(concurring) :
I must concur, albeit reluctantly, in the action of the court which requires that the district court hear the charges made in Wright’s complaint. The failure of New York to provide a forum whereby the state will listen to complaints of those whom it imprisons leaves us no choice but to open the doors of the federal courts to such prisoners who make claims of cruel and oppressive treatment which, if true, would establish violation of constitutional rights. The reasons why the federal courts must act in an area which is so peculiarly the concern of the states, and for which provisions should be made by them, are well set forth in the Task Force Report on Corrections issued in May 1967 by the President’s Commission on Law Enforcement and Administration of Justice. At page 13, the Report states, in regard to safeguards for protection of prisoners against “brutal treatment”: •
“ * * * A fortiori offenders should have recourse against corrupt or brutal treatment and against the deprivation of minimal rights to worship and the like.
“Legal requisites in this area remain almost entirely undefined. Certainly one approach to a sensible reconciliation of interests is through the development of adequate administrative procedures within correctional systems themselves. Hearings involving the offender, review of decisions by persons removed from the immediate situation, explicit policy guidelines and standards, and adequate records to support decisions are examples of lines, that should be followed. The adequacy of recourse for grievances against officials should be subject to the oversight of some external authority.
“The continued neglect of this task by corrections may, as it has in the case of police procedures, make it difficult for courts to do anything but write their own rules. The necessity of procedural safeguards should not be viewed as antithetical to the treatment concerns of corrections. The existence of procedures both fair in fact and perceived to be fair by offenders *528is surely consonant with the ‘colloborative regime’ emphasized as desirable by modem corrections, in which staff and offenders are not cast as opponents but are united in a common effort aimed at rehabilitation. In a prison no less than in society as a whole, respect for and cooperation with authority requires the guaranty of fairness.”
It is clear that there is no administrative or judicial body with an unmistakable mandate to entertain an application by Wright for an order that would prevent recurrence of the treatment of which he complains. That the New York Court of Claims with leave of a judge of a supreme court may award damages is not enough. Thus, while all would agree that it is far better that the states should formulate, supervise and enforce their own rules for the treatment of recalcitrant prisoners, we are faced with asking a district court to write some of the rules.
We are not called upon this time to decide whether Wright would be heard upon his constitutional claims in federal court without first applying for statutory relief in a state court if the New York legislature had given to inmates of its prisons the right to apply for injunctive relief against improper treatment. I would hold that if a state made provision for such relief in its courts the federal courts should abstain for a reasonable period to allow the state courts to hear the complaint and take appropriate action. I do not agree that recent decisions of the Supreme Court mandate or were intended to mandate action by federal courts in all cases involving the treatment of prisoners in state institutions, without a suitable period of abstention where state courts are empowered to hear the case and where there is reason to believe that the state would grant relief if the complaint were well founded. The disciplining of state prisoners is so peculiarly a matter in the discretion of the state, and the possibilities that prisoners will file groundless and numerous complaints in the federal courts are so obvious, that these cases raise “special circumstances” that make it appropriate to treat them as an exception to the caveat or policy against abstention by federal courts. As it is not certain that New York will entertain a request to enjoin improper correctional treatment and it only affords money damages after the fact, the federal courts have a duty to listen and to act if it be shown that constitutional rights are being disregarded.
In fairness to New York we must make it clear that we do not, by our action, credit Wright’s charges; we do no more than say that he must be given an opportunity to prove them. The flood of petitions filed by state prisoners is a constant reminder that the great majority of prisoners are prone to make whatever charge they have reason to believe will get them a hearing, with little or no regard for the truth of their allegations or what they may hope to prove.
But courts are established to hear complaints and to listen to all those which may have substance, however small may be the proportion of those which have merit. There is no doubt that Wright was placed in solitary confinement: the only question is whether the condition of that confinement went beyond those limits which are constitutionally permissible. I agree with Judge Kaufman’s conclusion that if the allegations in the complaint are proved, Wright has been subjected to cruel and unusual punishment proscribed by the Eighth Amendment. The Attorney General has advised us that whatever may be the truth as to the condition of solitary confinement in a strip cell in 1965 and 1966, such conditions do not now exist. However, under the circumstances of this case Wright is entitled to a hearing in the district court.