Full opinion text
NORTHROP, Chief Judge. I. MOTION TO DISMISS The plaintiff in these cases is an inmate of the Maryland Penitentiary. He has filed these cases alleging various deprivations and improprieties in the actions taken against him by the defendants, which he seeks to have this Court adjudicate under 42 U.S.C. § 1983. The captioned cases were consolidated for trial with two other suits, Milton McCray v. John O. Rutherford, Civ.No. 70-1409-N, and Milton McCray v. Warden, Maryland Penitentiary, Civ.No. 72-69-N. The former case was decided in a separate opinion, and the latter was voluntarily dismissed by the plaintiff before the commencement of trial. In a joint motion the defendants have moved to dismiss the complaint on the grounds that Chapter 210, Laws of Maryland, 1971, established an Inmate Grievance Commission, whose duties are to investigate and correct grievances asserted by individuals incarcerated in penal institutions in the State of Maryland. The defendants contend that this unique procedure, which permits a full hearing and subsequent judicial review, requires the plaintiff to exhaust these available state administrative remedies. The problems of scheduling necessitated that the Court hear arguments on the motion immediately prior to the commencement of trial. Such problems are inherent to any prisoner action against a penal institution because of the seeurity risks which arise in transporting a prisoner to the Court. In Chapter 210 of the Laws of Maryland, 1971, the General Assembly took a giant step toward putting its houses of correction in order. Chapter 210 establishes an Inmate Grievance Commission as an arm of the Department of Public Safety and Correctional Services. Although the detailed workings of the Commission and its procedures will be explored at great length infra, the purpose of the establishment of the Commission is to afford Maryland prisoners an administrative forum which, after hearing the merits of prisoner complaints and grievances, is empowered to work within the bureaucracy of the correctional system to remedy affronts to the rights which prisoners are constitutionally entitled to enjoy during the period of their confinement. The creation and implementation of this Commission constitutes the creation of a state administrative remedy to the jurisdiction of which this Court should defer considération of prisoner petitions brought in this Court under the provisions of 42 U.S.C. § 1983 and its companion statutes. The pertinent authority interpreting § 1983, when itself interpreted in light of a practical and reasonable judicial approach, does not prevent such a conclusion. No one intimate with the workings of the United States District Court for the District of Maryland need be reminded of the toll which the meteoric rise in the number of prisoner petitions filed in recent years has taken upon the already heavily taxed resources of this Court. Both the Clerk’s Office and the chambers of the Judges of this Court are laboring under the weight of a mound of prisoner petitions the volume of which never seems to decrease, no matter how rapidly the pending cases are adjudicated. A look at the Annual Report of the Director of the Administrative Office of the United States Courts for the fiscal year ending June 30, 1972 and the Semi-annual Report of the Director for the first half of fiscal 1973, lend statistical evidence to our conviction that there is little hope of relief from the swelling ranks of petitioning prisoners. At the appellate level, nearly 31% of the prisoner appeals filed nationwide were filed in the United States Court of Appeals for the Fourth Circuit in fiscal 1972. This percentage rose to 36.1% during the first half of 1973. More importantly, prisoner cases accounted for 38% of all cases filed with the Fourth Circuit in 1972, and for 45.3% for the first part of 1973. Of greater moment for our purposes is the number of civil rights petitions filed by prisoners in the United States District Courts. In fiscal 1972, 252 civil rights petitions were filed by federal prisoners (an increase of 1,580% over 1961, and an increase of 17.8% over .1971), and 3,348 were filed by state prisoners (an increase of 1,435.8% over 1961, and an increase of 14.9% over 1971). During the first half of fiscal 1973, 155 civil rights actions were instituted by federal prisoners, and. 1,891 were filed by state prisoners. Although it .cannot be denied that direct federal judicial intervention has, in recent years, served to remedy the worst examples of retrogressive American penology (as in the infamous Tucker Farm of Arkansas, see Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)), the time has come to take a careful and critical look at the continued validity of the sweeping interpretation which has caused § 1983 to be read ás a mandate to federal courts and forces them to accept all but the most patently ridiculous complaints from state prisoners, no matter how hard or how successfully the state has tried to set its own prison house in order. An example of how the breadth of the interpretation of § 1983 has led to excessive federal judicial concern over state prisoners is presented by the litigation filed by the plaintiff in this case, Milton McCray. Since January, 1970, Mr. McCray has filed thirty-six suits with this Court, and, as Appendix A indicates, the number of prisoner petitions he files are increasing with the passage of time. The plaintiff’s desire to litigate even the most outrageous complaint is illustrated by Milton McCray v. Warden, Maryland Penitentiary, Civil No. 72-69-N. In this case, which the plaintiff voluntarily dismissed at the commencement of this trial, he alleged that Officer Burrell, and other officers of the penitentiary unknown to the plaintiff, entered the plaintiff’s cell on December 16, 1971, and broke open his locker. They then took from the locker twenty-three (23) pornographic books, two hundred and seventy-five dollars ($275), and ninety-five (95) packs of cigarettes, and a substantial number of other personal items. In his complaint, which is attached to this opinion as Appendix B, plaintiff stated that he and Officer Burrell were engaged in what could best be described as a “Rent-a-Dirty-Book” enterprise. Apparently McCray was receiving between fifteen and twenty dollars a week renting these books to the other inmates. He would rent the “literature” to an inmate for two to five packs of cigarettes a night. He would then sell the cigarettes to other inmates at the discount price of four packs for a dollar. This operation falls into the classification of the enterprises alluded to by Russell Kirk in his column which appeared'in The Sun on Wednesday, June 27, 1973. In that article entitled “Jailhouse Lawyers: Latest Racket Behind Bars,” Mr. Kirk discussed the revelations óf a new book by Fred T. Wilkinson and Fred DeArmond, “The Realities of Crime and Punishment: A Prison Administrator’s Testament.” It was pointed out that prison racketeers “ . . . use power to mistreat their fellows or to extort money from them.” Obviously, this is what McCray was doing in this instance. While this complaint was eventually