Waterman, Moore and Hays, Circuit Judges. Waterman, Circuit Judge (dissenting).
This is an appeal from an order of the United States District Court for the Northern District of New York in an action brought by a state prisoner under 28 U.S.C. § 1343 (1964) and 42 U.S.C. § 1983 (1964). After an evidentiary hearing, the district court held that the cancellation by defendants of 120 days of plaintiff's earned good behavior time,*fn1 was unconstitutionally imposed. The defendant Commissioner of Correction of the State of New York was ordered to restore the remaining period of good behavior time credit to plaintiff. As a consequence of this order plaintiff was released from prison on December 24, 1969, although remaining subject to the supervision of the New York Board of Parole. We reverse the judgment of the district court.
In view of the basis for our disposition, only a brief summary of the facts is necessary. Rodriguez, having been convicted in a New York state court of perjury and attempted grand larceny, was sentenced to imprisonment for an indeterminate term of from one and one-half years to four years. Under New York law, a prisoner serving an indeterminate sentence may elect to participate in a conditional release program by which he may earn up to 10 days per month good behavior time credit toward the reduction of the maximum term of his sentence. Appellee chose to elect this program. Optimally a prisoner so electing may be released under the supervision of the Board of Parole, after having served but two-thirds of his maximum sentence, Correction Law § 803 (McKinney's Consol. Laws, c. 43, 1968), Penal Law §§ 70.30 (4) (a), 70.40(1) (a) and (b) (McKinney's Consol. Laws, c. 40, 1967); accrued good behavior allowances so earned, however, may at any time be withdrawn in whole or part for bad behavior or for violation of institutional rules. Correction Law § 803(1) (McKinney 1968).
Appellee was charged in two separate disciplinary action reports dated October 31, 1968, with possession in his cell of five contraband letters written by his wife, and with having six pornographic photographs of his wife in his possession received through illegal channels. The Deputy Warden adjudged that 120 days of the prisoner's earned good behavior time should be cancelled as punishment, "60 days for the letters and 60 days for the pictures." In the "Remarks" section of each judgment was a statement to the effect that appellee had refused to disclose how he had managed to get possession of the uncensored items. The district judge found that this and various other disciplinary actions meted out to Rodriguez (segregation in Sing Sing for a day and a half, segregation in Clinton Prison for several weeks) were really designed to compel these disclosures from appellee. He believed that the imposition of the penalty was a deprivation of Rodriguez' right to due process because the prison regulations prescribed no penalty for refusal to inform. He further found that the Commutation Board at Clinton Prison, which reviews all cases involving forfeiture of good time, failed to comply with a statute directing the Board to forward its reasons for the disallowance of the good behavior time in writing to the Commissioner of Correction and he characterized this failure as the chief basis for his ruling. Correction Law § 236 (McKinney 1968). We cannot agree with the trial judge's view that questions of constitutional significance are involved.
Even if we were inclined to affirm the decision on the merits we would be compelled to reverse on the ground that appellee has failed to exhaust his state remedies.
Section 2254(b) and (c) of Title 28 U.S.C. require state prisoners who apply for federal habeas corpus to show that they have exhausted state remedies. State prisoners are increasingly resorting to the Civil Rights statutes in order to circumvent the requirements of Section 2254. The present application, since it seeks release from custody, is in fact an application for habeas corpus. "Release from penal custody is not an available remedy under the Civil Rights Act." Peinado v. Adult Authority, of Dept of Corrections, 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S. Ct. 2116, 23 L. Ed. 2d 755 (1969). In Johnson v. Walker, 317 F.2d 418, 419-420 (5th Cir. 1963) the court said:
"Use of the Civil Rights Statutes to secure release of persons imprisoned by State Courts would thus have the effect of repealing 28 U.S.C. § 2254; of course, such was not the intent of Congress."
The "chief basis" of the district court's order is founded on error. The provision of § 236 of the Correction Law under which the prison commutation boards forward their reasons for disallowing good behavior time in writing to the Commissioner of Correction is not constitutionally required. Moreover, a letter from Warden Deegan to Commissioner McGinnis dated November 1, 1968 (Defendant's Exhibit "C") was sufficient to satisfy the statutory requirement, since it contained all the information that would have been included in a letter from the Board to the Commissioner. In any case, even if the requirement of § 236 had federal significance, the most that appellee would be entitled to is a decree ordering the board to forward a report to the Commissioner.
Although punishment for refusing to reveal the sources of his contraband would not reflect any constitutional infirmity, it is quite clear that Rodriguez did not lose his good behavior time for refusal to inform but for possession of the contraband. After the punishment was ordered he was given an opportunity to reduce his lost good time credit by revealing the source of the contraband. This procedure, commonly used in law enforcement efforts, certainly does not violate any constitutional right.
The issue in this case is typical of the increasing number of trivial questions of internal prison discipline now being brought, in the first instance, before the federal courts. If the results were not so serious for the administration of justice through state and federal procedures, the spectacle of a federal court of appeals solemnly deciding on the penalty in terms of good time a state prisoner should receive for having dirty pictures in his cell (or for refusing to be a tattle tale) would be so absurd as to be laughable. But if this court entertains actions of this kind it will encourage state prisoners who have any kind of "beef" to bring such actions and the federal courts will end up sitting as prison boards of discipline in the state prisons.
The federal courts should refuse to interfere with internal state prison administration except in the most extreme cases involving a shocking deprivation of fundamental rights. See, e.g., Church v. Hegstrom, 416 F.2d 449, 450-451 (2d Cir. 1969); Wright v. McMann, 387 F.2d 519, 528 (2d Cir. 1967) (concurring opinion of Lumbard, Ch. J.); Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied, 379 U.S. 892, 85 S. Ct. 168, 13 L. Ed. 2d 96 (1964); Jackson v. Bishop, 404 F.2d 571, 577 (8th Cir. 1968) (Blackmun, C. J.). A case such as the instant one, which is totally devoid of merit, should be dismissed out of hand.
At a minimum such cases should first be filtered through the state prison administrative process and the state courts. In Wright v. McMann, Chief Judge Lumbard said:
"We are not called upon this time to decide whether Wright would be heard upon his constitutional claims in federal court without first applying for statutory relief in a state court if the New York legislature had given to inmates of its prisons the right to apply for injunctive relief against improper treatment. I would hold that if a state made provision for such relief in its courts the federal courts should abstain for a reasonable period to allow the state courts to hear the complaint and take appropriate action. I do not agree that recent decisions of the Supreme Court mandate or were intended to mandate action by federal courts in all cases involving the treatment of prisoners in state institutions, without a suitable period of abstention where state courts are empowered to hear the case and where there is reason to believe that the state would grant relief if the complaint were well founded. The disciplining of state prisoners is so peculiarly a matter in the discretion of the state, and the possibilities ...