Lumbard, Chief Judge, Kaufman and Feinberg, Circuit Judges. Lumbard, Chief Judge (concurring).
IRVING R. KAUFMAN, Circuit Judge:
We are called upon to decide whether allegations contained in a complaint filed by a inmate in a state prison, if true, evidence treatment constituting "cruel and unusual punishment" in violation of the Eighth Amendment of the Constitution of the United States.
Lawrence William Wright, an inmate of Clinton State Prison at Dannemora, New York,*fn1 appeals from a dismissal of his complaint without a hearing by the District Court for the Northern District of New York, Brennan, J., 257 F. Supp. 739 (N.D.N.Y.1966). The complaint, brought under the Civil Rights Act*fn2 and seeking an injunction and $10,000 damages for alleged violations of rights secured to Wright by the Constitution of the United States, was dismissed on the grounds that it failed to make a sufficient showing of the denial of Wright's constitutional rights, or, alternatively, that Wright's remedy, if any, lay in the New York courts. We reverse and remand to the District Court.
The complaint (prepared by appellant without the formal assistance of counsel) alleges*fn3 that on February 18, 1965, the Deputy Warden, acting on behalf of Warden McMann, the defendant, placed Wright in the solitary confinement unit of the prison for an alleged violation of a prison regulation. The core of Wright's charge seems to be based on the claim that upon reception in solitary confinement, he was placed first in what is known in prison jargon as a "strip cell," where all sorts of cruelties were visited upon him. The conditions to which Wright allegedly was subjected in this cell are best described in his language:
The said solitary confinement cell wherein plaintiff was placed was dirty, filthy and unsanitary, without adequate heat and virtually barren; the toilet and sink were encrusted with slime, dirt and human excremental residue superimposed thereon; plaintiff was without clothing and entirely nude for several days [elsewhere said to be 11 days] until he was given a thin pair of underwear to put on; plaintiff was unable to keep himself clean or perform normal hygienic functions as he was denied the use of soap, towel, toilet paper, tooth brush, comb, and other hygienic implements and utensils therefore; plaintiff was compelled under threat of violence, assault or other increased punishments to remain standing at military attention in front of his cell door each time an officer appeared from 7:30 A.M. to 10:00 P.M. every day, and he was not permitted to sleep during the said hours under the pain and threat of being beaten or otherwise disciplined therefore; the windows in front of his confinement cell were opened wide throughout the evening and night hours of each day during subfreezing temperatures causing plaintiff to be exposed to the cold air and winter weather without clothing or other means of protecting himself or to escape the detrimental effects thereof; and the said solitary confinement cell was used as a means of subjecting plaintiff to oppression, excessively harsh, cruel and inhuman treatment specifically forbidden by the Eighth Amendment to the United States Constitution. (Complaint, para. 12.)
In other filed papers Wright states that this "strip cell" was completely barren of furniture with the exception of a sink and toilet. He goes on to state that he was forced to sleep completely nude on the cold rough concrete floor and that the cell was so cold and uncomfortable that it was impossible for him to sleep for more than an hour or two without having to stand and move about in order to keep warm. He adds that food was served to him in bowls placed on the floor of his cell and that he was forced to handle and eat his rations without even the semblance of cleanliness. He describes the cell as fetid and reeking from the stench of the bodily wastes of previous occupants which he says covered the floor, the sink, and the toilet.
Wright was continuously kept in this cell until March 23, 1965 -- a total of 33 days. A year later, he again was placed in a "strip cell," this time for 21 consecutive days, for violating a prison rule.*fn4
Until recently the federal courts refused to review charges instituted under the Civil Rights Act and arising out of state prison disciplinary procedures. The prisoners, instead, were left to pursue whatever remedies were available in the state courts.*fn5 The oft repeated reasons used to justify this result were (a) that the Eighth Amendment's prohibition against cruel and unusual punishment did not apply to the states, (b) a reluctance to interfere in the internal discipline of state prisons, and (c) the need to utilize state remedies in the first instance. See Redding v. Pate, 220 F. Supp. 124, 126 (N.D.Ill. 1963).
Recent decisions, however, have demonstrated a sharp alteration in the judicial attitude toward these rationales and today the older cases retain little vitality. Indeed, there is no longer any question that a state prisoner may bring an action under the Civil Rights Act. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964). Any lingering uncertainty over the applicability of the Eighth Amendment to the States was laid to rest by Robinson v. State of California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). And, while federal courts are sensitive to the problems created by judicial interference in the internal discipline of state prisons, in appropriate cases they will not hesitate to intervene. Pierce v. LaVallee, 293 F.2d 233 (2d Cir. 1961); Howard v. Smyth, 365 F.2d 428 (4th Cir.), cert. denied, 385 U.S. 988, 87 S. Ct. 599, 17 L. Ed. 2d 449 (1966); Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.Cal.1966); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C.1962); Talley v. Stephens, 247 F. Supp. 683 (E.D.Ark.1965).
The harshest blow to the old "hands-off" doctrine was struck by Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). There, in an action under the Civil Rights Act to recover money damages against city police officers for violating rights secured by the Fourteenth Amendment, the Court held that exhaustion of state remedies was not a condition precedent to accepting jurisdiction. Any remaining belief in the vitality of the exhaustion principle was dispelled when the concurrent jurisdiction of the federal courts in cases under the Act was reaffirmed in clear terms in McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). The Court quoted with approval the language of Judge Murrah in Stapleton v. Mitchell, 60 F. Supp. 51 (D.Kan.1945): "We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum." Id. 373 U.S. at 674, 83 S. Ct. at 1437, n. 6. It is appropriate to note, however, that recently we had occasion to observe that the Supreme Court did not intend Monroe and McNeese to abrogate the historic principle that federal courts will not entertain a suit in equity when "plain, adequate and complete" remedy may be had at law. Potwora v. Dillon, 386 F.2d 74 (2d Cir. 1967). Of course, Monroe settled beyond cavil that exhaustion is not required when only legal relief is sought. And, in any event, in this suit for both legal and equitable relief it is only too clear that New York's remedies are inadequate.*fn6
Indeed, until relatively recently it was clear that Wright could not even have prosecuted a claim in a New York Court because New York's civil death statute*fn7 imposed a complete bar to suits by prisoners while incarcerated. See, e.g., Green v. State of New York, 278 N.Y. 15, 14 N.E.2d 833 (1938); Burns v. City of New York, 21 A.D.2d 767, 250 N.Y.S.2d 680 (1st Dept. 1964). Since the amendment of section 6-b of the Correction Law*fn8 in 1962 McKinney's Consol. Laws, c. 43, a right of action (with leave of a Supreme Court Judge) is afforded for the recovery in the New York Court of Claims of damages resulting from injuries inflicted by an employee or officer of a state prison.*fn9 But the Court of Claims possesses limited jurisdiction and may award only money damages. New York Constitution, Art. 6, § 9. Section 6-b thus is of no aid to Wright in his quest for an injunction to prevent a ...