The opinion of the court was delivered by: FOLLMER
Edward Fallis, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has submitted a document entitled "Writ of Habeas Corpus," to this Court, and requests leave to proceed in forma pauperis.
The first question that must be faced is whether this is a petition for writ of habeas corpus, and if not, under what theory, if any, can Fallis present his claim. It has been the opinion of this Court that claims such as this one, relating to the administration of prisons, are not within the scope of relief intended in a habeas corpus proceeding. See Lowe v. Hiatt, 77 F. Supp. 303, 305 (M.D.Pa.1948). "It is not the function of habeas corpus to direct prison officials in the treatment and care of inmates by mandatory injunction." United States ex rel. Knight v. Ragen, 337 F.2d 425, 426 (7th Cir. 1964), cert. denied. 380 U.S. 985, 85 S. Ct. 1355, 14 L. Ed. 2d 277 (1965).
However, this does not leave a federal prisoner completely without recourse. 28 U.S.C. § 1361 provides that:
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
Section 1361 has been used by the Fifth Circuit and this Court in allowing actions by Black Muslims who claim their right to worship has been impaired in federal penitentiaries and who seek affirmative relief. Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966); Long v. Katzenbach, 258 F. Supp. 89 (M.D.Pa.1966). Thus this will be considered as a request to commence an action in forma pauperis under 28 U.S.C. § 1361, since Fallis claims that he is entitled to decide whether he will work or not and the job at which he should be assigned.
It should be noted that this is the third action by Fallis in this court. The first action alleged that his religious freedom had been abridged. That petition was denied. Fallis v. Blackwell, Civil Action No. 8745 (M.D.Pa. Decided March 2, 1965, unreported). The second action, complaining of his medical treatment, was also denied. Fallis v. United States Penitentiary at Lewisburg, Pa., et al., Habeas Corpus No. 677 (M.D.Pa. Decided August 23, 1965, unreported), leave to appeal in forma pauperis denied, C.A.Misc. Record No. 241 (3d Cir. September 23, 1965, unreported).
Fallis is obviously seeking special privileges once again. He does not like to be regimented and wants this Court to inject itself into the administration of the Penitentiary.
In Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948), the Supreme Court stated: "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Although this does not mean that the prison authorities have unbridled discretion, it does mean that prisoners will necessarily be deprived of certain privileges. See Note 72 Yale L.J. 506 (1963). In providing for the custody, maintenance, discipline and rehabilitation of prisoners there are necessary and expected deprivations. This is a prison, not a resort hotel.
This is not an extreme case which warrants interference by the Court, Lee v. Tahash, 352 F.2d 970, 971 (8th Cir. 1965), but appears to be nothing more than an attempt to harass the officials who are responsible for his custody and the maintenance of the institution. In Heft v. Parker, 258 F. Supp. 507, 508 (M.D.Pa.1966), this Court quoted from the opinion of Carey v. Settle, 351 F.2d 483, 484-485 (8th Cir. 1965):
"'Prisoners will not lightly be permitted to use 28 U.S.C.A. § 1915(a) to institute suits for damages or injunction against the officials in whose custody they have been placed for confinement. Taylor v. Steele, 8 Cir., 191 F.2d 852, 853. Such actions are too frequently mere outlets for general discontent in having to undergo penal restraint or of personal satisfaction in attempting to harass prison officials. A court therefore should be satisfied that there exists substantiality as to such a claim, of justiciable basis and of impressing reality before it permits a prisoner to maintain an action therefor on in-forma-pauperis privilege. * * *'"
In the document filed by Fallis, (pp. 2, 3) he quotes from a memo, apparently sent to him by Mr. Rauch, the Associate Warden, under date of January 9, 1967. The memo clearly shows that the authorities at the United States Penitentiary at ...