concurring:
I concur with the majority’s opinion because the case law establishes, even in the administrative and prison setting, an unflinching adherence to the rule of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that in § 1983 cases state remedies need not be exhausted.
Relaxation of the rule of Monroe might endanger the provision for an adequate remedy to victims of civil rights violations. Therefore, this rule must be safeguarded from relaxation except for the most clearly compelling policy reasons. Because the problems of prison discipline and administration could conceivably present such compelling reasons, I think certain aspects of this case need further emphasis.
I disagree with the majority’s view that the only thrust of the complaint is that a mailroom attendant improperly seized a publication. Although the record is not entirely clear on why the relator’s publications were not delivered, and there is some confusion as to the facts stated in the pro se complaint and supporting, sworn Request for Documents under Rule 34, the record indicates that the publications were withheld because they were obscene. The relator states in the complaint that “a slip came from the front office . . . saying that the books were found to be unacceptable and rated 3X. The book review committee never seen [sic] the books because I spoke to Mr. Crisler who is on the Committee.” Surely this official notification from the prison office is inconsistent with the view that a mailroom attendant simply stole the publications. The relator’s assertion in his Request for Documents that his magazine, Teeny Floppers, is “being held at front office” also indicates that official action has been taken regarding the publication. As the majority notes, Lightcap, the mailroom attendant, is alleged to have signed the relator’s name to a mail receipt without the relator’s knowledge. The majority fails to note, however, that the complaint states that Lightcap signed his own name along with that of Ricketts. This clearly militates against any implication of deceit or forgery.
According to the complaint, the books were ordered from Visual Adventures Co., but in an earlier suit attacking the constitutionality of the obscenity regulation, Rick-etts apparently claimed that the books withheld were entitled Visual Adventures and Candor in Love. Ricketts v. Bureau of Corrections, at 2, Opinion dated July 14, 1975 (Civ.No. 74-1173, M.D.Pa.). It is not clear whether the books involved in this case are the same as in the earlier case, as one book or magazine alleged to be withheld in the instant case is entitled Teeny Floppers. In his affidavit, the relator claims that the books were never declared obscene by the administrative community, but he never states that he sought review by that committee. Nonetheless, he seems to acknowledge that if there is a problem with the books, it is obscenity rather than some other category of banned books. The district court assumed that the books were withheld because they were obscene. United States ex rel. Ricketts v. Lightcap, at 2, Opinion dated May 5, 1976 (Civ.No. 75-1192, M.D.Pa.). This is not challenged in the relator’s brief, which quotes BC-ADM 814, providing that “receipt of publication shall be disapproved when the publications contain . . . [¡judicially defined obscenity.” If, in his brief, the relator were simply arguing that his publications were improperly seized or stolen, there would be no reason to refer to BC-ADM 814. Thus, contrary to the position taken by the majority, it seems to me that the relator is attacking the application of the obscenity regulation and publication screening procedures to specific publications.
*1234The majority admits that the rule not requiring exhaustion followed in this case is not fully consistent with the usual deference given to prison administrative procedures.1 I think that this is manifestly true and that the peculiar problems of prison administration and discipline require courts to show a degree of deference to prison procedures, even when the method of adjudicating constitutional rights is at stake. Indeed, this position is supported by the recent case of Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), in which the Supreme Court said:
“The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, 417 U.S., [817] at 822 [94 S.Ct. 2800, 41 L.Ed.2d 495] that
‘[a] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
‘In a prison context, an inmate does not retain those First Amendment rights that are “inconsistent with his status as a prisoner or with the legitimate peno-logical objectives of the corrections system.” ’ ”
Id. at 125,97 S.Ct. at 2538.
The federal prison system, as well as others, has recognized the importance of avoiding obscene, sexually stimulating material in view of the sexually motivated assaults occurring in recent years in prisons.2 Sure*1235ly preventing sexual assaults is not only, in the words of Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), a “legitimate penological objective” but a duty of prison officials. For it seems to me that the right of a prisoner to be reasonably free from an atmosphere conducive of sexual assault is a constitutional right; it falls within the Eighth Amendment right against cruel and unusual punishment. Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973) (“A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates . . . .”). Certainly there is wisdom to giving some deference to prison administrative procedures when prison officials are trying to balance this right against prisoners’ First Amendment right to immediate access to material which later may be found to be obscene. The language of the Supreme Court in Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974) is instructive on this point.
“Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.”
Deference to an administrative procedure designed to further the substantial governmental interest of maintaining order in a prison would seem to be warranted even though that procedure regulates First Amendment rights.
