the prisoner when the defendant has failed to answer the complaint within twenty (20) days, motions for class action certification, motions to dismiss, motions for summary judgment, motions for protective orders motions to compel discovery, motions to strike pleadings, and motions for a temporary restraining order. A large percentage of habeas corpus actions challenging convictions in the state courts are dismissed for failure of the petitioner to exhaust state court remedies as required by 28 U.S.C. §§ 2254 (b) and (c). However, state prisoners bringing civil rights actions are not required to exhaust state court rememdies. 17 See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed.2d 418, 421 (1971) (conditions of confinement case); Preiser v. Rodriguez, 411 U.S. 475, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439, 453 (1973). State prisoners are not required to exhaust administrative remedies. See United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1229 (3d Cir. 1977); Simpson v. Weeks, 570 F.2d 240 (8th Cir. 1978); Hardwick v. Ault, supra. See also McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 417 16. For an excellent discussion of the exhaustion requirement, see Note, State Prisoners' Suits Brought on Issues Dispositive of Confinement: The Aftermath of Preiser v. Rodriguez and Wolff v. McDonnell, 77 Colum. L. Rev. 742 (1977); Comment, State Prisoners and the Exhaustion of Administrative Remedies: Section 1983 Jurisdiction and the Availability of Adequate State Remedies, 7 Seton Hall L. Rev. 366 (1976). 17. See also Allee v. Medrano, 416 U.S. 802, 814, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566, 580 (1974); Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281 (1975); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505, 522 (1974); 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). 88 S.Ct. 526, 527, 19 L.Ed.2d 647, 527, 19 L.Ed.2d 647, 649 (1967); Steffel Thompson, supra at 472; Carter v. Stanton, 405 U.S. 669, 670-71, 92 S.Ct. 1232, 1234, 31 L. Ed. 2d 569, 572 (1972). V. Federal prisoners are required to exhaust administrative remedies. See Waddell v. Alldridge, 480 F.2d 1078 (3d Cir. 1973); Jones v. Carlson, 495 F.2d 209 (5th Cir. 1974); Willis v. Ciccone, 506 F.2d 1011, 1015 (8th Cir. 1974). The Supreme Court cases commenting on exhaustion of state remedies can be interpreted as ambiguous or as unnecessary dicta, U.S. ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1229 (3d Cir. 1977), and a few courts have imposed a limited exhaustion requirement in cases in which the plaintiff is asserting the violation of his constitutional rights in state court criminal proceedings 18 or when he alleges that his personal property of no great monetary value was unlawfully confiscated without due process of law. D. Representation by Counsel; Attorney's The court can appoint counsel for habeas petitioners when necessary and counsel can be compensated in accordance with the Criminal Justice Act, 18 U.S.C. § 3006A(g). 18. See Guerro v. Mulhearn, 498 F.2d 1249, 1251 (1st Cir. 1974); Fulford v. Klein, 529 F.2d 377, 378 (5th Cir. 1976); Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976); Conner v. Pickett, 552 F.2d 585, 587 (5th Cir. 1977); Grundstrom v. Darnell, 531 F.2d 272 (5th Cir. 1976); Robinson v. Richardson, 556 F.2d 332 (5th Cir. 1977); Edwards v. Joyner, 566 F.2d 960 (5th Cir. 1978); Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977); Foster v. Zeeko, 540 F.2d 1310 (7th Cir. 1976). 19. Secret v. Brierton, 584 F.2d 823 (7th Cir. 1978). Securing counsel for plaintiffs in civil rights actions is more difficult. There is no right to counsel in Section 1983 cases. Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975).20 The Comptroller General of the United States, in a decision dated February 28, 1974, 39 Comp. Gen. 133, File No. B-139703, took the position that he cannot pay counsel fees in civil rights cases under the Criminal Justice Act. He specifically disagreed with McClain v. Manson, 343 F.Supp. 382 (D.C. Conn. 1972), a case cited repeatedly by prisoners. The decision in McClain may be better understood by realizing that it preceded Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), which held that actions seeking release from custody must be handled as habeas corpus rather than civil rights. rights. Prior to Preiser, the distinction between habeas corpus and civil rights was less clear and courts may have treated civil rights actions as habeas for purposes of appointment