(concurring) :
I agree with Judges Kaufman and Smith that under the authorities there is simply no basis for requiring these state prisoners to exhaust state judicial remedies as a condition to bringing an action for equitable relief under 42 U.S. C. § 1983. And I further agree with them and with Chief Judge Friendly that application of the abstention doctrine is not appropriate.
Were those my complete views on these cases, I would resist the temptation to add yet another opinion and would simply concur since my brothers have admirably and succinctly covered those issues. However, there is a further point — perhaps implicit in their opinions — that I believe should be made. If the already over-burdened federal courts are being overwhelmed by frivolous prisoner petitions, it surely is desirable to find some way of coping with that problem in a manner that is nonetheless fair and just to prisoners, whose claims of mistreatment have too often been ignored in the past. But the correct way to reach that result is not for us to indulge in judicial legislation but for Congress to enact an appropriate statute, which could take into account the conflicting policy considerations and could include compromises, limitations and safeguards that we as a court cannot legislate.
MANSFIELD, Circuit Judge(concurring) :
I concur in Judge Friendly’s opinion. I would add that prior to Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (U.S.Dec. 14, 1971) (per curiam), my view was that even though there might be cases where a state prisoner’s complaint, purportedly brought pursuant to § 1983, could not be treated as a petition for habeas corpus, a federal court, upon its finding that the prisoner was seeking equitable relief and was afforded an adequate state court remedy (as here), had the discretionary power as a court of equity to defer ac*84tion pending the prisoner’s application to the state court for relief. See Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944); Alabama v. United States, 304 F.2d 583, 590 (5th Cir.), affd. per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962); Pu-gach v. Dollinger, 277 F.2d 739, 742 (2d Cir. en banc 1960), affd., 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961). Upon the prisoner’s showing that the state would not offer a reasonably prompt and fair hearing, on the other hand, the federal court would be required to proceed.
The competence of New York state courts to apply federal constitutional principles is not disputed. In most instances their facilities are closer to the state prison in which the prisoner-plaintiff is located (and where regular state court sessions are held) than is the nearest federal court. Furthermore the state court is in a position to insure greater cooperation on the part of essential state personnel (e. g., local and state police, clerks, sheriffs, court reporters and officers of state and county departments) than is the federal court. For example, unless Wilwording is limited, suits for injunctive relief by prisoners of one of New York’s largest institutions, Clinton Prison, Dannemora, Clinton County, must be heard by the United States District Court for the Northern District of New York, which is located in Albany, 180 miles away. The single federal judge, with only two holding cells and two deputy marshals at his command, will face the necessity of bringing prisoner-plaintiffs and other prisoner-witnesses on a 360-mile round trip in federal custody. By way of contrast, the New York Supreme Court for Clinton County, with no appreciable calendar problem, is equipped to hold court in a nearby county courthouse or in the prison itself.
The extent to which state prisoners’ habeas corpus petitions have been dressed up in a § 1983 suit of clothes, often merely with a view to the prisoner’s availing himself of the change of scenery offered by federal facilities, is attested by statistics compiled by the Administrative Office of the United States Courts. The 1971 Annual Report of its Director reveals (Table 14, 11-48) that from 1968 to 1971 state prisoners’ habeas corpus petition in the United States district courts increased 30%, whereas civil rights suits increased 170%, and that from 1970 to 1971 such habeas corpus petitions declined 7.6%, while such civil rights petitions increased 43.6%.
OAKES, Circuit Judge(concurring):
I concur in the affirmance of the judgments below and in the opinions of Judges Smith and Kaufman, agreeing as I do with the original reasoning of Judge Waterman in his dissent in Rodriguez v. McGinnis, 451 F.2d 730 (2d Cir., 1971), and Judge Smith in his dissent in Katzoff v. McGinnis, 441 F.2d 558, 560 (2d Cir. 1971). It is not my impression that the federal courts are being overwhelmed with frivolous prisoners’ petitions — indeed, many have been highly meritorious. But I agree with Judge Feinberg that if the courts were so burdened, judicial legislation is not the appropriate method of meeting the problem.
