(concurring) :
I concur in the affirmance of the judgments below and in the opinions of my brothers Smith, Kaufman, Feinberg and Oakes. And see my statement filed in Rodriguez v. McGinnis et al. 451 F.2d 730 at 733.
J. JOSEPH SMITH, Circuit Judge (concurring);
I concur in the affirmance of the judgments below and in the opinions of my brothers Kaufman, Feinberg and Oakes. As indicated in my dissent to the panel opinion in Katzoff, 441 F.2d 558, 560, I would not hold that either abstention in deference to the state courts or exhaustion under the requirements of 28 U.S.C. § 2254(b) in habeas corpus actions may bar a prisoner from his choice of a federal forum in a civil rights action. I had thought that this was reasonably plain from McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L.Ed.2d 1319 (1968), and our own course in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.1971). Wilword-ing v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418, Dec. 14, 1971, bolsters that view.
Moreover, I question the desirability of even attempting to lighten our burden *82by stifling or delaying prisoners’ complaints of unconstitutional abuse. It may be an onerous burden, especially in the districts where large state prisons are located. Many petitions are poorly prepared, confusing and • mendacious. They do take the time of busy courts. But these cases now before us demonstrate that among them are some of substance, a circumstance which makes the effort worthwhile. It would be far better to provide more assistance in the districts which contain Attica and the other large institutions giving rise to these issues than to deny redress within the federal court system for deprivation of civil rights.
IRVING R. KAUFMAN, Circuit Judge (concurring):
The question which was presented to this court in banc is whether a state prisoner must exhaust state judicial remedies before he can bring an action for equitable relief under 42 U.S.C. § 1983, where his complaint charges that state prison officials have deprived him of fundamental personal rights. My unwavering answer to that question was that exhaustion is not required. Moreover, I agreed with Chief Judge Friendly that it was appropriate to dispose of these cases without opinions because of the Supreme Court’s clear and unconditional holding in Wilwording v. Swen-son, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 2d 418 (1971). Since my brothers have chosen to file opinions explaining their positions, I believe it is necessary for me to state the reasons for the views I hold.
In Wilwording the Supreme Court instructed that: “State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs.” This pronouncement was based on its decisions beginning with Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L. Ed.2d 492 (1961), where the Supreme Court held that the federal remedy provided by § 1983 “is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” See also McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L.Ed.2d 622 (1963); Dami-co v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). I note also that Wilwording emphasized that the result in no way depended upon the inadequacy of state remedies. Quoting from Houghton v. Shafer, id. at 640, 88 S.Ct. at 2120, it added: “in ‘any event, resort to these remedies is unnecessary.’ ”
I believe, however, that I should state candidly that I did not construe Wil-wording as a ground breaking decision. The opinion instead indicates that Court’s clear deference to the doctrine of stare decisis. See Monroe v. Pape, 365 U.S. at 192, 81 S.Ct. 473 (Harlan, J„ concurring). And it was our adherence to the principles gleaned from the earlier Supreme Court decisions that led us to conclude in our recent in banc decision in Sostre v. McGinnis, 442 F.2d 178, 182 (2d Cir. 1971), that exhaustion of state legal or equitable remedies is not a prerequisite for a state prisoner to maintain a § 1983 action.
I do not intend to argue with statistics indicating that prisoner petitions are on the rise; nor shall I pretend that this condition is pleasing to judges. But I cannot believe that federal jurisdiction in cases involving prisoner rights is any more offensive to the state than federal jurisdiction in the areas of police procedures for search, arrest and detention, Monroe v. Pape, supra, or education, McNeese v. Board of Education, supra, or welfare, Damico v. California, supra, or public housing, Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir.1968). I can think of no reason why the question of prison administration should be classified as one of greater or more peculiar state concern than the instances to which I have just referred. In any event, neither of the grounds articulated is a tolerable basis for declining jurisdiction where a prisoner specifically alleges facts indicating a callous disregard of his basic *83human and constitutional rights, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), or for reworking accepted principles of federal jurisdiction in one sweep of the judicial pen.1
The Supreme Court’s decision in Wilwording will not lead to the subversion or circumvention of the habeas corpus exhaustion requirement, codified in 28 U.S.C. § 2254(b), which is concerned with prisoner challenges to the validity of state court convictions or sentences. See Sostre v. McGinnis, 442 F.2d at 182. See also Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 172-173 (1948). Collateral attack on a final state court adjudication is toto cáelo from an untried constitutional claim unrelated to a prior proceeding. Under these circumstances, I see no basis for radically expanding the impact of § 2254(b) or, to put it another way, for concluding that Congress intended by that section to carve out an exception to § 1983 for state prisoners challenging an invasion of their constitutional rights during confinement and stating a valid claim for equitable relief. Indeed, the sua sponte construction by the Supreme Court of Wilwording’s petition as a complaint under § 1983 clearly articulates that state prisoners alleging deprivation of constitutional rights by prison officials are not forced to mold their claim for relief in the form of a petition for a writ of habeas corpus. I find it difficult to believe that the Court, specifically confronted with the alternative modes of pleading, overlooked or did not consider fully the interaction of 28 U.S.C. § 2254(b) and 42 U.S.C. § 1983.2
. I fully agree with my brother Friendly, for the reasons stated in his opinion, that abstention would be wholly inappropriate here.
. I agree with the views expressed by my brothers in their separate concurrences with this opinion.