APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA D.C. Civil No. 75-1192.
Adams, Van Dusen and Hunter, Circuit Judges. Van Dusen, Circuit Judge, concurring.
This appeal raises the question whether a state prisoner must exhaust state administrative remedies before bringing an action under 42 U.S.C. § 1983 in federal court for deprivation of his constitutional rights. The District Court for the Middle District of Pennsylvania dismissed the prisoner's pro se complaint under F.R.Civ.P. 12(b) for failure to exhaust such remedies. Since the decisions of the Supreme Court indicate that state prisoners need not exhaust administrative remedies, we reverse and remand the case for further proceedings.
This case is the second civil rights action brought by Wilbert Ricketts, Sr., against officials of the State Correctional Institution at Dallas, Pennsylvania (S.C.I.D.). In the first action, Ricketts and Roy Williams attacked the constitutionality of the rules by which the prison controls reading matter reaching inmates, Bureau of Corrections Administrative Directive No. 814 (BC-ADM 814), 37 Pa.Code §§ 95.71 et seq. On July 14, 1975 the District Court for the Middle District of Pennsylvania dismissed the pro se complaint on defendant's motion for failure to exhaust the administrative remedies, including appeal, available under the directive.*fn1
In December 1975 Ricketts filed a second pro se complaint in the District Court for the Eastern District of Pennsylvania. The matter was later transferred to the Middle District pursuant to 42 U.S.C. § 1404 on plaintiff's motion.
Since the district court dismissed the complaint without taking evidence, F.R.Civ.P. 12(b), we must assume the facts alleged in the complaint to be true. See Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Radovich v. National Football League, 352 U.S. 445, 448, 1 L. Ed. 2d 456, 77 S. Ct. 390 (1957).
The second complaint charged that defendants James Lightcap, State Agent in S.C.I.D.'s mailroom, Glen Jeffes, superintendent of the prison, and the staffs of the institution and of the state Bureau of Corrections violated rights guaranteed Ricketts by the first and fourteenth amendments. Ricketts alleged that defendants had withheld from him a book which he had ordered and paid for, that defendant Lightcap, without authority, signed Ricketts' name to the insurance receipt for the book when it arrived at S.C.I.D., and that other mail had later been withheld from him. We do not know what, if any, administrative remedies Ricketts attempted to use, since the district court dismissed the complaint. The complaint does indicate that he approached one member of the committee responsible for reviewing incoming publications and was told that the book he ordered had not been declared obscene by the committee. There is no allegation that Ricketts appealed to the prison superintendent or to other state authorities. The complaint seeks an injunction, a declaratory relief, and compensatory and punitive damages.
The defendants moved to dismiss the complaint on the grounds that Ricketts was collaterally estopped by the decision in the first case. They characterized the second complaint as essentially an attack on BC-ADM 814, as was the first action. Ricketts filed an answer to the motion addressing the collateral estoppel issue.
In a memorandum and order on May 5, 1976, Judge Nealon held that the plaintiff was not collaterally estopped, since the second complaint attacked the manner in which the prison's policy was implemented, not the Directive itself. Defendants do not appeal this decision.
Nevertheless, the district court granted the defendants motion to dismiss. Sua sponte, the court held that the complaint showed that Ricketts had not exhausted administrative remedies*fn2 and that this failure was fatal to the section 1983 action.
Plaintiff appeals on three grounds. First, he claims that the district court should have given him notice of and an opportunity to respond specifically to the issue of exhaustion. Second, he argues that the record does not support the judge's finding that he failed to exhaust administrative remedies. Third, he takes the position that exhaustion of administrative remedies is not required in actions under section 1983.
Since our reading of recent Supreme Court cases leads us to conclude that Ricketts need not exhaust his administrative remedies before bringing an action under section 1983 in federal court, we do not need to consider the first two contentions.
The general rule in actions under section 1983 is that state remedies need not be exhausted as a prerequisite to federal jurisdiction. This rule was formulated in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), in which the Supreme Court found in the legislative history of the Civil Rights Act the intent that the federal remedy in section 1983 be "supplementary" to any remedy any State might have. Id. at 183.
The Supreme Court later extended this rule specifically to include exhaustion of administrative remedies. See McNeese v. Board of Education, 373 U.S. 668, 672, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963); Damico v. California, 389 U.S. 416, 417, 19 L. Ed. 2d 647, 88 S. Ct. 526 (1967). Thereafter, the Court has often repeated without discussion that administrative remedies need not be exhausted. See Ellis v. Dyson, 421 U.S. 426, 432-33, 44 L. Ed. 2d 274, 95 S. Ct. 1691 (1975); Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); Preiser v. Rodriguez, 411 U.S. 475, 492-93, 36 L. Ed. 2d 439, 93 S. Ct. 1827 n.10 (1973); Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972); Wilwording v. Swenson, 404 U.S. 249, ...