To the extent that the dissenting opinion of Judge Lumbard and the concurring opinions of Chief Judge Friendly and Judge Mansfield make arguments directed to the Congress that warrant further reply, that reply, it seems to me, may more appropriately be made in some place other than a judicial opinion. To the extent that those same opinions imply a request to the Supreme Court to reconsider and overrule its own line of cases sustaining jurisdiction, the most recent of which may be Haines v. Ker-ner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972), I would simply register my vehement disagreement.
TIMBERS, Circuit Judge, concurs in the opinions of Judges J. JOSEPH SMITH, IRVING R. KAUFMAN and FEINBERG.
*85LUMBARD, Circuit Judge (dissenting), with whom MOORE and HAYS, Circuit Judges, concur:
I dissent.
Three petitioners seek federal court orders which would direct state prison authorities to take action to correct allegedly unconstitutional treatment.
Michael Katzoff, formerly an inmate of Green Haven Correctional Facility serving a sentence of one to three years for possession of a dangerous weapon, complains that the state acted unconstitutionally in depriving him of good be-haviour time as punishment for recording offensive remarks in his diary.
Eugene Rodriguez, formerly an inmate of the Ossining Correctional Facility serving a term of one and one-half to four years for the crimes of perjury and attempted larceny, complains that the state unconstitutionally cancelled good time for either possession of contraband or refusal to disclose its source.
John Kritsky, presently an inmate of Clinton Correctional Facility serving a sentence of 15 to 18 years for the crime of armed robbery, complains of unconstitutional deprivation of good time because of his participation in an inmate strike at Auburn Correctional Facility.
All these actions were brought under 42 U.S.C. § 1983, and in each ease the district court granted relief to the petitioner. I would reverse the orders of the district courts and remand with directions to stay further proceedings pending a hearing of the claims in the state court.
Prior to Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418, decided December 14, 1971, I had hoped that these three cases could be resolved, consistent with Supreme Court authority, by a requirement of exhaustion of state remedies as a condition precedent to a cause of action in the federal courts under the Civil Rights Act by a state prisoner seeking equitable relief from allegedly unconstitutional prison conditions or sanctions. Wilwording suggests the contrary, but it dealt with an inmate in a Missouri prison and Missouri apparently makes no provision for hearing such cases in its courts.1 I still think there is room to hold that a district court in New York — which does provide an adequate remedy in its courts for the redress of legitimate prisoner complaints 2 — should refrain from hearing such a case until the state court has acted thereon, so long as on-going physical brutality is not involved, as it was in Inmates of Attica Correctional Facility v. Rockefeller, decided by this court December 1, 1971, 453 F.2d 12.
I am not unmindful that what the Court has said per curicum in Wilwording follows much that was said along the same lines in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), McNeese v. Board of Education, 373 U. S. 668, 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), and Houghton v. Shafer, 392 U. S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) . Only in Houghton, however, was the petitioner serving a sentence in a state prison, and it does not appear from the record what, if any, remedies were available to Houghton in the Pennsylvania state court. In any event, the Court did not pass on the considerations which seem to me to compel the conclusion that the federal courts should not hear these cases in the first instance where the state courts are ready, willing and able to give relief.
The resolution of differences between inmates and jailers in state prisons is *86peculiarly a matter of state interest and concern. These matters can better be determined by the state court which is nearby and available for immediate resolution of such disputes. For some years justices of the Supreme Court of the State of New York, the highest trial court of general jurisdiction, have held court in courtrooms within the confines of the prisons. Thus the petitioning prisoner and any necessary witnesses can be heard with a minimum of risk and expense. By contrast, a hearing in the federal courts requires that prisoners must be moved considerable distances under circumstances presenting a danger of escape and injury to members of the public, to say nothing of substantial expense to the state.