It should be noted that as the prison’s standard for withholding material is the judicial definition of obscenity,3 the position taken here does not have to go as far as the Supreme Court went in Procunier v. Martinez, supra, and does not necessarily imply that prisoners may not have access to material they could purchase legally outside of prison. Rather, the restriction the prison would place on First Amendment rights, which I contend is consistent with “legitimate penological objectives” or “substantial governmental interests” is procedural in character. I suggest that the manner in which the Government may pass upon questionable material may be tailored to the prison context. To suggest that the courts should show deference to prison procedures relating to constitutional rights is not to say that courts should show deference to substantive prison decisions on constitutional issues.
Moreover, in the First Amendment context, Jones v. North Carolina Prisoners’ Labor Unions, Inc., supra, emphasized that the burden is on the objecting prisoner to show that a regulation is invalid. Because the regulation relating to obscene material is coupled with a procedural regulation giving the prisoner an opportunity to appeal to the committee and to the superintendent, and because the prisoner did not attempt to *1236prove the invalidity of this procedural regulation but simply ignored it, allowing him to have his claim determined by t,he district court at this time would seem to conflict with Jones.
I note that in the only two cases directly on point, Judge Winter, writing for the Fourth Circuit, and Judge Wisdom, writing for the Fifth Circuit, expressed reservations about the appropriateness of not requiring exhaustion of administrative remedies.
“We keenly appreciate the force of the factors identified by the district court in
McCray [McCray v. Burrell, D.C., 367 F.Supp. 1191] and Washington [Washington v. Boslow, D.C., 375 F.Supp. 1298] as supporting a policy determination that [the] exhaustion of available administrative remedies should be required of prisoners of correctional institutions in Maryland as a prerequisite to a suit under § 1983. We recognize the burden which the increasing flood of prisoner complaint litigation places upon the already overtaxed district courts as well as ourselves. Nevertheless, we are constrained to conclude that the holding that exhaustion is required may be reached only by either legislation conditioning resort to 42 U.S.C. § 1983 upon the exhaustion of available administrative remedies, or by the Supreme Court’s re-examination and modification of its controlling adjudications on the subject. Congress has not enacted such legislation. The Supreme Court has not yet begun a re-examination of its previous holdings and we have no basis on which to predict that it will, or, if so, with what result. We think that we have no alternative but to hold that exhaustion may not be required.”
Hardwick v. Ault, 517 F.2d 295, 297 (5th Cir. 1975), quoting McCray v. Burrell, 516 F.2d 357, 360-61 (4th Cir. 1975). I too share these reservations, but also feel that modification of the rule followed here can only come from Congress or from the Supreme Court.
Aside from the exhaustion issue, the context of prison discipline also may justify a reconsideration of the ripeness doctrine in § 1983 cases. Respondents argue that the case is not ripe for adjudication, not only because the prisoner did not appeal to the State Attorney General and Commissioner of Corrections, as the majority notes, but also because he failed to take the simple step of appealing to the prison administrative committee and then to the superintendent of the prison. Requiring the prisoner to go beyond the institution and seek review by the Attorney General is unwarranted. Where the only decision was that made by a low-level custodial officer, however, the contention that the case is not ripe for adjudication until a decision has been rendered by a prison official in a high position of responsibility has merit. One commentator has noted:
“[T]he notion of ripeness or state action as a bar to initial assertion of a section 1983 claim in federal court has greater appeal where the alternative is an administrative determination. Agencies may often be created to ‘fine tune’ the application of statutory mandates or general standards to particular cases. To perform this function, procedures are established within the agency to govern individual complaints of unfair treatment. Where this is true, the view that the action of any single official should not give rise to a constitutional claim until other officials within that agency have had the opportunity to review the claim— thus allowing the particular agency to perform fully one of the functions for which it was established — begins to make a good deal of sense.”
Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1272 (1977). See also Stevenson v. Bd. of Educ. of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir. 1970), in which the court stated that Monroe and its progeny do not hold “that federal courts are to intervene in school personnel and management problems without requiring such prior reference to local institutional authority as may be necessary to assure that the action complained of is final within the institution in the sense that it is ripe for adjudication.” Id. at 1157. This ripeness principle seems applica*1237ble when the state agency is a prison and the “fine tuning” concerns balancing prisoners’ rights against prison discipline. See Palmigiano v. Mullen, 491 F.2d 978, 980 n.4 (1st Cir. 1974).
