(dissenting):
State control of prisoners convicted under its laws and still in its custody under judgments of its courts is radically infringed, if not defeated, by today’s majority opinion. For me it affronts statutory and decisional commandments against Federal disruption of State penal systems. Hence I cannot here join my brothers.
Appellants, inmates of State correctional institutions, brand as unconstitutional the local pattern of parole procedure. In my view they should be required to resort first to their respective State courts, with the right afterwards, if unsuccessful there, to assert in the United States District Court, by way of habeas corpus, their present claims. Here the reverse course is pursued: the State tribunals are skirted and these suits commenced in the Federal courts. The short-cut is to plead the suits under the Civil Rights Act of 1871, 42 U.S.C. § 1983.1
The several District Courts dismissed the suits on varying grounds. However, the results were altogether correct and I would affirm in each instance.
The appellants flout the precept of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) avowing the policy and mandate of Congress, as announced in 28 U.S.C. § 2254(b)2, to be that complaints like the present ones must first be taken to the State courts. The majority would escape Preiser on the premise that the instant suits were saved from its constriction by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Dissection of the two decisions will, I think, reveal the conclusion untenable.
To demonstrate fully the infirmity of the reversal now ordered, reiteration of some of the facts in suit is unavoidable. However, there is no occasion to descant, as the majority does, on whether Fourteenth Amendment due process is a requisite of hearings on the suitability of inmates for parole; for my conclusion this right may be conceded arguendo. The only question is the proper procedure and the proper forum. To begin, it is to be noted that the plaintiffs are not asking damages; they are not pressing for parole; they are not attacking the parole systems; they are not complaining of the refusal of parole. The burden of their complaints is a constitutional assault upon procedures for pre-parole consideration of parole eligibles. A declaratory judgment of invalidity of this earlier step in parole consideration and an implementing injunction against it are prayed.
The grievances in each instance may be summed as follows: the prisoner was granted no interviews, or at least none lasting more than a few minutes; he *736was not apprised of any objection to his release; no opportunity was afforded to verify the correctness of, or comment upon, any adverse information in his prison record; no chance was given him to say why he thought himself deserving of consideration for parole; no criteria for board judgment was outlined to him; and if his application were denied, only the decision was conveyed to him, unaccompanied by the reasons for the determination or a reference to disqualifying evidence.
In the North Carolina case the District Court decreed that relief in the premises was not available under § 1983 to a State prisoner. Its view was that § 1983 is not a means for evaluation of State parole procedures. In South Carolina the District Judge, following Preiser, dismissed the action, noting plaintiffs’ failure to exhaust remedies available under State law and concluding that habeas corpus was the only means of relief open to the complainant.
Preiser makes quite clear that, because of the mandates of 28 U.S.C. § 2254(b), the sole remedy in the Federal courts for the unconstitutional detention of persons under State court judgments is habeas corpus, after exhaustion of the remedies, if any, provided by the State to protect their rights. True, Preiser dealt with claims for immediate release from custody, but its teaching is broad enough to exclude the plaintiffs’ attempts to sue at once in § 1983. To forego initial recourse to the State authorities would be to disregard the fundamental and compelling reason of the decision: that § 2254(b) was intended to prevent friction between the States and the Federal government in adjudicating the rights of State prisoners. Permitting recourse to § 1983 disrupts this accommodation, and so is impermissible here.
This procedural pattern logically embraces solution of the grievances now pleaded. ■ They relate wholly to detention of persons under State court judgments. They do not touch upon any other circumstance of imprisonment, such, for example, as the physical conditions or treatment in the custody. A parole hearing although it may be only an intermediate consideration of an inmate’s preparedness for parole — and not a final determination of release or retention — is nonetheless an event in the chain of ultimate detention. It is intended to, and eventually may, affect the duration of the incarceration, and this possibility puts it within the compass of habeas corpus. Preiser wrote directly to the point:
“So, even if restoration of respondents’ good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself. It is beyond doubt, then, that the respondents could have sought and obtained fully effective relief through federal habeas corpus proceedings.” (Accent added.) Preiser v. Rodriguez, supra, 411 U.S. at 487-488, 93 S.Ct. at 1835.
Preiser squarely refuted any suggestion that the language of § 1983 would permit the appellants to employ it as they now attempt. The opinion summarizes:
“In short, Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.” Id. at 490, 93 S.Ct. at 1837. (Accent added.)
Again:
“The rule of exhaustion in federal ha-beas corpus actions is rooted in considerations of federal-state comity. . . .
“It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons. . . . The strong considerations of comity that require giving a state court system *737that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” Id. at 491, 93 S.Ct. at 1837. (Accent added.)
Notwithstanding these deliberated enunciations the majority here volunteers the proposition that only suits challenging the constitutionality of physical confinement and demanding release or lesser detention are within the exhaustion requirement of § 2254(b). As just demonstrated, this authenticated deduction does violence to the words of the Supreme Court.
It is not questioned now that both North Carolina and South Carolina provide remedies quite adequate and available, within the intent of § 2254(b), to the respective appellant prisoners, either through administrative agencies or State court actions. Both States through their counsel have told this court that remedies of review exist, and there is no contradiction of these representations. At least the appellants were bound to make the effort. Furthermore, even if there is no State provision for relief, the appellants may seek Federal habeas corpus. Under Preiser absence of State remedies does not in any event authorize recourse to § 1983.
Preiser was not modified by Wolff in the former’s exalting of the State remedy over an action under § 1983. The distinction was simply and explicitly laid out in both Preiser and Wolff. It is this: that if no damages are claimed, § 1983 is not invocable; if damages are demanded, the claim is triable under § 1983. But even then issues other than damages are entertainable under § 1983 only so far as they are ancillary to the establishment of damages. The reason for reserving this utilization of § 1983 is that damages are not recoverable in habeas corpus.
Damages, to repeat, were not sought in the instant causes. They were not asked in Preiser, and that is the very ground on which Preiser barred resort to § 1983. Damages were sued for in Wolff and that was the very point for its allowance of § 1983 use.
This syllogism is confirmed in Preiser:
“The answer to this contention [res judicata as to damages] is that the respondents here sought no damages, but only equitable relief — restoration of their good-time credits — and our holding today is limited to that situation. If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release — the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies.” 411 U.S. at 494, 93 S.Ct. at 1838. (Accent added.)
The syllogism, is paralleled in Wolff:
“The complaint in this case sought restoration of good-time credits, and the Court of Appeals correctly held this relief foreclosed under Preiser. But the complaint also sought damages ; and Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings. 411 U.S., at 499, n. 14, 93 S.Ct. [1827] at 1841. Respondent’s damage claim was therefore properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time, for flagrant or serious misconduct. Such a declaratory judgment as a predicate to a damage award would not be barred by Preiser; and because under that case, only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of an-*738ciliary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.” (Accent added.) Wolff v. McDonnell, supra, 418 U.S. at 554, 94 S.Ct. at 2974.
In § 2254(b) Congress enjoined upon the Federal courts the obligation of honoring comity when entering State provinces. Accordingly, the present appellants should be remanded to the appropriate State agencies or courts, for the nub of these controversies is primarily a State matter, and whenever resort is to a court then habeas corpus is the exclusive remedy.
I would affirm the District Court in both appeals.
. § 1983. “Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
. § 2254(b). “State custody; remedies in Federal courts
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(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”