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UNITED STATES EX REL. MCCODE v. PENNSYLVANIA

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


October 13, 1965

UNITED STATES of America ex rel. Thomas McCODE
v.
COMMONWEALTH OF PENNSYLVANIA

The opinion of the court was delivered by: GRIM

GRIM, District Judge.

 Relator, a state prisoner, alleges in the complaint that the prison authorities have denied to him the constitutional right to freedom of religion in that he is not allowed "to study and practice the World's Great Religions, namely Hinduism, Yogism, Buddhism, Confucianism, and Ontology, etc. * * *" He asks this court to restrain the prison authorities from this alleged interference with his religious practice and to permit him "to purchase books on the above mentioned Religions."

 Although relator incorrectly assumes jurisdiction to rest in this court under 18 U.S.C.A. § 241 and § 242 which are criminal statutes and thus inapplicable to this civil habeas corpus action, it would appear that the court has jurisdiction over this controversy under 28 U.S.C.A. § 1343 *fn1" and 42 U.S.C.A. § 1983. *fn2" See Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961).

 However, the court will not proceed to consider the merits of this case since relator has failed to demonstrate or even allege that he has exhausted the state administrative channels available to him for consideration and possible remedy of his grievances. *fn3"

 Such exhaustion is required not only as an exercise of federal judicial self-restraint and respect toward state processes, but as an affirmative recognition of the state's primary responsibility in the internal management of its penal institutions and the maintenance of prison discipline. Until such remedies have been exhausted or relator has made a satisfactory showing that he is unable to do so, no federal judicial forum is available to relator, Gaito v. Prasse, 312 F.2d 169 (3d Cir. 1963); Green v. United States, 283 F.2d 687 (3d Cir. 1960); United States ex rel. Johnson v. Commonwealth of Pennsylvania, 247 F. Supp. 365 (E.D.Pa.1964); United States ex rel. Holland v. Prasse, 241 F. Supp. 566 (E.D.Pa.1964); United States ex rel. Wakeley v. Commonwealth of Pennsylvania et al., 247 F. Supp. 7 (E.D.Pa.1965).

 ORDER

 And now, this 13th day of October, 1965, the complaint of Thomas McCode is denied without prejudice to his right to reassert his contentions when his administrative remedies have been exhausted.


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