GARZA, District Judge.
Appellants filed pro se in the district court substantially identical petitions styled “Motions for Mandatory Injunctions” which were actions in the nature of mandamus, alleging that Appellants are confined in the United States Penitentiary at Atlanta, Georgia, that they are Muslims and their religion is Islam, and that they have been harassed and denied the right to worship and practice their religion by Appellee, the warden of the penitentiary.
The complaints were dismissed for lack of jurisdiction, the district court holding that the civil rights statutes relied upon by Appellants, 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983-1985, provide a remedy for deprivation of civil rights only under color of law of a “state or territory”.
The cases were consolidated for appeal and present the question of whether the district court was correct in dismissing these actions for the reason stated, or whether it had jurisdiction on some other basis.
Appellants alleged that the warden had not permitted them to practice the religion of Islam to the same extent as other prisoners of different faiths were allowed to practice their religions, and asked that the warden be enjoined from denying to them the right to practice the religion as taught by Elijah Muhammad, to wear a religious medal or ring, to receive the newspaper “Muhammad Speaks”, prayer books and other literature, to correspond with Elijah Muhammad or his ministers, to listen to Muhammad’s radio program, to observe the dietary laws of the Islamic religion, to be furnished with a time and a place in the penitentiary to worship, to receive Elijah Muhammad or his ministers to conduct services in the penitentiary, and to be furnished copies of the “Holy Quran”.
Since these complaints relate to the administration of a United States penitentiary by a federal official, we agree with the district court that they could not be maintained under 42 U.S.C. § 1983. However, we believe, and the Government concedes,1
2that these complaints state causes of action against a federal official under 28 U.S.C. § 1361,2 and they will be remanded to the district court for further proceedings.
We begin our belief discussion of some of the criteria established in the treatment of such cases, with the oft-quoted phrase by the United States Supreme Court in Price v. Johnston, 334 U.S. 266 at 285, 68 S.Ct. 1049 at 1060, 92 L.Ed. 1356:
“Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”
In our case of Tabor v. Hardwick, 224 F.2d 526, 5 Cir., 1955, Judge Rives stated for this Circuit:
“The control of federal penitentiaries is entrusted to the Attorney General of the United States and the Bureau of Prisons, who, no doubt, exercise a wise and humane discretion in safeguarding the rights and privileges of prisoners so far as consistent with effective prison discipline. Unless perhaps in extreme cases, the courts should not interfere with the conduct of a prison or its discipline.” (Citations omitted.) 224 F.2d at 529.
In similar cases involving state penitentiaries, the federal courts have recognized that prison discipline is an executive function with which the judi[68]*68cial branch ordinarily will not interfere, but have upheld the right to relief from religious persecution.
The Second Circuit has dealt with this problem on several occasions, and the district court for the Southern District of New York stated in United States ex rel. Washington v. Fay, 217 F.Supp. 931, D.C.N.Y.1963, that thirteen suits were filed by Muslims in the Northern District of New York by state prisoners, five in the Western District, and several in the New York state courts.
In Pierce v. LaVallee, 293 F.2d 233, 2 Cir. 1961, the court remanded for trial an extreme case in which it was alleged that prisoners were being punished solely because of their religious beliefs.
“Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category. See Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Fol-lett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81. As the Supreme Court has there pointed out, freedom of religion and of conscience is one of the fundamental ‘preferred’ freedoms guaranteed by the Constitution. We must approach decision with that admonition in mind.” 293 F.2d at 235.
The ultimate disposition of Pierce involved no interference by the court with prison discipline. Pierce v. La Vallee, 319 F.2d 844, 2 Cir. 1963; cert. den. 374 U.S. 850, 83 S.Ct. 1913, 10 L.Ed.2d 1070, 1963.
Exhibits and testimony in the trial record were summarized in detail by the court in Sostre v. McGinnes, 334 F.2d 906, 2 Cir. 1965; cert. den. 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96. In its discussion of many cases involving “Black Muslims”, the court paints a sorded picture of the movement’s history of violence and threat to prison discipline, caused primarily by its teachings of racial hatred as an essential part of the faith. After conceding that the Muslim group has some characteristics of a religious sect, the court states:
“No romantic or sentimental view of constitutional rights or of religion should induce a court to interfere with the necessary disciplinary regime established by the prison officials.” 334 F.2d at 908.