dismissed, it was not until a substantial amount of time had been expended by his attorneys, the Maryland Attorney General’s Office and this Court. After this ease had been consolidated with three other suits filed by the plaintiff, Michael Millemann, then counsel for the plaintiff, and the Assistant Attorney General representing the Warden, filed a Stipulation For Dismissal of this action, dated June 20, 1972. However, in a letter received by the Court from the plaintiff he asserted his desire that this action not be dismissed. As a result the case remained open, and preparations for trial continued. At the trial the plaintiff, through his counsel, Charles F. Morgan, requested that the Court grant him leave to dismiss this suit without prejudice. He stated that he had decided to pursue his available administrative remedy through the Maryland Inmate Grievance Commission, but if he was dissatisfied with the final disposition of the case, that he intended to refile the complaint in this Court. A potential abuse of the right to bring action in federal court under § 1983 has thus been realized, with two adverse results. First, the caseload of all the judges has increased tremendously, causing a rising backlog of cases. Secondly, and more importantly, the length of time that elapses from the date a prisoner files a meritorious claim asserting an infringement of his constitutionally protected rights to the date of disposition, has become so great that often neither equitable nor legal relief are effective in protecting his rights. This latter consequence is due in part to the ever-increasing caseload of the courts, and to some extent is a normal reaction to prisoners who have “cried wolf” many times too often. These factors cause the great concern, and a brief analysis of the magnitude of the problem is warranted. Recently, this Court held an evidentiary hearing in Mitchell v. Boslow, Civil No. 70-675-N (D.C.Md.1973), which involved a claim that Patuxent Institution violated the plaintiff’s constitutional rights when it failed to protect him from an assault by another inmate. In order to insure that Mr. Mitchell was able to adequately present his case, it was necessary for this Court to request that a local attorney donate his time and represent the plaintiff. After plaintiff’s counsel had prepared the case it was necessary to hold a conference with him, the Assistant Attorneys General handling the case for the State of Maryland, and the United States Marshal, to set up security precautions for the hearing. This was necessitated by the desire of the plaintiff to call as witnesses at the hearing seven inmates in the Maryland Correctional System who were incarcerated in three different institutions. The Mitchell hearing lasted three days, March 12 — March 14, 1973, with the Court finding that the plaintiff’s claim was lacking in merit. During the course of the hearing it was shown that three of the five inmates who actually testified were not even confined with the plaintiff at the time of the assault. In addition, the Court noted that the attitude of one of the witnesses was: “ . . . belligerent, his demeanor disrespectful. His recitation amounted to a verbal attack upon the Institution as a whole.” Mitchell v. Boslow, Civil Action No. 70-675 (D.C.Md., filed March 30, 1973). It is clear from these events that when the federal courts act as the initial forum for any prisoner who alleges a deprivation of his constitutional rights, an allegation often totally without merit, a tremendous amount of court time is required to dispose of the action. If the length of time required for each evidentiary hearing is presumed to be the same as in the Mitchell case, and many could quite possibly be much longer when plaintiff is not represented by counsel, it would require forty-two days of trial to dispose of the fourteen § 1983 suits that Milton McCray instituted in this Court in the calendar year 1972. If one does not take into account the time required for pretrial motions and conferences, and the time needed to write and issue an opinion, this one prisoner has occupied a judge’s time for 20-25% of the fiscal year. One must be cognizant of the fact that a prisoner civil rights action rarely is disposed of by settlement or voluntary dismissal. In addition, since the court cannot travel to the prison itself to conduct the trials, added expense is incurred transporting the plaintiff, his witnesses and the prison personnel to the courthouse. Once this financial hurdle has been cleared, security dangers created by a large number of prisoners confined in the courthouse at one time must be confronted. This Court is not implying that all prisoner civil rights suits are without merit, or that penal institutions in this, or any other, state are without sin. But it is suggesting that these suits will continue to consume more and more of the federal courts’ time, with the result that it will take longer and longer to provide relief for those prisoners who are actually being deprived of their rights. Thus, it is imperative that the scope of § 1983 be examined, and that the viability of alternative state remedies be evaluated to determine if they can provide a speedier redress of prisoner grievances while providing them the protection of due process of the laws. The statute which is the cornerstone of virtually all prisoner petitions filed in the District Courts was enacted as § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It is noW codified as § 1983 of Title 42 of the United States Code and provides : Every person who, under the 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. For a considerable time after its passage, this statute received the narrowest of constructions. See, e. g., Hemsley v. Myers, 45 F. 283 (C.C.D.Kan.1891). However, with the growing march of incorporation of Bill of Rights guarantees into the fourteenth amendment and the concomitant growth in litigative vindication of civil rights, especially where state-created or state-sanctioned racial discrimination was at issue, it was inevitable that the language of § 1983 would eventually receive a broad interpretation. Thus, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court opened the door to a flood of civil rights litigation by holding that, in essence, § 1983 extended to a plaintiff deprived of his constitutional rights by anyone acting, albeit unlawfully, under color of state law, a federal right to relief fully supplementary to any right of relief available for the same unlawful deprivation in state courts. Said Mr. Justice Douglas for the majority: It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. [Id. at 183, 81 S.Ct. at 482]. Perhaps the fact that the plaintiff in Monroe set forth allegations of the most outrageous police conduct imaginable upon him and his family solely because of his membership in the Negro race, spurred the Court on to its statement that § 1983 was intended to afford a remedy fully supplementary to any existing (and presumably adequate) remedy of which plaintiff could avail himself in state court. It is pointed out in an extremely well-reasoned Note entitled “Limiting the Section 1983 