(concurring):
I concur both in the result and in so much of Judge Lumbard’s opinion that this opinion would be superfluous if I did not rather fundamentally disagree with the language of two parts of that opinion.
First, I believe it would be entirely appropriate — indeed mandated by the due process clause — for a federal court, absent state action, to require basic procedural safeguards in connection with prison disciplinary proceedings or to regulate conditions under which inmates are held in segregation or observation cells. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. *1361971), cert. denied, 405 U.S. 978 (1972), does not go so far as to hold otherwise although it rejected the orders made in that case. 442 F.2d at 194, 198. Since Sostre was decided, other courts have exercised under varying circumstances rather broad supervision of particular prison systems to assure — with rules by court order — that prisoners not be subjected to the “capricious and arbitrary actions of prison officials,” as decried by Sostre, supra, at 198. Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971), The case is so old, however, and so much has transpired since it was initiated — including but not limited to the adoption of new rules by the New York Department of Correctional Services and amendment of the New York Correction Law, as set forth in Judge Lumbard’s opinion — that it does not seem to me to be an appropriate vehicle for federal court promulgation of minimal correctional standards. Under appropriate circumstances, however, judicial intervention may be clearly warranted — nay, required — and this it seems to me Judge Lumbard’s opinion does not make sufficiently clear. Thus, my own views as to federal judicial power accord closely with those of Judges Waterman, Smith and Feinberg, respectively concurring or concurring and dissenting in Sostre, supra, 442 F.2d at 206 and 207, although I do not believe this to be the appropriate case for its exercise.
I believe that Judge Lumbard’s opinion correctly interprets Sostre in reference to censorship and communication by an inmate with his counsel, even though cases since Sostre have tended to take a view somewhat more protective of inmate rights. E. g., Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Smith v. Robbins, 328 F.Supp. 162 (D.Me.1971). In view of the new policy of the Department of Correctional Services to refrain from opening and reading inmate-attorney mail, however, this is plainly not the case in which this aspect of Sostre, 442 F.2d at 199-201, might bear re-examination. Given appropriate circumstances, however, I believe this court should not hesitate to accept the invitation of Sostre to expound “a more precise delineation of the boundaries of this protection . . .,” 442 F.2d at 201, and if in doing so we necessarily draw them somewhat differently from Sostre itself, that is not impermissible. See Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1972).