(D.C. Civil Action No. 71-335) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges
This appeal challenges a March 22, 1972, district court order granting a motion to dismiss an August 10, 1971, complaint invoking jurisdiction of the court to grant relief under 28 U.S.C. §§ 1361 and 1651(a) and seeking, inter alia, orders directing the prison officials at the U.S. Northeastern Penitentiary, Lewisburg, Pa., to allow Black Muslims to establish "worshipping services in accord with the teachings of Messenger Elijah Muhammed" and to prepare at least one meal a day, pork free.*fn1 The Answer asked that the Complaint be dismissed because (1) mandamus relief was not availabe for failure to exhaust petitioner's administrative remedy by petition to the United States Bureau of Prisons, (2) relief under the Federal Tort Claims Act is unavailable for failure to exhaust administrative remedies, 28 U.S.C. § 2675, and to join an indispensable party, (3) habeas corpus relief is not available to investigate complaints of prisoners for mistreatment, and (4) petitioner may not proceed under 42 Utah 83, 129 P. 412 C. § 1938. See Long v. Parker, 390 F.2d 816, 819 (3d Cir. 1968). The Answer also alleged:
"... the plaintiff and all persons similarly situated are authorized to conduct religious services which are properly supervised and conducted by ordained ministers of their religion. Although the defendant has authorized visits from ordained Black Muslim ministers for that purpose and has agreed to pay expenses or salary to such ministers, the leader of the Black Muslim movement and the plaintiff have failed to cooperate with the defendant in any manner in this endeavor.
"Relative to the plaintiff's allegation regarding diet and the preparation of food at the institution, the defendant states that the same policies and procedures proven in the case of Long v. Parker, Civil Nos. 8870 and 9152, are presently in full force and effect. These policies afford the plaintiff a nutritious and balanced diet."
Petitioner filed a Counter Answer, denying these allegations and alleging that Mr. Raush, Associate Warden, had stated that the Bureau of Prisons would not allow the Muslims to worship.
Especially in prisoner actions asking for mandamus remedies, this court has held that federal prisoners must exhaust available administrative means at their disposal before judicial review is available. See Green v. United States, 283 F.2d 687, 688-89 (3d Cir. 1960), where the court said:
"... appellant has failed to exhaust his administrative remedies. Under the regulations promulgated by the Bureau of Prisons, there is available to all prisoners, the right of the 'Prisoner's Mail Box.' This procedure sets up an effective means of review of actions of local prison authorities....
"This case presents an alleged situation in which administrative review should have been utilized. Appellant asserts deprivation of a fundamental right by the Warden of the Lewisburg Penitentiary. The claim implies an abuse of discretion by that official. However, in the administration of federal prisons primary supervision is delegated by statute to the Bureau of Prisons, 62 Stat. 849, 18 U.S.C. § 4042. By that law the Bureau is directly responsible for the control and maintenance of all such institutions and has the power to review any action taken by the local wardens."
In McKart v. United States, 395 U.S. 185, 194-95, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969), Mr. Justice Marshall stated the reasons behind the doctrine of exhaustion of administrative remedies in this language, which we have concluded is applicable to this record:
"Particularly, judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures."
Similarly, this language is used in Davis, ADMINISTRATIVE LAW TREATISE (1970 Supp.) § 20.01, p. 644:
"The reason for requiring exhaustion is that the informal denial is likely to come from subordinate employees, and that whatever errors in facts of law or discretion they have made are likely to be corrected by the superior officers who consider the case when it ...