of counsel. However, it now appears that while a court could enter an order "appointing" an attorney, the fact is that the Comptroller General would ultimately refuse to pay the attorney's fee. Under 28 U.S.C. § 1915(d) the court may request an attorney to represent a party who is proceeding in forma pauperis in a civil case but that section contains no provision for compensation of counsel. In Heidelberg v. Hammer, 577 F.2d 429 (7th Cir. 1978), the court recognized that the question of whether to request an attorney to represent a plaintiff in accordance with 28 U.S.c. § 1915(d) rests in the sound discretion of the district court "unless denial would result in fundamental unfairness impinging on due process rights," 577 F.2d 431. The court did note that it is extremely helpful to the court to have the plaintiff represented by counsel when a hearing is required. The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.c. § 1988, 21 authorizes the court to allow 20. Wimberly v. Rogers, 557 F.2d 671 (9th Cir. 1977) held that the district court had not abused its discretion in denying a request for appointment of counsel. 574 F.2d 1147, 1154 (4th Cir. 1978). 21. See Lipson, Beyond Alyeska But see Gordon v. Leeke, Judicial Response to the Civil Rights Attorneys' Fees Act, 23 St. Louis U.L.R. 243 (1978). the prevailing party a reasonable attorney's fee as Identification of the "prevailing" party is not always easy. Black and female residents of a Georgia county instituted a class action suit seeking injunctive relief to correct the allegedly unconstitutional composition of grand and traverse juries in Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977). During a hearing defendants admitted the unconstitutional composition and subsequently prepared new lists which were approved by the court. The district court denied plaintiffs' motion for award of attorneys' fees, noting that the unconstitutional state of affairs resulted from negligence rather than intentional misconduct or bad faith. Although defendants argued on appeal that plaintiffs were not "prevailing" parties within the meaning of the Civil Rights Attorney's Fees Awards Act since the parties settled the litigation by voluntary agreement, the court of appeals reversed and awarded attorneys' fees, finding that the plaintiffs were prevailing parties and concluding that the settlement did not prevent award of counsel fees. The' court noted that under Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3 (b) and 2000e-5(k), defendant's conduct was irrelevant to award of attorneys' fees and held that the same standards should apply to awards under section 1988. 22. In Miller v. Carson, 563 F.2d 741, 756 n. 28 (5th Cir. 1977), the court stated: The fact that a trial judge appointed an attorney and later awarded him a fee is In Inmates of Neb. Penal and Correctional v. Greenholtz, 567 F.2d 1381 (8th Cir. 1977), inmates brought an action against the members of the board of parole seeking injunctive relief and damages for the board's policy of refusing to consider otherwise eligible inmates for discretionary parole if they had actions pending in court. While the action was pending the board abolished its policy, admitting that it interfered with the inmates' right to seek redress of grievances in the courts. After conducting a hearing and finding that the policy was no longer being applied and would not be applied in the future, the district court denied injunctive relief since there was no threat of future irreparable injury. The district court did, however, award plaintiffs some of their costs. In affirming, the court of appeals quoted from the district court opinion: In effect, the Board's policy costs. 23 567 F.2d at 1384. The Eighth Circuit recognized in Intern. Soc. for Krishna Consc. v. Anderson, 569 F.2d 1027, 1029 (8th Cir. 1978), that under the act, attorneys' fees are to be awarded to the prevailing party absent unusual circumstances. Since the district court had denied plaintiff's application for attorneys fees, the court of appeals remanded for determination whether any unusual circumstances existed which would render an award of attorneys' fees to the plaintiff unjust and for determination of the amount of the award if any was to be made. However, in Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. 1977), the court determined that the prisoner plaintiffs should not be awarded attorney fees 23. See also Kimbrough v. Arkansas Activities Ass'n., 574 F.2d 423 (8th Cir. 1978). |