Action in the Wake of Monroe v. Pape” at 82 Harv.L. Rev. 1486 (1969) that the fact situation in Monroe, outrageous to the civilized man as it may be, fell within none of the three “main aims” of § 1983 articulated by Mr. Justice Douglas, these being: (1) overriding certain kinds of state laws; (2) providing a remedy when state law is inadequate; and (3) providing a remedy when the state law is adequate in theory but not in practice. Id. at 1489. In the wake of Monroe there followed two cases involving racial discrimination. In McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), the Court determined that a federal action could be maintained under § 1983 despite the plaintiffs’ failure to pursue available state remedy that provided both court and administrative action. The refusal to require the plaintiffs to exhaust the state court remedy was merely a reassertion of Monroe, but the administrative aspect of the state remedy was not required because of its inadequacy under the circumstances. Significantly, the Court pointed out that the pertinent administrative official “has no power to order corrective action.” Id. at 675, 83 S.Ct. at 1437. The only method of enforcement at his disposal was through the state courts. Four years later, in Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), in a brief per curiam opinion, the Court refused to deny the plaintiffs their right to bring action in federal court because they failed to exhaust a state administrative remedy. In basing its opinion on both Monroe and McNeese, the Court said of the latter, “we held that ‘relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,’ id., 373 U.S. at 671, 83 S.Ct. at 1435.” (brackets original). The page reference cited a portion of the decision in which the Court rejected the requirement of exhausting state court remedies. As Judge Newman pointed out in Kochie v. Norton, 343 F.Supp. 956 (D.Conn.1972): Even if the interpolation of the word “administrative” was warranted, it could at most refer to the type of administrative remedy rejected in the latter portion of the McNeese opinion —namely, a remedy which is either beyond the power of the administrator or which cannot provide adequate protection to the right allegedly impaired. [Id. at 959]. The Court then took the word “administrative” out of the brackets in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In a brief and unenlightening per curiam opinion the Court held that exhaustion of only administrative remedies would not be required of a § 1983 prisoner-plaintiff where the state Attorney General, the officer to whom ultimate administrative appeal was to be taken, had already indicated his prejudgment of the case, thereby making resort to the administrative remedy an exercise in futility. But the per curiam opinion then added that, in any event under the authority of Monroe v. Pape, resort to these remedies is unnecessary. Id. at 640, 88 S.Ct. 2119. Then in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court stated: . State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, [cite omitted]. There an inmate’s challenge to the confiscation of his legal materials without first seeking administrative redress was sustained. Although the probable futility of such administrative appeals was noted, we held that in “any event, resort to these remedies is unnecessary.” [citations omitted]. Id. at 251-252, 92 S.Ct. at 409. This summary treatment of the difficult question of administrative exhaustion by the Court in § 1983 suits led to the writing of eight separate opinions by the United States Court of Appeals for the Second Circuit in Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972). This case involved a prisoner suit under § 1983 against the prison officials for loss of good behavior time credit. Under the laws of New York a prisoner serving an indeterminate sentence may elect to participate in a conditional release program by which he can earn up to 10 days per month good behavior time credit toward the reduction of his maximum sentence. Under the program, accrued good behavior credits can be withdrawn at any time, in whole or in part, for bad behavior or violation of institutional rules. Rodriguez had elected to participate in this program but he was charged with possession of contraband material in his cell. As a result, Rodriguez had a substantial amount of credit cancelled, and in addition, he was placed in segregation. He filed suit in the district court pursuant to § 1983, combined with a writ of habeas corpus. The district court ruled that § 1983 was a proper basis for this suit, and that the habeas corpus claim was merely an adjunct to insure full relief if the plaintiff prevailed in the dominant civil rights suit. On appeal the Court of Appeals reversed, stating that this was really a petition for habeas corpus, and as such, the petitioner was required to exhaust available state remedies. On rehearing en banc the Court affirmed the district court on the basis of Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). Finally, the Supreme Court ruled that the suit was challenging the validity of fact or length of confinement, and that as such habeas corpus was the appropriate remedy. The Court stated that “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 at 1841, 36 L.Ed.2d 439 (1973). While affirming its decisions in Wilwording and Houghton the Court again failed to discuss the question of exhaustion of available administrative state remedies under § 1983. However, the Court did discuss the basis for applying the rule of exhaustion in federal habeas corpus actions. The Court, in discussing the rule as rooted in federal-state comity, said: It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons. The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems. Moreover, because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances. In New York, for example, state judges sit on a regular basis at all but one of the State’s correctional facilities, and thus inmates may present their grievances to a court at the place of their confinement, where the relevant records are available and where potential witnesses are located. The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons. [411 U.S. 475, 93 S.Ct. at 1837-1838. (footnotes omitted)]. However, the Court emphasized that even when exhaustion is required, it is contingent on the adequacy and availability of the prisoner's state remedy. There is a need to reconsider the applicability of the exhaustion rule with respect to § 1983 actions when there is an available and adequate state administrative remedy. This is evident when one reads the eight separate opinions issued by the en banc panel of the Second Circuit in the Rodriguez case which reflect a vast disagreement in interpreting the line of cases from Monroe to Wilwording. In addition to resolving a conflict in interpretation, a reconsideration is necessary to eliminate the contradiction created by the Supreme Court in its analysis of the exhaustion rule in the context of habeas corpus in Preiser v. Rodriguez, supra. In that case, the Court justified the application of the exhaustion rule in habeas