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May 7, 1975

Jeffrey CLARK, Plaintiff,
Leroy ZIMMERMAN, District Attorney of Dauphin County, et al., Defendants

Sheridan, Chief Judge.

The opinion of the court was delivered by: SHERIDAN

Plaintiff, Jeffrey Clark, who is presently incarcerated at the Dauphin County Prison awaiting trial on state charges of aggravated assault, robbery, and conspiracy to deliver a controlled substance, has filed this civil rights action pursuant to 42 U.S.C.A. § 1983 against Leroy Zimmerman, the District Attorney of Dauphin County, William Woods, a state district magistrate in Harrisburg, and Norvil Ulrich, a Harrisburg police officer. Plaintiff seeks a declaratory judgment pursuant to 28 U.S.C.A. §§ 2201, 2202 that the defendants' actions violate his constitutional rights, a preliminary and permanent injunction enjoining his prosecution on the aforementioned state charges, and compensatory and punitive damages against the defendants. Federal jurisdiction is properly predicated on 28 U.S.C.A. § 1343.

 Specifically, plaintiff alleges that defendant Ulrich, who arrested plaintiff pursuant to a John Doe warrant, lacked probable cause to make the arrest and hence his subsequent detention and interrogation at the police department violated his constitutional rights. Plaintiff further contends that the actions of magistrate Woods and district attorney Zimmerman at the preliminary hearing violate his constitutional rights because the magistrate arbitrarily and unfairly decided, due to the undue influence of the district attorney, that defendant be held for grand jury action on false criminal charges and set excessive bail to prevent his pre-trial release, all without a proper evidentiary showing by the district attorney. In essence plaintiff avers that all three defendants have conspired to detain and try him for crimes he did not commit and have acted in furtherance of this end in a manner which violates his constitutional rights.

 In Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, and its companion cases, Samuels v. Mackell, 1971, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701, the Supreme Court held that a federal court may not interfere in the ongoing state criminal process absent a showing of prosecutorial bad faith or harassment, or other "extraordinary circumstances." The Court based its decision on the interwoven concepts of equitable restraint, federalism, and comity. O'Shea v. Littleton, 1974, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674; Bykofsky v. Borough of Middletown, M.D.Pa., 389 F. Supp. 836 (decided February 18, 1975). The Younger doctrine prohibits the injunctive relief and Samuels v. Mackell, supra, the declaratory judgment, which plaintiff seeks with respect to his prosecution on the criminal charges. Kugler v. Helfant, 1975, 421 U.S. 117, 95 S. Ct. 1524, 44 L. Ed. 2d 15.

 To the extent plaintiff is challenging his present pre-trial custody, on the ground that the bail is excessive or on any other ground, the court should not adjudicate the merits of these claims because plaintiff has failed to exhaust state remedies. State prisoners must exhaust state remedies before seeking federal habeas corpus relief by affording the state courts, including the state appellate courts, the opportunity to rule on their contentions. 28 U.S.C.A. § 2254; Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439; Braden v. 30th Judicial Circuit Court of Kentucky, 1973, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443; Geisler v. Walters, 3 Cir., 510 F.2d 887 (filed February 5, 1975); Grant v. Hogan, 3 Cir. 1974, 505 F.2d 1220. While the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, it does require that they have had the federal habeas petitioner's contentions presented to them. Geisler v. Walters, supra; Grant v. Hogan, supra. When a state prisoner challenges the fact or duration of his imprisonment and seeks a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439. In short, a state prisoner cannot use the Civil Rights Act to circumvent the federal habeas corpus exhaustion requirement. Preiser v. Rodriguez, supra; see Moore v. DeYoung, 3 Cir., 515 F.2d 437 (filed April 8, 1975).

 28 U.S.C.A. § 2254(b), (c) states:

"(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

 28 U.S.C.A. § 2243 provides in pertinent part:

"A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." (Emphasis supplied.)

 Under the above provisions a district court has the power to dismiss sua sponte a state prisoner's habeas corpus petition when it is clear that state remedies have not been exhausted. Allen v. Perini, 6 Cir. 1970, 424 F.2d 134, cert. denied, 1970, 400 U.S. 906, 91 S. Ct. 147, 27 L. Ed. 2d 143. As stated by the court in Allen v. Perini, 424 F.2d at 141:

"Under this provision [ 28 U.S.C.A. § 2243] the District Court has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face. No return is necessary when the petition is frivolous, or obviously lacking in merit, or where, as here, the necessary facts can be determined from the petition itself without need for consideration of a return. Higgins v. Steele, 195 F.2d 366 (8th Cir.); Farley v. Skeen, 113 F. Supp. 736 (D.C.W.Va.), appeal dismissed, 208 F.2d 791 (4th Cir.). Such procedure is most peculiarly applicable where, as here, the District Court can take judicial notice that the responding office of the State Attorney General is understaffed and overloaded with work."

 Thus, to the extent plaintiff seeks release from custody and challenges the amount of bail set as excessive, these claims will be dismissed for failure to exhaust state remedies.

 There remains the issue of whether plaintiff presently can litigate his damage claims. While the general rule in civil rights actions is that exhaustion of state remedies is not a prerequisite to their prosecution, there are exceptions to this rule. For example, in McCray v. Burrell, D.Md.1973, 367 F. Supp. 1191, the court held that prior to bringing a civil rights suit for injunctive relief or monetary damages, a state prisoner must exhaust any adequate state administrative remedy. Accord : Washington v. Boslow, D.Md.1974, 375 F. Supp. 1298; Marnin v. Pinto, 3 Cir. 1972, 463 F.2d 583; cf. Becker v. Oswald, M.D.Pa.1973, 360 F. Supp. 1131; Whitner v. Davis, 9 Cir. 1969, 410 F.2d 24; Toney v. Reagan, 9 Cir. 1972, 467 F.2d 953; Stevenson v. Board of Education of Wheeler County, Georgia, 5 Cir. 1970, 426 F.2d 1154; But see Palmigiano v. Mullen, 1 Cir. 1974, 491 F.2d 978 (a prisoner need not exhaust state judicial remedies in order to prosecute a civil rights action under 42 U.S.C.A. § 1983); Jones v. ...

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