Seitz and Aldisert, Circuit Judges, and Latchum, District Judge.
In this appeal we are confronted with the increasingly recurrent claim that the civil rights of appellant, an inmate of a state penal institution, have been violated by prison officials. The mounting frequency of civil rights claims, under 42 U.S.C. § 1983, in the federal courts cannot escape attention. Nor can the phenomenon that a large percentage of these complaints, drafted pro se by prisoners lacking the perspicacity or restraint of professional draftsmen, are improvidently filed.*fn1 These circumstances prompt us to explore the issues presented here in greater depth than disposition of the case might otherwise demand.
Appellant, while confined at the State Correctional Institution at Dallas, Pennsylvania, filed this action against the state Commissioner of Correction and the Dallas superintendent. Invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), appellant alleged a galaxy of constitutional infringements couched in broad, conclusory language. Included were the charges that the prison authorities had denied him "the right kind of [medical] treatment" by transferring him to an institution where adequate care was unavailable, that they discriminated against him because he is a Jew, denying him the services of a rabbi, and that prison regulations relating to the preparation of legal papers denied him due process. The Dallas superintendent responded with a motion for summary judgment supported by affidavits, and upon finding no genuine issue of any material fact, the court below dismissed the complaint.
In judging the propriety of the dismissal, we begin with a review of the legislation on which appellant bases his claim for relief. Section 1983 of Title 42 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
It is clear from the statute's express language that, like federal habeas corpus in this respect, a civil rights complaint must portray specific conduct by state officials which violates some constitutional right of the complainant in order to state a claim for relief. In the case of a prisoner, the determination of what constitutes an actionable claim may become difficult since imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society. The loss of these rights has been recognized by the Supreme Court as "a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948).
Stated simply, a man in jail is not a free man; the denial of his right to drink fully from the cup of freedom is the very hypostasis of confinement. For reasons grounded more in historic precedent and expediency than justified by even the most primitive notions of social rehabilitation, imprisonment as a form of punishment persists. As the eminent psychiatrist, Karl Menninger, observes, "the idea of punishment as the law interprets it seems to be that inasmuch as a man has offended society, society must officially offend him. It must deliver him a tit for the tat that he committed * * * [Society must] deprive a man of decent social relationships, palatable food, normal friendships and sexual relations, and constructive communication. * * *"*fn2
But so long as incarceration as a form of punishment continues, we are required perforce to recognize that, archaic and indefensible though it may be, its objective is to circumscribe certain activities and opportunities not only available in, but also characteristic of, an open societal setting. And, unpleasant as it is to contemplate the physical restrictions of a "settled environment", we must also recognize that even those rights which survive penal confinement may be diluted by peculiar institutional requirements of discipline, safety, and security.
To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community. The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials.
At the same time, however, the federal courts have been sensitive to certain particularized complaints, foremost among which have been allegations of religious discrimination. In such cases, the courts have not hesitated to intervene where prison officials have unreasonably attempted to curtail the practice of religion by prison inmates. See Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); Walker v. Blackwell, 360 F.2d 66 (5 Cir. 1966); Pierce v. LaVallee, 293 F.2d 233 (2 Cir. 1961). Usually the cases have involved a denial of the use of available services or facilities or materials. But the test of what actions are unreasonable restraints on the exercise of religion has of necessity proceeded on an ad hoc basis. In Long v. Parker, 390 F.2d 816, 822 (3 Cir. 1968) this court, speaking through Judge Forman, said: "To justify the prohibition of religious literature, the prison officials must prove that the literature creates a clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution."
Appellant's contention is more sophisticated. He is alleging a violation of the Free Exercise Clause because the state has not supplied him with a clergyman of his faith. Thus we have the antithesis of the cases arising under the Establishment Clause: This is not a charge that the state is supporting a religion, but a complaint that it is not.
The requirement that a state interpose no unreasonable barriers to the free exercise of an inmate's religion cannot be equated with the suggestion that the state has an affirmative duty to provide, furnish, or supply every inmate with a clergyman or religious services of his choice. It is one thing to provide facilities for worship and the opportunity for any clergy to visit the institution. This may be rationalized on the basis that since society has removed the prisoner from the community where he could freely exercise his religion, it has an ...