corpus by invoking the concept of federal-state comity, while ignoring that it should be no less a consideration in prisoner § 1983 actions. To resolve these problems one must examine the “ [v] arying views as to the breadth of the Wilwording holding, the strength of prior precedents, the proper character of the federal balance, and the potential impact upon judicial administration.” It is therefore imperative that this Court consider the validity of these factors and determine under what circumstances, if any, a requirement of exhaustion under § 1983 would be permissible. A.Varying Views As To The Breadth Of The Wilwording Decision In its brief per curiam opinion, the Court in Wilwording summarily treated the question of administrative exhaustion without even mentioning whether or not such a remedy was available to the plaintiff. While it would appear that Wilwording, in light of Damico and Houghton, suggests that resort to state administrative remedies need never be exhausted before litigating § 1983 suits in federal district court, its holding is far more limited. See Kochie v. Norton, 343 F.Supp. 956, 959 (D.Conn.1972). The main holding in this case is that exhaustion is not required when the state remedy is a judicial one, or is an administrative one which cannot provide adequate protection to the right allegedly impaired. Nowhere does the Court discuss the question of requiring a civil rights plaintiff to exhaust viable state administrative remedies before litigating his claim in a federal court. This has provoked a variety of views as to the interpretation to be given to Wilwording. In Rodriguez, the majority of the Second Circuit interpreted the decision as a mandate prohibiting the requirements of exhaustion, whether judicial or administrative. The three dissenting judges in that case viewed it as merely suggesting that no exhaustion be required, but that it did not mandate that result in a particular case. Judge Newman in Kochie v. Norton, 343 F.Supp. 956 (D.Conn.1972), contended that Wilwording and its predecessors held that state judicial remedies need not be exhausted, and administrative exhaustion was not a prerequisite to federal action when the remedy was inadequate under the circumstances. This Court is of the opinion that Judge Newman’s reasoning, when viewed in light of the consequences of a “no exhaustion” rule, is compelling. B. The Strengths Of Prior Precedents This factor has already been discussed at great length in this opinion, and at this juncture it is only necessary to reiterate that at no time has the Supreme Court explicitly discussed the question of administrative exhaustion under § 1983. C. The Proper Character Of The Federal Balance In his opinion in Bundy v. Cannon, 328 F.Supp. 165, 171 (D.Md.1971), Judge Thomsen of this bench quoted from the case of McCloskey v. State, 337 F.2d 72, 74 (4th Cir. 1964): In the great mass of instances, however, the necessity for effective disciplinary controls is so impelling that judicial review of them is highly impractical and wholly unwarranted. The remedy of the inmate is through administrative review, which ought to be available always. [328 F.Supp. at 171]. This belief that the federal courts should not intervene in the functioning of state prisons except in the rarest occasions is founded on the assumption that there does exist an adequate remedy through administrative review. This is clearly shown when Judge Thomsen went, on to say: This court notes that by the Act of 1971, ch. 210, approved April 29, 1971, effective July 1, 1971, Maryland has provided what appears to be an excellent system of administrative review of inmate grievances, through an Inmate Grievance Commission, with an ultimate right of review by the State Courts. [328 F.Supp. at 171]. What appeared to be an effective administrative procedure to Judge Thomsen in 1971, has been judged to be just that. In State of Maryland v. McCray, 267 Md. 111, 144, 297 A.2d 265 (1972), the Court of Appeals of Maryland stated: We think that the Inmate Grievance Commission Act and the implementing rules adopted by the Commission provide “a simple and workable procedure by which every person in confinement who has, or thinks he has, a grievance or complaint can be heard promptly, fairly, and fully,” and obtain a judicial review with respect to his constitutional and statutory rights. [267 Md. at 144, 297 A.2d at 282. (Emphasis added)]. It should be pointed out that to require state prisoners to exhaust such an administrative remedy does not hold them to a stricter standard of exhaustion than other civil rights petitioners, as Wilwording seems to suggest. In McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), the court held that members of the United States Army stationed at Fort Eustis, Virginia were required to exhaust administrative remedies provided by the military service as a prerequisite to relief in the civil courts for violation of their constitutional rights. Citing, United States ex rel. Taylor v. Fritz, 446 F.2d 36, 37 (8th Cir. 1971); Gonzales Salcedo v. Lauer, 430 F.2d 1282, 1283 (9th Cir. 1970); Karpinski v. Resor, 419 F.2d 531, 532 (3rd Cir. 1969); United States ex rel. Berry v. Commanding General, 411 F.2d 822, 824 (5th Cir. 1969); Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915, 917 (1966). In United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) v. State Farm Mutual Automobile Insurance Company et al., 350 F.Supp. 522 (N.D.Ill.1972), a civil rights action was filed by a union and black and white motorists against the insurance rating board, insurance companies and insurance advisory organizations on the ground that, in establishing zones for new automobile insurance premium rates, defendants separated the bulk of the Negro population of the city in one zone and imposed substantially higher rates in that zone. The court held that the civil rights actions could not be maintained until the plaintiffs had exhausted their available state administrative remedies, which the court found to be an effective administrative remedy. While the U.A.A. & A.W. of America case involved a suit filed under § 1983, McGaw did not. However, the need to provide a plaintiff with protection against violations of his constitutional rights is no less great when the defendant is the United States Army. Thus, if a defendant is required to exhaust administrative remedies for an alleged violation of his rights by an agency of the federal government when the only available judicial forum is the federal court system, it would seem inconsistent not to require such exhaustion- when the deprivation is under color of state law. The Court also notes that plaintiffs charging employment discrimination under Title 7 and the Age Discrimination Act are required to exhaust administrative remedies provided by statute. While it can be argued that exhaustion is required in these cases because Congress specifically provided for it, the rationale supporting such a requirement under § 1983 is no less compelling. The Court notes that while exhaustion in habeas corpus actions is also provided by statute, the Supreme Court had required exhaustion prior to Congress