McLaughlin, Hastie and Forman, Circuit Judges. Gerald McLaughlin, Circuit Judge, dissenting.
Appellant, James X. C. Long, a Black Muslim inmate of the United States Penitentiary at Lewisburg, Pennsylvania, brought suit invoking, among other grounds, jurisdiction under the Civil Rights Act, 42 U.S.C. § 1983 seeking to enjoin the Prison Warden from unconstitutionally interfering with his right of religious freedom and from discriminating against him because of his religious beliefs. The United States District Court for the Middle District of Pennsylvania, accepting the suit as a civil rights action under 42 U.S.C. § 1983, dismissed the complaint without a hearing stating that all of the issues raised in the complaint had been decided previously in its case, Desmond v. Blackwell.*fn1 On appeal this court affirmed the judgment of the District Court.*fn2 On application to the United States Supreme Court it granted leave to proceed in forma pauperis and certiorari, ordering the judgment vacated and the case remanded for further proceedings.*fn3 Counsel was then appointed and the appeal proceeded here under No. 15981.
Meanwhile appellant had brought another action seeking a writ of habeas corpus in the same District Court against the Attorney General of the United States*fn4 and the Warden of Lewisburg Penitentiary, again alleging unconstitutional interference with religious freedom and discrimination because of religious beliefs. Several other Black Muslim inmates were granted leave to join as parties plaintiff. The District Court, treating the action as one in the nature of mandamus, under 28 U.S.C. § 1361, granted summary judgment for the defendants.*fn5 An appeal was also taken from this judgment under No. 16159. By order of this court the appeals were consolidated and it is in this posture that they are now here considered.
Under No. 16159, as heretofore indicated, appellants sought a writ of habeas corpus. Traditionally, the writ of habeas corpus has functioned to test the legality of confinement rather than the manner in which the detention is administered.*fn6 Thus habeas corpus is not a proper proceeding to investigate complaints by prisoners of mistreatment since such complaints do not attack the legality of the confinement.*fn7 The District Court, apparently recognizing these limitations of its habeas corpus jurisdiction, treated this complaint as one in the nature of mandamus with jurisdiction attaching by virtue of 28 U.S.C. § 1361.*fn8 In so construing this complaint, and thereby giving a proper remedy to appellants, untutored in legal niceties, the District Court properly exercised its discretion.*fn9
In considering appellant's suit at No. 15981 under 42 U.S.C. § 1983,*fn10 the District Court misconceived the remedy. Appellant, a federal prisoner, sought to enjoin the allegedly discriminatory administration of a United States Penitentiary by a federal official. Since section 1983 grants a cause of action against those acting under color of state law and not those acting under color of federal law, relief could not be predicated on this section.*fn11 Jurisdiction should be regarded as invoked again under section 1361.
Since these homespun complaints by prison inmates lack the technical clarity of normal pleadings, this court has, of course, given them a reasonably liberal reading. Although the specific allegations of religious discrimination are not always repeated in each complaint, for purposes of this appeal, the court has considered the two complaints as if they were one.
Appellants all profess to be members of the Black Muslim movement, an alleged sect of the religion of Islam, founded in 1930 and headed by one, Elijah Muhammad.*fn12 The Black Muslims claim many attributes commonly associated with the major religions and several courts have recognized the movement as a religion.*fn13 However, the sect cannot be classified as purely religious in nature.*fn14 Basic to the Black Muslim faith is the inexorable hatred of all white people.*fn15 Also basic to the doctrine of the Black Muslims is belief in the racial superiority of the black race, the demand for racial segregation of the white and black races, and the belief that the United States owes the Black Muslims a state of their own.*fn16 Appellees, however, do not here contest the legitimacy of treating the Black Muslim beliefs as a religion, and therefore, it will be assumed the appellants are entitled to avail themselves of the protections afforded by the First Amendment.
Drawing on this assumption it follows that the members of the Black Muslim faith have an absolute right to embrace their religious beliefs, and to be free from discrimination because of their adherence to those beliefs.*fn17 While it is clear that these rights are not lost to those who are committed to prison, it is also clear that within the prison society as well as without, the practice of religious beliefs is subject to reasonable regulations, necessary for the protection and welfare of the community involved.*fn18
The power of promulgating regulations necessary for the safety of the prison population and the public as well as for the maintenance and proper functioning of the institution is vested in correction officials with expertise in the field and not in the courts. There can be no question that they must be granted wide discretion in the exercise of such authority. Where, however, the charge is made that the regulations imposed by prison authorities restricting religious practices fall more harshly on adherents of one faith than another, the courts will scrutinize the reasonableness of such regulations.*fn19
Appellants here contended that they are being discriminated against in that they are not provided with a fair proportionate share of government funds and facilities available for religious purposes within the prison. On this appeal they specifically charge that this discrimination is manifested in (a) the restriction on the Black Muslims' use of the prison chapel and (b) the refusal (1) to provide an adequate and acceptable version of their holy book, the Quran; (2) to provide them with religious medals; (3) to enter into contractual arrangements with Black Muslim ministers to teach them and attend their religious needs and (4) to make special dietary provisions for them.
In answering, the appellees, in case No. 15981, simply relied on the disposition by the District Court in Desmond.*fn20 And in case No. 16159, the appellees denied any discriminatory treatment with regard to the use of the prison chapel, claiming that it was designated for the religious services of those sects such as the Catholics and Protestants which had large followings, while smaller sects such as that of the appellants were permitted special quarters because of limited time, space and supervision considerations.
In reply to the refusal to enter into contractual arrangements with Black Musim ministers the appellees, in case No. 16159, averred that no request had been made for the appointment of a Black Muslim chaplain and while provision is made for Catholic and Protestant chaplains as part of the staff of the institution, the appointment of chaplains for each of the numerous other religious sects and denominations ...