Discussing the ripeness issue at oral argument, counsel for the respondents admitted that, in the language of Monroe, “[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” 365 U.S. at 183, 81 S.Ct. at 482. He went on to urge, however, that until there is a final institutional decision, we are at a stage that precedes remedying a wrong. Further, counsel noted that when many people at an institution are involved in a decision-making process and the person responsible for institutional decisions cannot decide everything in the first instance, until he does make a decision, there is no decision in the institutional sense.
Notwithstanding the wisdom of requiring a final institutional decision before a prisoner’s complaint will be deemed ripe for adjudication, as the majority notes, the usual standard for ripeness applies to a § 1983 action, and under that standard, there appears to be some authority for the proposition that Ricketts’ complaint states a ripe constitutional injury. See McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), cert. dismissed as improvidently granted, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975).4
. See McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Jones v. Carlson, 495 F.2d 209 (5th Cir. 1974) (federal prisoners must exhaust administrative remedies before bringing court challenge to administrative action); Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973) (same). See generally Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L. Rev. 537 (1974). Nor is there an easy reconciliation between the rule followed here and the policies requiring a habeas corpus petitioner to exhaust state administrative and judicial remedies, see, e. g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); 28 U.S.C. §§ 2254(b), 2254(c). See generally Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts, 14-15 n.24 (Tent.Report No. 2, 1977); H. Friendly, Federal Jurisdiction: A General View, 103-107 (1973).
By exhaustion of administrative remedies (appealing to the prison administrative committee and then to the prison superintendent), I do not include going beyond the procedure at the institution and requiring review by the Pennsylvania Attorney General and the Commissioner of Corrections. Seepage 1236, infra.
. In the federal prison system, “[a] publication is not acceptable if it is determined to be detrimental to the security, good order or discipline of the institution.” Federal Prison System Policy Statement No. 7300.42c, 4b (5/4/76). Recent reports by the Federal Bureau of Prisons express a concern about the relationship between obscene material and “good order or discipline.” The Bureau’s position is that: “1) inmates (especially inmates convicted of homosexual offenses) tend to be excited sexually by pornography or other symbolic representations; 2) sexual arousal may augment aggressive responses where alternative responses are restricted . . ..” Pornography and Violence, 2 (Unpublished Report of the Federal Bureau of Prisons). In support of this position, the Bureau relies on several studies by sociologists and psychologists. For example, in an experiment conducted by Professor Dolf Zill-mann of the University of Pennsylvania, subjects were to view several films and then to deliver electric shocks to other subjects to punish them if they answered questions about the films incorrectly. When a subject viewed an erotic film, he delivered stronger shocks than when he viewed an aggressive or neutral film. Zillmann concludes, therefore, that viewing pornographic material increases aggressive behavior. Zillmann, Excitation Transfer in Communication-Mediated Aggressive Behavior, 7 J. of Experimental and Soc. Psych. 419 (1971). The other experiments and studies relied upon by the Bureau are inconclusive. See materials cited in Pornography and Violence, supra, 1-2. In this gray area of scientific inquiry, however, it seems reasonable to show some deference to the Bureau’s interpretation of these studies, *1235since the Bureau reads them against the backdrop of day-to-day experience with problems of violence and prison discipline. The need to show deference to prison authorities in this area is underscored by the fact that of the eight homicides at the federal penitentiary at Lewis-burg, Pa., between March 24, 1974, and May 15, 1976, five were related to homosexual assaults. Sexual Assaults (Unpublished Report of the Federal Bureau of Prisons). The Bureau is not content to rest its position on easy assumptions, but is continuing a thorough study in this area. See id.
. See page 1233, supra.
. I differ somewhat from the majority on the strength of authority of McCray and Hardwick on the ripeness issue. Apparently, in both of those cases the inmate grievance committees were extra-institutional and served the entire prison system. For example, the Maryland Inmate Grievance Commission Act, 4A Md. Code Ann., Art. 41, § 204F (Cum.Supp.1976), which establishes the administrative procedure not exhausted by the prisoner in McCray, provides for the Commission as a separate state agency within the Department of Public Safety and Correctional Services, with the members to be appointed by the Governor. Therefore, although McCray and Hardwick are strong authority on whether the ripeness doctrine requires a decision from the Pennsylvania Attorney General, it is only by a somewhat tenuous analogy that they constitute authority on the issue of whether an institutional decision, in this case a decision by the superintendent of the prison (see page 1236, supra) is required.