enacting this amendment in 1948. See Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Urquhart v. Brown, 205 U. S. 179, 27 S.Ct. 459, 51 L.Ed. 760 (1907); Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944). D. The Potential Impact Upon Judicial Administration This Court has already noted the statistics released in the Annual Report of the Director of the Administrative Office of the United States Courts, and the deluge of litigation instituted in this Court by the plaintiff, Milton McCray. When one evaluates the astronomical rise in prisoner civil rights litigation since 1961, and views the abuse of this right of access to the courts, it becomes apparent that not only will there be a detrimental impact upon the judicial system and its administration, but the legitimate complaints of those prisoners whose constitutional rights are in fact being violated may not be litigated for years. However, if there is available a viable administrative remedy, then the spurious claims will be weeded out, and the district courts will'be called upon to hear only those cases that are clearly of constitutional dimension. In addition, the federal district courts will have the benefit of a complete record of the administrative proceedings before the Inmate Grievance Commission, and the appeals to the state courts. Finally, when an infringement of a prisoner’s rights is found, but equitable relief can be more effectively enforced by the State, this Court will be able to remand the case to the State. Under this procedure a much better record will be available to the court, the constitutional issues presented by the complaint will be definitely articulated, and the Court will not be bound to act as an advocate for the plaintiff to determine what constitutional grievances he might have. The test that is to be used to determine the propriety of requiring administrative exhaustion in a particular case was stated in Armsden v. Cataldo, 315 F.Supp. 129 (D.Mass.1970). In that case Judge Caffrey said: Relevant to a resolution of whether or not exhaustion is required are considerations of the adequacy of the available state remedy, of whether or not it is really a remedy in fact as distinguished from being a remedy in theory, and of the extent of the state’s interest in the subject matter of the litigation. [315 F.Supp. at 131]. Thus, the test of determining the adequacy of the available administrative state remedy is three-fold. First, the court must analyze the theoretical due process adequacy of the state remedy, particularly from the standpoint of making sure the remedy does not contain the forbidden indicia of pre-judgment which renders exhaustion inappropriate. Second, the court must look at the remedy in practice, to see that it is being administered in an even-handed and fair manner. Finally, the third relevant consideration is one that all federal courts must bear in mind when they are called upon to interject themselves into matters entrusted by our form of Government to the realm of the States, and that is, of course, the extent of the State’s interest in the subject matter of the federal litigation. Our first inquiry must be answered by looking at the statute which created the Inmate Grievance Commission in order to determine whether the remedy therein provided is adequate in theory to redress the legitimate grievances of the inmates. The Commission is made up of five members, two of whom are lawyers, two of whom are “persons of knowledge and experience in one or more of the fields under the jurisdiction of the Department of Public Safety and Correctional Services,” and one of whom is a member from the public-at-large. The current members of the Commission are: James G. Boss, Chairman — Attorney-at-law ; James Y. Bennett — Attorney-at-law, and a nationally known penologist and retired Director of the Federal Bureau of Prisons; Maceo M. Williams — A former Patux-ent Institution guard and city probation officer who is now an official of Baltimore’s Concentrated Employment Program, an anti-poverty program; Edgar A. Fulton — A retired insurance man who is now an industrial relations consultant to the U. S. Bureau of Prisons, and a member of the Maryland Advisory Board for Corrections, Parole and Probation; and Ralph S. Falconer — Retired from Maryland Department of Parole & Probation. It is evident that the Governor has made every effort to appoint to the Commission individuals with knowledge in relevant areas and who are equipped with the perspicacity to make objective judgments, free from any institutional preconceptions of the facts of a particular in-prison incident. The mechanics of the grievance procedure are set forth in detail in the statute. 41 Md.Code Ann. § 204F (d)-(f) (Supp.1971). Suffice it to say here that the procedures assure a detached and unbiased resolution of particular cases, culminating in judicial review of the administrative adjudications. Any person confined in a state prison, or any patient of Patuxent Institution, who “has any grievance or complaint against any officials or employees of the Division of Correction or the Patuxent Institution” may submit the grievance or complaint to the Commission. The Commission is given original administrative jurisdiction unless the particular facility in which the complaining inmate is confined has an internal grievance procedure approved by the Commission, in which ease the inmate must first exhaust the institutional procedure before filing with the Commission. According to the testimony of the present Executive Director of the Commission, Dene L. Lusby, a grievance is first screened by the Executive Director. While the complaint may be dismissed if it “is determined to be on its face wholly lacking in merit,” this statutory authorization is not used. Mr. Lusby testified that the Commission did not want to deny an inmate the opportunity for a hearing. However, complaints are dismissed without a hearing when the initial screening process reveals that the Commission lacks jurisdiction, as where an inmate erroneously files for habeas corpus relief with the Commission. In practice, then, the Commission’s jurisdiction mirrors the traditional areas of § 1983 jurisdiction in prisoner cases. When questioned about the initial filings with the Commission, Mr. Lusby stated that as of May 31, 1973, 923 complaints had been received, of which 98 cases (10%) remained opened to be investigated and/or heard if the same were not dismissed, withdrawn or informally resolved. Under the present Commission procedures, an inmate may request to withdraw his complaint, and he will usually be allowed to do so immediately. However, in a few instances, when the nature of the complaint warrants, he is required to withdraw in front of the Commission. Mr. Lusby further stated that he attempts to informally resolve prisoner complaints by contacting the involved institution and requesting that it voluntarily abate the condition upon which the inmate based his grievance. In these instances any resolution would be favorable to the complaining inmate. The Executive Director’s testimony concerning a number of Commission statistics may be summarized as follows: 