Donald K. Hess v. Olin G. Blackwell, Warden

409 F.2d 362, 1969 U.S. App. LEXIS 13149

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 21, 1969
• Docket: 25643_1
• Status: Published

Opinions

PER CURIAM:

Appellant is an inmate of the United States Penitentiary, Atlanta, Georgia. He filed in the court below a “Motion for Restraining Order” seeking to have prohibited the alleged use by prison guards of a “fluoroscopic and stationary X-ray machine” upon himself and other prisoners in the conduct of searches for contraband material when such prisoners enter or leave the institution. He asserted that the machine is negligently used by untrained personnel and causes or is likely to cause radiation burns and other injuries.

The trial court on October 13, 1967, denied the motion without an evidentiary hearing, for failure to exhaust administrative remedies, and later, on November 13, 1967, denied a “motion to renew (sic) judgment”. A later “motion to reinstate” was denied December 7, 1967. This appeal followed.

The “motion to renew” judgment contained the following allegations:

“In the court’s order, it is stated relief must be through administrative channels. The petitioner avers he has wrote two letters in relation to the above, to the following: Attorney General, Mr. Ramsey Clark, Department of Justice, Washington, D. C., without a reply.”

This was an allegation of at least an attempt to secure relief administratively. The “motion to renew” also made clear that the appellant based his application upon the Eighth Amendment’s ban on “cruel and unusual punishment”.

Apparently not brought to the attention of the district court was a purported letter dated May 25, 1967, from the appellant-petitioner to the Director of the Bureau of Prisons complaining of searches by use of the hospital x-ray machine and the danger of overexposure to radiation. A copy of this letter appears as an appendix to the appellant’s brief in this Court. The brief asserts that appellant’s complaints were never answered. If such a letter was sent, it also indicates an attempt to pursue the appellant’s complaint through administrative channels.

We agree with the district court that since the management and regulation of federal penal correctional institutions is by statute delegated to the Bureau of Prisons under the direction of the Attorney General

* resort must be had in the first instance to these officials. Green v. United States, 3 Cir. 1960, 283 F.2d 687.

But, if the appellant’s assertions are true, he had sought relief through administrative channels before bringing his complaint into the district court. Until the district court tests these allegations by proof at a plenary hearing, it is impossible to determine whether or not administrative remedies have been exhausted. Unlikely as it may appear that responsible prison officials permit the use of potentially dangerous equipment, the appellant is entitled to a day in court to try to prove the truth of his allegations provided' available administrative remedies have been exhausted. Accordingly, we reverse and direct that the district court vacate its prior judgment, and determine whether or not available administrative remedies have been exhausted. If so, that court should then conduct an evidentiary hearing and make appropriate findings with respect to appellant’s allegations of deprivation of Eighth Amendment rights.

Reversed and remanded.

Title 18, U.S.C., Secs. 4001 and 4042.