“The problem presented by the Muslim group is not whether they should be permitted to have congregational services, a minister, religious literature, but rather, under what limitations protective of prison discipline they should be permitted these rights.” 334 F.2d at 911.
Apparently the officials at the Atlanta penitentiary have had unhappy experiences with their Muslim inmates in the past. The Seventh Circuit, in Cooper v. Pate, 324 F.2d 165, 7 Cir. 1963, an action by an Illinois state prisoner, took judicial notice of offical or accredited social studies of the Black Muslim Movement, one of which stated:
Free access — add to your briefcase to read the full text and ask questions with AI
GARZA, District Judge.
Appellants filed pro se in the district court substantially identical petitions styled “Motions for Mandatory Injunctions” which were actions in the nature of mandamus, alleging that Appellants are confined in the United States Penitentiary at Atlanta, Georgia, that they are Muslims and their religion is Islam, and that they have been harassed and denied the right to worship and practice their religion by Appellee, the warden of the penitentiary.
The complaints were dismissed for lack of jurisdiction, the district court holding that the civil rights statutes relied upon by Appellants, 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983-1985, provide a remedy for deprivation of civil rights only under color of law of a “state or territory”.
The cases were consolidated for appeal and present the question of whether the district court was correct in dismissing these actions for the reason stated, or whether it had jurisdiction on some other basis.
Appellants alleged that the warden had not permitted them to practice the religion of Islam to the same extent as other prisoners of different faiths were allowed to practice their religions, and asked that the warden be enjoined from denying to them the right to practice the religion as taught by Elijah Muhammad, to wear a religious medal or ring, to receive the newspaper “Muhammad Speaks”, prayer books and other literature, to correspond with Elijah Muhammad or his ministers, to listen to Muhammad’s radio program, to observe the dietary laws of the Islamic religion, to be furnished with a time and a place in the penitentiary to worship, to receive Elijah Muhammad or his ministers to conduct services in the penitentiary, and to be furnished copies of the “Holy Quran”.
Since these complaints relate to the administration of a United States penitentiary by a federal official, we agree with the district court that they could not be maintained under 42 U.S.C. § 1983. However, we believe, and the Government concedes,1
2that these complaints state causes of action against a federal official under 28 U.S.C. § 1361,2 and they will be remanded to the district court for further proceedings.
We begin our belief discussion of some of the criteria established in the treatment of such cases, with the oft-quoted phrase by the United States Supreme Court in Price v. Johnston, 334 U.S. 266 at 285, 68 S.Ct. 1049 at 1060, 92 L.Ed. 1356:
“Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”
In our case of Tabor v. Hardwick, 224 F.2d 526, 5 Cir., 1955, Judge Rives stated for this Circuit:
“The control of federal penitentiaries is entrusted to the Attorney General of the United States and the Bureau of Prisons, who, no doubt, exercise a wise and humane discretion in safeguarding the rights and privileges of prisoners so far as consistent with effective prison discipline. Unless perhaps in extreme cases, the courts should not interfere with the conduct of a prison or its discipline.” (Citations omitted.) 224 F.2d at 529.
In similar cases involving state penitentiaries, the federal courts have recognized that prison discipline is an executive function with which the judi[68]*68cial branch ordinarily will not interfere, but have upheld the right to relief from religious persecution.
The Second Circuit has dealt with this problem on several occasions, and the district court for the Southern District of New York stated in United States ex rel. Washington v. Fay, 217 F.Supp. 931, D.C.N.Y.1963, that thirteen suits were filed by Muslims in the Northern District of New York by state prisoners, five in the Western District, and several in the New York state courts.
In Pierce v. LaVallee, 293 F.2d 233, 2 Cir. 1961, the court remanded for trial an extreme case in which it was alleged that prisoners were being punished solely because of their religious beliefs.
“Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category. See Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Fol-lett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81. As the Supreme Court has there pointed out, freedom of religion and of conscience is one of the fundamental ‘preferred’ freedoms guaranteed by the Constitution. We must approach decision with that admonition in mind.” 293 F.2d at 235.