1. Complaints received from 7/1/71 to 5/31/73 923 2. Administrative dismissals (complaints 507 that are on their face without merit, complaints that are withdrawn by the inmate, complaints over which the Commission lacks jurisdiction and complaints that are informally resolved) 3. Hearings held from November, 1971 to 318 May 31, 1973 4. Disposition a. Some or all relief granted 103 b. No relief granted 152 c. Moot, because prisoner released 10 or escaped d. Pending disposition 50 5. Open complaints as of May 31, 1973 98 6. Scheduled for hearing 58 7. Not scheduled for hearing 40 If the complaint is not dismissed, withdrawn or informally resolved, the Commission is directed to hold a hearing on the grievance as promptly as practicable. The Commission meets twice a week, generally on Wednesdays and Fridays, to hear the grievance of any inmate confined to an institution within the Division of Correction, at the institution where the inmate is housed. At least three Commissioners, must sit for each hearing, and decisions are made by a majority of those sitting. A Voice-writer record is made of all hearings, and is transcribed when the inmate seeks judicial review. This procedure was adopted on December 1, 1972. The Commission’s decision is issued in the form of an order, setting forth findings of fact, the Commission’s conclusions, and the disposition of the complaint. The disposition may take either of two forms. If the complaint is found after a hearing to be “wholly lacking in merit” it may be dismissed, and such dismissal shall constitute the final order of the Commission for purposes of judicial review. On the other hand, if the complaint is found to be meritorious, in whole or in part, the Commission will so notify the Secretary of Public Safety and Correctional Services. The Secretary may then take either of two actions. He may reverse or modify the order, if he disagrees with the Commission. If he agrees with the Commission’s order, as received or as modified, the Secretary shall order the appropriate official of the institution against whom the grievance was filed to accept the Commission’s recommendations. Further, the Secretary is empowered by the statute to “take whatever action he deems appropriate in light of the Commission’s findings.” It is intended that the Secretary will use this grant of power to discipline or otherwise correct officers under his command who have been found guilty by the Commission of engaging in conduct giving rise to a legitimate complaint by the inmate affected. The Secretary’s order carrying out the recommendations of the Commission shall constitute a final order for the purpose of judicial review. The Act gives the Commission the power to require by subpoena the production of any documents by the person or institution under investigation. Further, the Commission may, by subpoena, require the attendance of any person as a witness and the production by that person of any relevant documentary evidence. On cross-examination, Mr. Boss, the Chairman of the Commission, testified that no witness has ever refused to appear before the Commission and that there had never been, to the best of his knowledge, any requests for a subpoena. While, the testimony of Robert Coulter, the first Executive Director of the Commission, contradicted this assertion of Mr. Boss, and in general tried to discredit the Commission, several factors mitigated the effect of his testimony. First, the period that he was serving the Commission as its Executive Director can best be described as the Commission’s formative period. It was involved in implementing the directives of the enabling statute, and it is understandable that problems would exist at this time. Secondly, while his testimony conflicted frequently with that of Mr. Lusby and Mr. Boss, it is significant that neither Mr. Boss nor Mr. Lusby were associated with the Commission at the same time as Mr. Coulter. Therefore it is understandable that Coulter’s experience with the Commission’s procedures might be entirely different from that of the present Chairman and Executive Director. The Act also spells out the procedural requirements of the Commission’s hearings. In addition to the fact that the hearings of the Commission are to be recorded and transcribed as required, the Act makes several specific provisions to insure that the tests of procedural due process are met by the Commission’s hearings. The inmate-complainant has the right to appear in person before the Commission, and, unlike a trip to court for the inmate, this appearance will not impose any special security problems insofar as the Commission is empowered to hold its hearings at any correctional facility, including the Patuxent Institution. The inmate-complainant is given the right to call witnesses in support of his position, subject to the discretion of the Commission as to the number of witnesses called and the relevance of their testimony. Only witnesses whose testimony would be merely cumulative are excluded. This determination is based on the complaining inmates’ assertions as to the subject matter of their testimony. It is further provided that the inmate-complainant is to be given a reasonable opportunity to question (cross-examine) any witnesses who testify before the Commission. These rights of the inmate to the attendance, examination and cross-examination of witnesses “shall not be unreasonably withheld or restricted by the Commission.” The witnesses are not sworn because the Commission has decided that inmates appear to be more relaxed testifying when they are not concerned, or threatened, with the consequences of perjurious testimony. Finally, the inmate is allowed to be represented by an attorney of his own choosing at his own expense, by a law student, or by another inmate. Mr. Lusby testified that an inmate has counsel about 5-10% of the time, and that they are represented either by counsel or a law student approximately 30% of the time. Of course, there is no need for the appointment of counsel, at the expense of the State, for the purpose of representing the inmate, as the hearing is solely remedial, not disciplinary or punitive, in nature. Upon the entry of a final order in his case, the inmate-complainant may initiate judicial review of the orders of the Commission and the Secretary in the circuit court of the county or city in which he is incarcerated. The judicial review is a review on the record and is limited to a determination of whether there was a violation of any right of the inmate protected by federal or state laws or constitutional requirements. Although Ch. 210 is silent on the point, it appears from a reading of the Maryland Rules of Procedure and the Administrative Procedure Act (see Md.Code Ann., art. 41, § 256) that an appeal can be taken from the action of the reviewing circuit court to the Court of Appeals of Maryland. It appears to this Court that there is a viable alternative to direct federal judicial intervention in the State correctional process via § 1983. When the enlightened procedures prescribed as a result of Bundy v. Cannon, supra, for the imposition of in-prison punishment are combined with the more than adequate remedial route furnished by the Inmate Grievance Procedure Act, there emerges a picture of a state correctional system which is truly cybernetic. Indeed, the state judicial system has become increasingly involved in remedying the complaints of Maryland inmates, as witness the unprecedented action of the two-judge Circuit Court which conducted an extensive inquiry into the conditions at the Patuxent Institution, McCray v. State, Misc.Pet. 4363 (Cir.Ct.Mont.Co., November 11, 1971), reversed in part, State v. McCray, 267 Md. 111, 297 A.2d 265 (1972). In that case the Court of Appeals of Maryland noted: We take judicial notice that the Commission is now fully operative. It began operation upon the appointment of an Executive Director on 30 November 1971. Rules and Regulations implementing Code, Art. 41, § 204F were adopted. Public Safety and Correctional Services, 12.07.00.00.