OPINION OF THE COURT
ALDISERT, Circuit Judge.
In this appeal we are confronted with the increasingly recurrent claim that the civil rights of appellant, an inmate of a state penal institution, have been violated by prison officials. The mounting frequency of civil rights claims, under 42 U.S.C. § 1983, in the federal courts cannot escape attention. Nor can the phenomenon that a large percentage of these complaints, drafted pro se by prisoners lacking the perspicacity or restraint of professional draftsmen, are improvidently filed.
Appellant, while confined at the State Correctional Institution at Dallas, Pennsylvania, filed this action against the state Commissioner of Correction and the Dallas superintendent. Invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), appellant alleged a galaxy of constitutional infringements couched in broad, conclusory language. Included were the charges that the prison authorities had denied him "the right kind of [medical] treatment" by transferring him to an institution where adequate care was unavailable, that they discriminated against him because he is a Jew, denying him the services of a rabbi, and that prison regulations relating to the preparation of legal papers denied him due process. The Dallas superintendent responded with a motion for summary judgment supported by affidavits, and upon finding no genuine issue of any material fact, the court below dismissed the complaint.
In judging the propriety of the dismissal, we begin with a review of the legislation on which appellant bases his claim for relief. Section 1983 of Title 42 provides:
It is clear from the statute's express language that, like federal habeas corpus in this respect, a civil rights complaint must portray specific conduct by state officials which violates some constitutional right of the complainant in order to state a claim for relief. In the case of a prisoner, the determination of what constitutes an actionable claim may become difficult since imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society. The loss of these rights has been recognized by the Supreme Court as "a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948).
Stated simply, a man in jail is not a free man; the denial of his right to drink fully from the cup of freedom is the very hypostasis of confinement. For reasons grounded more in historic precedent and expediency than justified by even the most primitive notions of social rehabilitation, imprisonment as a form of punishment persists. As the eminent psychiatrist, Karl Menninger, observes, "the idea of punishment as the law interprets it seems to be that inasmuch as a man has offended society, society must officially offend him. It must deliver him a tit for the tat that he committed * * * [Society must] deprive a man of decent social relationships, palatable food, normal friendships and sexual relations, and constructive communication. * * *"
But so long as incarceration as a form of punishment continues, we are required perforce to recognize that, archaic and indefensible though it may be, its objective is to circumscribe certain activities and opportunities not only available in, but also characteristic of, an
To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community. The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials.
At the same time, however, the federal courts have been sensitive to certain particularized complaints, foremost among which have been allegations of religious discrimination. In such cases, the courts have not hesitated to intervene where prison officials have unreasonably attempted to curtail the practice of religion by prison inmates. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L. Ed.2d 1030 (1964); Walker v. Blackwell, 360 F.2d 66 (5 Cir. 1966); Pierce v. LaVallee, 293 F.2d 233 (2 Cir. 1961). Usually the cases have involved a denial of the use of available services or facilities or materials. But the test of what actions are unreasonable restraints on the exercise of religion has of necessity proceeded on an ad hoc basis. In Long v. Parker, 390 F.2d 816, 822 (3 Cir. 1968) this court, speaking through Judge Forman, said: "To justify the prohibition of religious literature, the prison officials must prove that the literature creates a clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution."
Appellant's contention is more sophisticated. He is alleging a violation of the Free Exercise Clause because the state has not supplied him with a clergyman of his faith. Thus we have the antithesis of the cases arising under the Establishment Clause: This is not a charge that the state is supporting a religion, but a complaint that it is not.
The requirement that a state interpose no unreasonable barriers to the free exercise of an inmate's religion cannot be equated with the suggestion that the state has an affirmative duty to provide, furnish, or supply every inmate with a clergyman or religious services of his choice. It is one thing to provide facilities for worship and the opportunity for any clergy to visit the institution. This may be rationalized on the basis that since society has removed the prisoner from the community where he could freely exercise his religion, it has an obligation to furnish or supply him with the opportunity to practice his faith during confinement. Thus, the Free Exercise Clause is satisfied.
