Rivers v. Royster, 10351.

• Decision Date: 25 April 1966
• Docket Number: No. 10351.,10351.
• Citation: 360 F.2d 592
• Parties: Arthur L. RIVERS, Appellant, v. M. L. ROYSTER, Assistant Superintendent Virginia State Farm, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

360 F.2d 592 (1966)

Arthur L. RIVERS, Appellant, v. M. L. ROYSTER, Assistant Superintendent Virginia State Farm, Appellee.

No. 10351.

United States Court of Appeals Fourth Circuit.

Argued February 10, 1966.

Decided April 25, 1966.

Collins Denny, III, Richmond, Va. (Court-assigned counsel) Denny, Valentine & Davenport, Richmond, Va., on brief, for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, and James Parker Jones, Asst. Atty. Gen. of Virginia, on brief), for appellee.

Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and HUTCHESON, District Judge.

J. SPENCER BELL, Circuit Judge:

The petitioner appeals from an order of the district court dismissing his action for equitable relief without a plenary hearing on the ground that it sets forth no justiciable issue because it deals with the internal administration of the state prison system where the petitioner is lawfully confined. The complaint alleges that the prison superintendent has denied the petitioner the right to receive a nonsubversive Negro newspaper, the Chicago Defender, because he is a Negro, while permitting white inmates to receive "white" newspapers. The complaint not only alleges a general denial of Negro newspapers to Negro prisoners, it also alleges that on February 15, 1965, an issue of the Chicago Defender sent to the petitioner was denied him not as an act of discipline for misconduct but because it was a Negro newspaper.

We think that the petitioner's constitutional rights have been abridged in the denial to him of his equal protection rights under the Fourteenth Amendment since he is denied a right as a Negro which is being granted to white prisoners.

The action is based upon the Civil Rights Act of 1871, 42 U.S.C. § 1983,¹ which proscribes the denial of equal rights to all United States citizens under color of any statute. Jurisdiction is conceded under 28 U.S.C. § 1343. Virginia law permits a prisoner "to have and read such newspapers and magazines as he may subscribe for or may be given to him or sent him and not deemed by the prison authorities to be subversive of discipline." Virginia Code Ann. § 53-34 (Repl.Vol.1958). The truth of the petitioner's allegations must be conceded for the purposes of this appeal. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L. Ed.2d 1030 (1964); Jordan v. Hutcheson, 323 F.2d 597 (4 Cir. 1963).

His right to receive and read nonsubversive newspapers while in prison is specifically granted by Virginia law. The alleged discrimination involves a constitutional right which overrides the court's reluctance to interfere with prison administration and discipline. Childs v. Pegelow, 321 F.2d 487 (4 Cir. 1963); United States ex rel. Cleggett v. Pate, 229 F.Supp. 818 (D.C.N.D. Ill. 1964); Sewell v. Pegelow, 291 F.2d 196 (4 Cir. 1961); Pierce v. LaValle, 293 F. 2d 233 (2 Cir. 1961).

The petitioner's rights are federal constitutional rights based upon the Fourteenth Amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983; therefore, no exhaustion of state remedies is required.

"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." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961).

Here, where the terms of the state law are clear, there is no basis for abstention to require the exhaustion of either...