-12.-07.00.05. The first hearing session was held on 17 December 1971 and hearings have been held continually since that time. Almost 600 complaints have been received from inmates and about 100 orders issued. The complaints and the disposition of them are open to public inspection pursuant to Code, Art. 41, § 204F(i). [267 Md. at 144 n. 27, 297 A.2d at 283]. Further evidence of the Inmate Grievance Commission’s viability was reported in The Sun on December 8, 1972. The Sun reported: “An order banning the use of an extremely painful restraining device known as the ‘iron claw’ in Maryland prisons has been announced by the State Inmate Grievance Commission.” This order was the result of a complaint filed by two prisoners at the Maryland Correctional Institution in Hagerstown that the iron claw was used on them in violation of the eighth amendment of the Constitution. The State’s interest in the subject matter of the prisoner complaints under § 1983 is paramount. The extent of this interest was clearly defined by the Supreme Court, Preiser v. Rodriguez, supra, in the passage already cited in this opinion. Thus is presented the picture of a complete, self-contained and self-executing administrative process set up by the State to resolve prisoner complaints justly and expeditiously. Clearly, the federal courts have neither the time nor resource, nor experience enough, to justify their interjecting themselves into the job of running state penal institutions. The question of federal court interjection into this area has been the object of considerable study during the last year. One such study is the Report Of The Study Group On The Caseload Of The Supreme Court, 57 F.R.D. 573 (1972). In that Report the problem of prisoner petitions is discussed and analyzed as follows: (d) A court of criminal appeals. The problem of prisoners’ petitions. The dangers of polarization and politicization would be particularly intense in an appellate court whose only concern was the review of criminal convictions. Moreover, there is an inherent dilemma in such a plan, turning on whether or not there would be further review on certiorari in the Supreme Court. If such review were provided, the screening function of the Supreme Court would not be materially relieved. If review were not provided, defendants in criminal cases would be placed in an inferior and invidious position with respect to access to the Supreme Court. We reject a proposal that would put this class of litigants in that position. But the problem of prisoner petitions, which the Supreme Court shares with lower federal courts and to some extent with State courts, has grown ever more pressing in the last decade or so, and does demand special attention. We refer both to collateral attacks on criminal convictions and to complaints concerning conditions in prisons. On the Supreme Court’s docket at the October Term, 1971, the number of petitions in habeas corpus and other collateral attack cases was 758. Total State and federal prisoner cases filed in the lower federal courts in 1971 came to 16,266. Most of the cases are brought by State rather than federal prisoners, although filed in federal courts, and most are habeas corpus petitions. But a substantial number of prisoner cases —3,129 filed in the federal courts in 1971 — are civil rights complaints concerning conditions in prisons, and these will increasingly filter up to the Supreme Court. The continuing rise in the volume of prisoners’ petitions, on the docket of the Supreme Court as also on the dockets of all federal courts, is reflected in figures collected by the Solicitor General. There is close identity between these petitions and filings in forma pauperis. The Solicitor General reports that the number of papers filed by his office in the Supreme Court of the 1971 Term in ifp cases increased by 35.1% over the previous Term. The comparable increase in paid cases was 17.-3%. (Memorandum To The Solicitor General’s Staff, July 6,1972.) The number of these petitions found to have merit is very small, both proportionately and absolutely. But it is of the greatest importance to society as well as to the individual that each meritorious petition be identified and dealt with. And yet it seems a misal-location of resources to impose the burden of sifting through the mass of these petitions on federal judges, let alone on Supreme Court Justices. Moreover — and this is at least as important — these overburdened judges and Justices, charged with so many other highly important functions, are less likely to give full and careful attention to each petition than officials whose special task it might be made to do so. The problem is somewhat analogous to one faced by the medical profession. Mass screening of thousands of people will uncover cancer in very few, but it will diagnose it in some at a stage where prospects of cure are good. The mass screening enterprise is, therefore, justified. But the screening is not conducted by highly trained surgeons. To use surgeons for this purpose would be to misuse them. Nor, unless they are relieved of their other, more demanding functions, will surgeons likely perform this routine task with the care it routinely requires, if undertaking it at all is to be justified. As the Solicitor General has remarked (Memorandum To The Staff, supra), “[i]t seems obvious that there should be a better way to deal with these questions [presented by ifp prisoner petitions], at least with respect to collateral review.” It is satisfying to believe that the most untutored and poorest prisoner can have his complaints or petitions considered by a federal judge, and ultimately by the Supreme Court of the United States. But we are, in truth, fostering an illusion. What the prisoner really has access to is the necessarily fleeting attention of a judge or law clerk. The question is, would it not be better to substitute for the edifying symbol, and the illusion that it presents, the reality of actual, initial consideration by a non-judicial federal institution charged exclusively with the task of investigating and assessing prisoner complaints of the denial of federal constitutional rights. This institution, headed by an official of high rank, would have a staff of lawyers and investigators, and a