956
• Court: U.S. District Court — District of Connecticut
• Parties: Lawrence KOCHIE v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut. Paul WHITE v. BUREAU OF PRISONS, N.A.R.A. Staff, and Mel Klein.

343 F. Supp. 956

Lawrence KOCHIE v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

Paul WHITE v. BUREAU OF PRISONS, N.A.R.A. Staff, and Mel Klein.

Civ. A. Nos. B-469, B-515.

United States District Court, D. Connecticut.

June 1, 1972.

Lawrence Kochie, and Paul White, pro se.

Barry J. Cutler, Asst. U. S. Atty., New Haven, Conn., for defendants.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

Two inmates at the Federal Correctional Institution at Danbury have filed petitions in unrelated cases, both of which present a basic issue concerning the proper role of a Federal District Court in considering prisoner complaints about the internal administration of a prison. Neither petition challenges the validity of the conviction for which petitioners are incarcerated, nor is there any complaint concerning the computation of the sentence to be served. Petitioner White complains that he was arbitrarily denied the opportunity to work in Prison Industries. Petitioner Kochie complains that he has not been allowed to wear inside the prison medically prescribed shoes which he is permitted to wear when outside the prison on work release.¹

In recent years courts have been flooded with prisoner complaints about the internal administration of a prison. The complaints range from the totally frivolous to those which raise substantial constitutional questions. The task for courts is to fashion some procedure which will insure that the substantial claims receive careful consideration while the insubstantial claims are summarily rejected. Such a procedure should also insure that prison authorities themselves give appropriate consideration to all complaints concerning prison administration with court intervention reserved only for those extraordinary situations where a substantial right of the prisoner is fairly in issue.

A key element of such a procedure must be the doctrine of exhaustion of administrative remedies. Application of this doctrine to this area of complaints has obvious advantages. It insures that those officials charged with the administrative responsibility have a fair chance to know of the grievance and act to correct it if correction is warranted. It also insures that when courts are asked to intervene, they have presented both the prisoner's complaint and a written response from the prison officials. Under current practice in a large portion of cases the courts must initiate requests for responsive papers from the prison authorities. It would certainly be more expeditious to have such papers available when the petition is first presented. Thus in many cases the issue is simply whether administrative remedies will be exhausted by the prisoner before he files his papers or by the Court afterwards.

Some might think exhaustion of administrative remedies need not be relied upon in cases of the sort presented by these two petitions because the complaints could be dismissed for failure to state a claim on which relief can be granted. But that course, while often employed by courts, risks losing the needle of a meritorious complaint in a haystack of frivolous ones. Even these complaints might be meritorious if in fact there was a completely arbitrary refusal to permit White to work in Prison Industries, or if in fact there was a deliberate and unjustified refusal to permit Kochie to wear medically required shoes. As with the "trip to Baghdad," Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F. 2d 719, 722 (1961), there are many prison opportunities the government need not provide at all, but at least as to some significant ones, it cannot, consistent with due process, act arbitrarily to deny eligible prisoners an available opportunity. Prisoners have not lost the right to elemental fairness from their government, even though the necessities of prison management obviously require recognition of some unreviewable administrative discretion.

Another reason to invoke exhaustion of administrative remedies rather than to dismiss the claim as submitted is that many petitions fail through poor drafting to alert courts fully to whatever merit they may contain. Requiring initial complaint to prison administrators will produce written responses that can be expected to highlight the real issue, if there is one, as well as demonstrate the absence of such an issue. A written response to petitioner White's complaint, for example, may well show that the decision to deny him access to Prison Industries was not arbitrary, and no more need be shown.

Despite the common-sense appeal of requiring some elementary exhaustion of administrative remedies, a series of recent Supreme Court decisions contains language suggesting that the doctrine of exhausting administrative remedies is not to be invoked to defeat the vindication of constitutional rights in a Federal District Court. It is not entirely clear, however, whether the sweep of those decisions is really intended to eliminate even elementary exhaustion requirements in the context of prisoner complaints. A review of the cases indicates that the precise holdings have never dispensed with a requirement that prison officials be given the initial opportunity to consider prisoner complaints which are within their full competence to correct.

Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), decided that a cause of action for damages for denial of civil rights could be maintained in a federal court pursuant to 42 U.S.C. § 1983 notwithstanding the availability of a similar remedy in a state court. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), decided that § 1983 actions could be maintained despite the plaintiffs' failure to pursue a state remedy that required both court and administrative action. The Court's opinion pointed out that the purposes of § 1983 would be defeated "if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court." Id. at 672, 83 S.Ct. at 1436. When the Court turned to the administrative aspect of the state remedy, it refused to require resort to the remedy because of its inadequacy in the circumstances. Significantly the Court observed that the pertinent administrative official, the Superintendent of Public Instruction, "has no power to order corrective action." Id. at 675, 83 S.Ct. at 1437. He could only take steps leading to a remedy in a state court action, a requirement Monroe v. Pape, supra, had already dispensed with. The only authority the Superintendent could exercise on his own, withholding of state aid, was deemed to be too "tenuous" a protection for constitutional rights to require prior resort to state proceedings. Surely this decision did not dispense with the requirement of pursuing state administrative remedies which are available to correct completely the alleged grievance.

Then came 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 held that claimants to welfare benefits could not be denied a federal court hearing on their § 1983 complaint for failure to exhaust state administrative remedies. Reliance was placed on Monroe and McNeese. Of the latter, the Court said, "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 administrative remedy,' id., 373 U.S. at 671, 83 S.Ct. at 1435." (brackets original). The page reference cites that portion of McNeese in which the Court had rejected a requirement of pursuing state court remedies. Even if the interpolation of the word "administrative" was warranted, it could at most refer to the type of administrative remedy rejected in the later 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. In Damico plaintiffs challenged a state regulation as unconstitutional, a grievance normally beyond the authority of administrators to correct.

The Court then took the word "administrative" out of its brackets in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), where a state prisoner, suing under § 1983, had been denied relief for failure to exhaust only administrative remedies. The Supreme Court reversed, holding that in the circumstances of that case requiring exhaustion of administrative remedies would be "to demand a futile act." Id. at 640, 88 S.Ct. 2120. But the per curiam opinion then added this sentence:

"In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473, 482, 5 L. Ed.2d 492; McNeese v. Board of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 1435; and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647."

That this dictum did not refer only to futile administrative remedies was suggested by still another dictum in another per curiam decision, when the Court in Wilwording v. Swenson, 404 U.S. 249, 252, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971), said of Houghton:

"Although the probable futility of such administrative appeals was noted, we held that in `any event, resort to these remedies is unnecessary.'"

Houghton reversed a lower court decision that had required a state prisoner seeking relief under § 1983 to pursue state court remedies. The lower court opinion did make a passing reference to "the state structure of government from the governor on down," but the point of the decision had been that state courts, rather than state administrators, should review such complaints before federal court adjudication. Wilwording v. Swenson, 439 F.2d 1331, 1336 (8th Cir. 1971).

Thus while some of the language of the decisions in Damico, Houghton and Wilwording seems to...