(dissenting).
I have never been, and am not now, a believer in judicial dissent for the mere sake of dissent. These cases raise, presently and potentially, such serious questions affecting the power of the United States to administer and control its prisons that I feel compelled to state the reasons which make it impossible for me to join in reversing the District Court.
I agree that when one presents in his own behalf a petition which clearly merits some relief, he ought not to fail solely because he misconceives the nature of the proceeding or mislabels his petition. The court does have the discretionary right to treat a petition according to its substantive values, despite the fact that an untutored petitioner has mistakenly designated it as a petition for a clearly unavailable form of relief. Roberts v. Pegelow, 4 Cir., 1963, 313 F.2d 548, 550. Note, however, that the petition must clearly merit some relief and the right to treat the petition according to its substantive values, under such circumstances, is discretionary. I do not believe the petitions here clearly merit relief, nor do I feel that the District Court abused its discretion in failing to consider these petitions as if brought *70under 28 U.S.C.A. § 1361. The petitions were brought under the Civil Rights statutes, clearly inapplicable, and there was no suggestion from any source that the District Judge consider them under Section 1361. This is an afterthought, raised for the first time in this court. And at that, the Government, in a memorandum which we requested, states that the applicability of 1361 is “not free from doubt”.
Laying aside the matter of the District Court acting of its own volition, it has been held that for relief to be granted under this section conferring original jurisdiction upon federal courts to compel an officer or employee of the United States to perform a duty it must be originally relied upon in the trial court, and such contention cannot be invoked for the first time on appeal to sustain jurisdiction. Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, 10 Cir., 1963, 331 F.2d 767.
In its supplemental memorandum, the Government states, “although the matter is not free from doubt, we conclude that Section 1361 of Title 28 authorizes such suits and permits the district courts to entertain them.” In my view, any concession by the Government involving so serious a matter as the safe and orderly administration of its penal facilities, although entitled to serious consideration, nevertheless leaves us free as a Court to exercise our judgment in the matter, particularly when the concession confesses doubt at the outset.
In the absence of arbitrary mistreatment or clear deprivation of constitutional rights which could be observed without danger to peace, safety, and efficient administration, I believe that it is not, and should not become, the business of the courts to work out, revise, or supervise, the administration of rules and regulations governing any activity, religious or otherwise, in any prison, state or federal, Sostre v. McGinnes, 2 Cir., 1964, 334 F.2d 906, 911. I emphatically agree with what this Court said in Tabor v. Hardwick, 224 F.2d 526, 529, that “unless perhaps in extreme cases, the courts should not interfere with the conduct of a prison or its discipline (citing numerous cases).” Conceding the possibility, although not the probability, that such extreme cases might arise in the highly enlightened methods by which the modern federal penal system is administered, I can see nothing to justify judicial intercession in the cases now before us.
I strongly agree with what was said in Roberts v. Pegelow, supra:
“Since management of the penal institutions has been placed by the Congress in the Executive Department, and the Executive Department is solely responsible for the security of the prisoners and of the officials and others working within the prison, they must be allowed to exercise a largely unfettered discretion in deciding what security measures are appropriate and, with respect to each prisoner, what relative freedom he safely may be allowed. If one is given greater freedom of movement than another, or if one becomes a trusty, while many do not, such routine matters of prison administration ought not to become the subject of judicial controversy.”
In that case, the Court further stated that so long as prison imposed punishment is not so unreasonable as to be characterized as vindictive, cruel, or inhuman, there is no right of judicial review of it. The language speaks of punishment, but the principle should equally be applicable to any element of prison control and administration.
Leaving aside any question of improvident judicial interference with functions exclusively committed to the discretion of the Executive Department, we should not overlook the significant consideration that we are here talking about the use of a mandamus statute. The statute provides that the action shall be “in the nature of mandamus”. The use of this language by the Congress was really inescapable because the action is to be invoked “to compel” the performance of a duty owed to the plaintiff. The statute confers no jurisdiction on any court *71to either direct or influence the exercise of discretion properly vested in any officer or agency of the United States. See-bach v. Cullen, 224 F.Supp. 15, 338 F.2d 663, cert. den. 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268. The law could not possibly be otherwise, unless the judiciary wishes to take unto itself, in the ultimate, the functions of the Executive Department.
In Sostre v. McGinnis, supra, in which the prisoner petitioners were “Muslim” inmates of a state penitentiary, the court said:
“It is of little use for us to announce that because of the religious content of the Muslims’ beliefs and practices they must be given the right, even in prison, to follow the dictates of their faith, if we find it necessary immediately to add, ‘Of course all these rights are subject to such reasonable rules and regulations as the authorities impose.’ ”
This is the nub of the whole matter and makes mandamus, in my opinion, totally inapplicable to this case.
The file in this Court in No. 22,374 and No. 22,377 contains a photocopy of the written instructions of the Warden of the Atlanta Penitentiary dated November 18, 1964, directing that a designated conference room be set aside from 10 A.M. until 10:45 A.M. each Sunday morning as a meeting place for bona fide members of the Muslim faith, and further providing that the Islamic Muslim daily prayer book and copies of the Kuran be furnished on request to bona fide members of the faith.
It was further directed that a staff member be in continuous attendance during the regularly scheduled services and the group will not be permitted to preach racism or hate against'any other religious sect or ethnic group.
It is elemental that we are entitled to take judicial notice of our own records and files. Thus we know that all these petitioners have been given the relief above indicated, making even less advisable the invocation of mandamus.
I see nothing wrong with the Warden’s restrictions against preaching racism or religious hatred. Racial hatred and religious intolerance are at total odds with the Constitution of the United States. It necessarily follows that no court is required to lend its assistance to those activities, even if they be pursued under the guise of religion, Cf. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 87 L.Ed. 645, reh. den. 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090, wherein it was stated that “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease * * *»
I would affirm the Judgment of the District Court.