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September 22, 1965

UNITED STATES of America ex rel. John WAKELEY

The opinion of the court was delivered by: LORD

 This is an equity action in which plaintiff, a state prisoner, seeks to enjoin certain prison officials from denying him access to legal materials and facilities. The action is brought under the Civil Rights Act, 42 U.S.C.A. § 1983 and under 28 U.S.C.A. § 1343 which collectively confer jurisdiction on the District Courts to redress deprivations of civil rights.

 Plaintiff is presently serving a sentence of from ten to twenty years under a 1963 second degree murder conviction. He asserts that he was unlawfully convicted, but that he has been prevented from effectively contesting it by the officials at Graterford, a Pennsylvania State Correctional Institution, where he is confined. Specifically, he complains that he has been denied the use of a law library and that he has been prevented from acquiring legal materials - including books, newspapers, and other publications - from sources other than those enumerated in the margin. *fn1" Plaintiff further asserts that his communication even with these enumerated sources has, on occasion, been thwarted.

 Before examining the merits of plaintiff's contentions, however, this Court must deal with another matter raised in the complaint and answer. Plaintiff states that he contacted the Assistant Superintendent and that he conferred with another prison official before filing his complaint. The defendants assert that prison regulations prescribe a more detailed procedure than this. *fn2" Thus at the outset we must determine whether it was necessary for plaintiff to first exhaust this procedure.

 I. Exhaustion of Administrative Remedies

 The Supreme Court of the United States has consistently recognized and adhered to the rule that administrative proceedings must be exhausted prior to resort to judicial relief. This is especially so with regard to administrative remedies available to the states. *fn3" However, with regard to questions of civil rights it has long been established that the ordinary requirements of exhaustion do not apply. In Lane v. Wilson, 307 U.S. 268, 274, 59 S. Ct. 872, 875, 83 L. Ed. 1281 (1939), a landmark civil rights case, the United States Supreme Court, through Mr. Justice Frankfurter, said:

To vindicate his present grievance the plaintiff did not have to pursue whatever remedy may have been open to him in the state courts. Normally, the state legislative process, sometimes exercised through administrative powers conferred on state courts, must be completed before resort to the federal courts can be had. * * * But the state procedure open for one in the plaintiff's situation * * * has all the indicia of a conventional judicial proceeding * * *. Barring only exceptional circumstances, * * * resort to a federal court may be had without first exhausting the judicial remedies of state courts.

 Moreover, the Supreme Court recently went one step further and repudiated the requirement of exhaustion of even administrative remedies in certain actions brought under the Civil Rights Act. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). There the petitioners, negro students in an Illinois public school, brought suit under the Act in protest to alleged discriminatory school enrollment practices. The District Court dismissed the complaint on the ground that petitioners had failed first to exhaust their administrative remedies, *fn4" and the Court of Appeals affirmed. McNeese v. Board of Education, Etc., 305 F.2d 783 (7th Cir. 1962). In reversing, the Supreme Court reviewed in part the purposes of the Act, and, speaking through Mr. Justice Douglas, said: "We would defeat those purposes 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. 373 U.S. 672, 83 S. Ct. 1436).

 Thus at least with respect to some actions under the Civil Rights Act, it is clear that exhaustion of even administrative remedies is now a requirement of the past. In the light of these decisions, however, this Court is now confronted with the task of determining whether this principle of non-exhaustion was intended to spill over into every action brought under the Civil Rights Act.

 After careful deliberation, this Court is convinced that it was not intended, and indeed could not have been contemplated, that the requirement be eliminated in all Civil Rights cases. Whatever the conclusion to which academic logic might lead, we are guided not by logic but by experience. *fn5" To waive the requirement of exhaustion of administrative remedies in this type of case would fly in the face of the experience of the law. Thus while a purely logical parallel might be drawn between the present case and the Illinois public school case, experience compels the conclusion that waiver of administrative exhaustion in the matter at hand would go far beyond the intendment of the United States Supreme Court. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963).

 This is not to say that the United States Supreme Court was unjustified in relieving the litigants of part of their heavy burdens in the two great civil rights cases heretofore discussed, the McNeese Case (supra), and the earlier Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939). For as applicable to those cases, and too many others like them, the doctrine of exhaustion was being deformed to subject constitutional guarantees to the mercy of an adverse social climate. The salutary doctrine was being used to thwart justice, defeating its function as a valuable incident to the American judicial system. *fn6"

 The amelioration exemplified in the two Supreme Court cases was not a new approach to the protection of minority groups. The Civil Rights Act itself, and especially the section under which the present action is brought, was intended primarily to overcome sectional reluctance to uphold the rights of negroes. *fn7" It was designed, and has been used, "* * * to wipe out every form of racial distinction that had any form of legal support." *fn8" As recently as 1961 the Supreme Court had occasion to refer to the circumstances which led to its enactment. Speaking for the Court, Mr. Justice Douglas said:

It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Monroe v. Pape, 365 U.S. 167, 180, 81 S. Ct. 473, 480, 5 L. Ed. 2d 492 (1961).

 It has not been the experience of this Court that complaints by inmates of state correctional institutions have been frustrated by any ...

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