measure of subpoena and visita-torial powers. It would be charged to investigate complaints, make a response to them, and where possible, try to settle in-prison grievances by mediation. All petitions for collateral review or for redress of grievances concerning prison conditions, from State or federal prisoners, which could now be filed in a federal court, would go initially to this new institution at the election of the prisoner or by referral to it at the discretion of the court in which a petition is filed. Three months might be allowed the new service for dealing with a complaint or petition lodged originally with it. At the end of this period the prisoner could file his papers with an appropriate court, but the papers would be accompanied by a report from the new institution. Thereafter, the matter would proceed as it would now. Obviously, the details of this proposal remain to be worked out; we believe it merits prompt further study and consideration. [57 F.R.D. at 586-588], Another suggestion concerning the problem of prisoners’ petitions appeared in an article entitled “Prison Ombudsmen Provide a Safety Valve,” 56 Judicature 314, March 1973. The article discussed the institution of an ombudsmen system in the prisons to provide effective relief from maladministration. The author then went on to say: In an era where the courts have become overburdened, emphasis should be placed on finding alternative or complementary means of achieving just results without unduly increasing the courts’ caseloads. An office of ombudsman could serve this function. As primarily a complaint investigation mechanism, the office could readily eliminate duplication of effort by providing independent offices of state legislatures, the courts, and even the correctional administrators with information which would not otherwise be available to them. By improving communication and facilitating investigation, the ombudsman would be able to complement the sophisticated information systems which presently exist in government. The true value of the ombudsman lies not as a substitute for existing complaint handling mechanisms but as an added protection which attempts to enhance the total grievance machinery by eliminating the present system’s weaknesses. It would serve to stimulate present procedures within the correctional system itself, and by so doing would lessen the number of grievance complaints that are now gravitating to the courts. By reducing the number of frivolous complaints and complaints which are not well-suited for judicial determination, the courts would be provided more time to devote to adjudicating issues which are of greater importance. An avenue of redress such as this might indeed cause the courts to become more receptive to thb complaints which eventually reach them. [56 Judicature at 315]. It appears to this Court that the Maryland Inmate Grievance Commission combines the best of' both suggestions, that is, initial investigation by a non-judicial institution charged with the responsibility of investigating and assessing prisoner complaints, and provision for subsequent review by the courts. In addition, the federal-state balance is preserved in the manner expressed by the Supreme Court in Preiser v. Rodriguez, supra,. In light of these developments, the least the federal court can do is to give the State system a chance to continue to purge itself of its abuses, which can only be done if inmate complaints are channeled via the inmate grievance route. It must be emphasized that the imposition of the exhaustion requirement outlined in this opinion does not take away the right of the aggrieved inmate to resort to a federal remedy. All it does is to put the remedy one step beyond immediate reach. If the inmate does not receive justice from the State procedures, he can then file his complaint in the District Court under § 1983. As previously pointed out, this Court does not think that anything in the prior trend of decisions prohibits this action, although, in all candor, the cases would not seem to encourage it. But those were different cases dealing with different facts, with administrative remedies almost neolithic compared to the Maryland Inmate Grievance Procedure. In fact, even if Wilwording is interpreted broadly, the United States Court of Appeals for the Fourth Circuit, in Hayes v. Secretary of Department of Public Safety, 455 F.2d 798 (1972), indicated : While Maryland has recently established an Inmate Grievance Commission ... to determine and recommend the proper redress for meritorious grievances of inmates of Pa-tuxent and other correctional institutions, we take judicial notice of the fact that the Commission is not yet fully operative. When it is, there will be time enough for the Supreme Court to determine if Monroe v. Pape, and we, our own decisions, should be reexamined . . .. [455 F.2d at 800]. This Court believes, as does the Court of Appeals of Maryland, that the Commission is now fully operative, and takes judicial notice of that fact. Therefore, the time for reexamination is now. In prisoner rights cases, as in any other § 1983 cases, the federal courts are called upon to exercise both aspects of their jurisdiction, in equity and law. Insofar as the Maryland statute creating the Inmate Grievance Commission does not give the Commission, (or the reviewing courts, for that matter) the power to award money damages for the deprivation of constitutional rights which may not amount to a tort under the laws of Maryland, a serious question as to the propriety of our action might arise if we made the Maryland administrative procedure the sole and exclusive remedy for prisoners seeking redress for deprivation of constitutional rights, thus'forever barring them from access to the federal damages remedy inherent in § 1983. However, the only thing which the imposition of this exhaustion requirement would do in these cases is to work a postponement of the ultimate .award of damages in a meritorious § 1983 suit. Although it may be true that very few § 1983 cases ultimately result in the awarding of damages, it is equally true that a federal court cannot close its doors forever to a claim for damages in § 1983 cases, even if an otherwise wholly adequate state remedy exists. It is clear that the enabling legislation gives the Commission, and seems to give the reviewing courts, only powers comparable to the equity powers exercised by the federal courts, in that the Commission and the Secretary can order the officers and institutions of the correctional system to stop practices offensive to constitutionally safeguarded rights. The fact that directives havé been issued by the correctional system was testified to by Mr. Lusby, and the Warden of the Maryland Penitentiary, Gerald H. McClellan. The plaintiff introduced evidence that one of these directives, which requires two guards to be present when a prisoner’s cell is being inspected for various reasons, has not been followed. The Warden, however, pointed out that this was due to a tremendous shortage of prison guards. Under such circumstances, it would make little difference if the directive had been issued by a federal cou