But, to go further and suggest that the Free Exercise Clause demands that the state not only furnish the opportunity to practice, but also supply the clergyman, is a concept that dangerously approaches the jealously guarded frontiers of the Establishment Clause. As expressed in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947): "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State'."
Moreover, there is the consummate problem of the sheer number of religious sects. In 1942, it was said: "There are in the United States more than 250 distinctive established religious denominations. In the State of Pennsylvania there
We do not reach the question because appellant's allegations of discrimination were not substantiated in fact. He alleged that the Dallas officials have denied Jewish inmates a rabbi "in regular attendance although Catholic and Protestant Chaplains are provided for." But in answering affidavits, the prison superintendent explained:
With regard to providing Jewish inmates with the services of a rabbi, the superintendent also declared:
We conclude, as did the court below, that the superintendent's affidavit effectively and conclusively refuted appellant's claim of religious discrimination. As we said in Lockhart v. Hoenstine, 411 F.2d 455, 459 (3 Cir. 1969), where the validity of summary judgment against a pro se civil rights complainant was also in issue: "It is no legitimate function of the court to assume the existence of a genuine issue of material fact when in truth none exists." Summary judgment was therefore appropriate to dispose of appellant's claims of religious discrimination.
We also conclude, for reasons different from those expressed by the district court, that summary judgment was an appropriate disposition of appellant's claims of inadequate or inappropriate medical care. As noted previously, an essential element of an actionable civil rights complaint is the establishment of a constitutional deprivation. This, of course, suggests the question: Under what circumstances may it properly be said that allegations of medical malpractice by prison administrators attain constitutional proportions?
In Commonwealth ex rel. Gatewood v. Hendrick, 368 F.2d 179, 180 (3 Cir.
These cases teach that an allegation of negligent conduct by a state public official is not sufficient, in and of itself, to bring a claim within section 1983. More is needed than a naked averment that a tort was committed under the color of state law; the wrongdoing must amount to a deprivation of a right, privilege, or immunity secured by the Constitution and the laws of the United States. And this must be set forth with specificity; mere argumentative and conclusory allegations will not suffice.
The requirement of some semblance of factual specificity becomes necessary if the federal courts are to exercise jurisdiction under the Civil Rights Act. Without a proper allegation of constitutional deprivation, an action requesting damages for personal injuries sounds only in common law or statutory tort and, because no federal interest is involved, is triable only under state law in a state court.
It is only where an inmate's complaint of improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth Amendment's prohibition of such punishment that a colorable constitutional claim is presented.
We perceive no such unconscionable or intolerable conduct alleged here. On the contrary appellant's claim amounts to no more than an averment that the facilities at Dallas are inferior to those at Philadelphia in providing him the care he requires. Accepting the veracity of these allegations, as we must on a motion for summary judgment, they nonetheless lack any semblance of stating a claim of constitutional deprivation.
Appellant also attacks prison rules which prohibit an inmate from maintaining a private law library in his cell, and adds the frivolous claim that failure to provide him with a typewriter is a constitutional deprivation. The superintendent stated in his affidavit:
Access to the courts is guaranteed by the due process clause of the Fourteenth Amendment. But prison regulations which reasonably limit the times, places, and manner in which inmates may engage in legal research and preparation of legal papers do not transgress this constitutional protection so long as the regulations do not frustrate this access. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1968); see also DeWitt v. Pail, 366 F.2d 682 (9 Cir. 1966); Walker v. Pate, 356 F.2d 502 (7 Cir.), cert. den. 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678 (1966); Kirby v. Thomas, 336 F.2d 462 (6 Cir. 1964). Viewed from this perspective, and considered in the light of the superintendent's explanations, we find no merit in appellant's attack on the prison regulations.
The judgment of the district court will be affirmed.
SEITZ, Circuit Judge, concurs in the result.
Preliminary relief granted 12 Motion to dismiss denied 12 Trial or hearing ordered 2 Summary judgment for defendant or motion to dismiss granted 67 Judgment for plaintiff after hearing or trial 5 Judgment for defendant after hearing or trial 2
Considering that some 67% of the cases reported in the Federal Supplement were subject to summary disposal, one could easily visualize an even more dramatic figure among the unreported decisions where a short memorandum is often employed to dismiss an action.