Recent unrest and dissatisfaction in New York state prisons reached a tragic climax at Attica Correctional Facility where a four-day inmate uprising took a death toll of 11 hostages and 32 inmates. Allowing a state prisoner the choice of being heard in a federal court would seem an obvious means of exacerbating relations between state prisoners and their jailers. Obviously the holding of a hearing at a distant federal court is a far greater interruption of prison life and routine than a hearing inside a state prison by a state judge. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), is a good example of what may frequently be involved in a federal court hearing. That case was tried before Judge Motley in the Southern District of New York during seven days of trial extending from Wednesday, October 29, 1969 to Friday, November 7, 1969. In addition to Sostre, who was brought from Walkill Correctional Facility, Walkill, New York, to testify, two other state prisoners were transported to the hearing from Green Haven Correctional Facility, Stormville, New York. The warden, the food service manager, a doctor, and eleven guards from Green Haven testified. Five guards from Attica Correctional Facility, Attica, New York, testified, as did one from Clinton Correctional Facility, Dannemora, New York.
If the federal courts must hear these suits and resolve factual issues, it is a clear invitation to state prisoners to frame complaints of alleged mistreatment so that they will, at the least, be afforded some vacation from the tedium of prison life.
It could hardly have been the intention of the Congress in enacting § 1983 that it would be the means whereby state prisoners would place state authorities on trial for the manner in which they were cared for and disciplined in state prisons. But there can be no doubt that it is becoming the fashion for state prisoners to bring these suits. The totals for state prisoner civil rights suits commenced in the federal courts of the Second Circuit for the past six fiscal years 3 tell the story—
1966 21
1967 62
1968 72
1969 138
1970 277
1971 585
All but 38 of the 585 cases filed in 1971 were filed in the four districts of New York. While these totals for state prisoner civil rights suits are still less than those for state prisoner habeas corpus petitions in the Second Circuit, which have risen from 571 to 813 in those same years, it should be borne in mind that a very high percentage of the ha-beas corpus petitions can be, and are, disposed of on the face of the petition or after submission of a paper record. By contrast, a very large percentage of Civil Rights Act cases can be disposed of only after a hearing at which the petitioner and others will be produced as witnesses. In the habeas corpus cases a record has already been inade in the state court, whereas civil rights cases al*87ways raise issues which have recently arisen and are wholly undetermined.
It is now quite clear that state prisoners are turning more and more to the Civil Rights Act to redress their grievances and for therapeutic relief, rather than to habeas corpus. They not only hope to get an earlier hearing but they also expect a vacation from prison confinement. Unless the district courts can, in the exercise of discretion, stay their hands pending determination of suit in those state courts which will hear the cases, the federal courts will find themselves in the business of running and regulating state prisons.
If the course I propose is followed, certainly it would still be open to the state prisoner to ask the federal court to examine his complaint de novo, upon a showing that the state court hearing had not been a full and fair one. Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C. § 2254(d).
For the above reasons, I would direct the district courts in the three cases before us to stay action until the state court has passed upon the matters complained of by these state prisoners.
. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 D.Ed.2d 41S (Dec. 14, 1971).
. See Civil Rights Law § 79-c, McKinney’s Oonsol.Laws c. 6, which was added in response to this court’s decision in Wright v. McMann, 387 F.2d 519 (2 Cir., 1967).
This amendment, “remedial in nature, designed to correct an imperfection in the prior law or to provide a remedy for a wrong if none previously existed, is to be liberally construed so as to spread its beneficial results as widely as possible . ” Marcelin v. Scott, 33 A.D.2d 588, 304 N.Y.S.2d 299, 300-301 (1969).
. These figures are a breakdown of the national totals reported in Table 14 in the 1971 Criminal Report of the Director of the Administrative Office of the United States Courts, prepared by the Division of Information Systems of the Administrative Office.