The ultimate disposition of Pierce involved no interference by the court with prison discipline. Pierce v. La Vallee, 319 F.2d 844, 2 Cir. 1963; cert. den. 374 U.S. 850, 83 S.Ct. 1913, 10 L.Ed.2d 1070, 1963.
Exhibits and testimony in the trial record were summarized in detail by the court in Sostre v. McGinnes, 334 F.2d 906, 2 Cir. 1965; cert. den. 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96. In its discussion of many cases involving “Black Muslims”, the court paints a sorded picture of the movement’s history of violence and threat to prison discipline, caused primarily by its teachings of racial hatred as an essential part of the faith. After conceding that the Muslim group has some characteristics of a religious sect, the court states:
“No romantic or sentimental view of constitutional rights or of religion should induce a court to interfere with the necessary disciplinary regime established by the prison officials.” 334 F.2d at 908.
“The problem presented by the Muslim group is not whether they should be permitted to have congregational services, a minister, religious literature, but rather, under what limitations protective of prison discipline they should be permitted these rights.” 334 F.2d at 911.
Apparently the officials at the Atlanta penitentiary have had unhappy experiences with their Muslim inmates in the past. The Seventh Circuit, in Cooper v. Pate, 324 F.2d 165, 7 Cir. 1963, an action by an Illinois state prisoner, took judicial notice of offical or accredited social studies of the Black Muslim Movement, one of which stated:
“Federal and State prisons continue to have serious problems involving Muslim inmates. * * * Muslim violence also took place at Federal prisons in Terre Haute, Ind., and at Atlanta, Ga.,” 324 F.2d at 167.
The court proceeded to affirm the district court’s judgment of dismissal for failure to state a claim on which relief could be granted, but was reversed per curiam by the Supreme Court which stated:
“Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it. See Pierce v. LaVallee, 293 F.2d 233 (C.A. 2d Cir.); Sewell v. Pegelow, 291 F.2d 196 (C.A. 4th Cir.).”
Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030, 1964.
The Sewell case cited by the Supreme Court, as well as Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171, 1961,
[69]*69allowed federal prisoners sentenced in the District of Columbia to bring similar actions on the theory that the District of Columbia is a state or territory within the civil rights statute, 42 U.S.C. § 1983.
A federal prisoner at the Lewisburg, Pennsylvania, penitentiary brought an action to enforce his alleged rights as a Muslim, and the parties agreed that it should be considered as a civil action under 42 U.S.C. § 1983. Desmond v. Blackwell, 235 F.Supp. 246, D.C.Pa.1964. The district court, after noting the movement’s impressive history of inciting riots and violence, found that the administration of the prison by the responsible authorities was reasonable, justifiable and neither arbitrary nor capricious, and the petition was denied, after hearing. The court quotes from the opinion of District Judge Brennan in Pierce v. La Vallee, 212 F.Supp. 865, 869, D.C. N.D.N.Y.1962:
“In our zeal for the protection of freedom of religious belief and practice, the particular circumstances involved may not be overlooked. A large prison population is committed to the custody of a minority of prison employees and authorities. Discipline is necessary for the protection of both the inmates and the public. Prison discipline may on occasions impinge upon fundamental rights. That a public officer has or will violate the constitutional safeguards of the freedom of religion, in this court’s opinion must be established by convincing evidence. Such a charge is easy to make in an unverified complaint but the charging party must support it by more than inference or conjecture.”
We conclude, therefore, that the district court should grant a hearing to these Appellants, each of whose petitions states a cause of action under 28 U.S.C. § 1361. The judge can then determine if the prison officials have violated Appellants’ right to possess their Muslim beliefs and if the rules and regulations imposed on these prisoners are reasonable and justifiable in the administration of a large prison population, maintenance of discipline, and control of any dangers and hazards presented.
We note that at least two of the Appellants have been transferred from the Atlanta penitentiary, and on remand the district court may determine that their cases are moot.
The judgments of dismissal are reversed and the cases are remanded for further proceedings not inconsistent herewith.3