329, 3 L. Ed. 2d 327 (1959). Morris argues that although he is in custody he is nevertheless a free man with regard to the crimes for which he has not yet been charged. When, therefore, the police require him to move from his cell to the Admissions Building where the lineup is to be conducted he will, in effect, have been taken into custody, i.e. 'arrested' without probable cause and such 'arrest' violates due process.
The fallacy in that argument is that Morris, being already in lawful custody, is not free. His movements are already subject to the control, for all proper institutional purposes, of those to whose custody he has been committed until trial. He has not the freedom of action which an arrest, i.e. a taking into custody, is designed to restrict. However free in spirit Morris may be with regard to the charges on which he has not been held, he is not free in body. Since arrest and custody are matters affecting the body, and since he is already in custody, requiring him to move about within the place of confinement cannot constitute an 'arrest.'
There is yet another reason compelling the same conclusion. The due process argument has as a necessary ingredient compulsory movement from one place to another within the institution. Concededly there would be no due process argument if the viewing were held wherever Morris happended to be at the time. The Superintendent of the Center has determined, as a matter of good prison administration, that it is unsafe to escort outsiders through the institution. To better insure the safety of the visitors and to preserve security and order within the institution, he has set aside a room wherein to conduct such activity. That is a matter involving the exercise of judgment in the administration of a state institution and since, as pointed out above, the procedure used violates no basic constitutional right,
it is not the province of this court, under the guise of Civil Rights, to inquire into a matter of administration and to determine whether the procedure adopted best serves the interests of good prison administration. Gurczynski v. Yeager, 339 F.2d 884 (3d Cir. 1964); United States ex rel. Wagner v. Ragen, 213 F.2d 294 (7th Cir. 1954), appeal dismissed, Wagner v. Stratton, 350 U.S. 926, 76 S. Ct. 320, 100 L. Ed. 810 (1956); United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (7th Cir. 1953); Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), cert. denied, 368 U.S. 862, 82 S. Ct. 105, 7 L. Ed. 2d 59 (1961).
In this proceeding Morris has chosen to attack the consequences of his confinement rather than the confinement itself. He has conceded that his confinement for default of bail is lawful. By that concession Morris has given up whatever claim he might have had to a charge of discrimination based on his poverty, for the root cause of his complaint really is that, because of his indigency, he has been denied liberty on bail pending trial.
This court has jurisdiction of the parties and of the subject matter of the complaint under the Civil Rights Act of 1871 ( Baker v. Carr, 369 U.S. 186, 198-204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)) but plaintiff has not established that defendants have denied or will deny him the equal protection of the laws, or due process of law, or that defendants have violated or will violate any right guaranteed him by the Constitution and laws. Plaintiff is, therefore, not entitled to injunctive relief and his request for a permanent injunction enjoining the defendants from placing him in a lineup at the Philadelphia Detention Center will be denied. Defendants are entitled to the entry of judgment in their favor.
Defendants will be relieved of their voluntary undertaking not to proceed against plaintiff pending the outcome of these proceedings, but upon application by plaintiff, a temporary stay will be granted pending the filing of an appeal should plaintiff desire so to do. Leave will be granted to plaintiff to proceed in forma pauperis for the purpose of filing the appeal, after which any further stay of proceedings or leave to proceed in forma pauperis must be sought from the Court of Appeals.
And now, this 24th day of March, 1965, it is ordered that the motion of defendants to dismiss the within complaint be and it is hereby denied; and it is further ordered that judgment be entered in favor of the defendants.