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April 16, 1981

Steven L. THOMAS, Plaintiff, pro se,
Christopher DIETZ, Defendant

The opinion of the court was delivered by: DEBEVOISE

This action was brought under 42 U.S.C. § 1983 by Steven L. Thomas, a prisoner incarcerated in the New Jersey State Prison at Trenton, against Christopher Dietz, Chairman of the New Jersey State Parole Board. Plaintiff alleges that at the time he was incarcerated on April 21, 1975 his parole eligibility date was set at July 28, 1981. On June 10, 1980, he avers, he "was informed by a subordinate of the defendant, that the New Jersey State Parole Board had changed its interpretation of the laws governing parole eligibility, that this new interpretation was to be applied retroactively, and that as a result of such retroactive application plaintiff would have to serve an additional three years before being eligible for parole", with a new parole eligibility date of July 10, 1984. Plaintiff seeks as relief a declaratory judgment that the acts, policies and practices of defendant violate Article I, Section 9, clause 3 of the United States Constitution; *fn1" an injunction prohibiting defendant from "imposing punishment on defendant without due process of law"; an injunction reinstating his original parole eligibility date; and punitive damages in the amount of $ 10,000. He does not allege that he has pursued any available state remedies.

Defendant now moves for "an order granting dismissal of the complaint". Neither defendant's notice of motion nor his brief specifies the nature of the motion; since no affidavits have been submitted, it will be treated as a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. All facts alleged in the complaint, therefore, will be taken as true.

 As grounds for the motion, defendant argues that plaintiff's complaint must be construed as seeking a speedier release from confinement, for which the sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Because plaintiff has failed to allege the exhaustion of state remedies, defendant contends, he cannot proceed with a habeas corpus petition at this time. See 28 U.S.C. §§ 2254(b) and (c).

 In Preiser, the Supreme Court held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus". Id. at 500, 93 S. Ct. at 1841. Arguably, plaintiff is not seeking an immediate or speedier release from prison but merely an opportunity to appear before the parole board at an earlier date. The applicable statute governing entitlement to parole in New Jersey, however, provides that:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to section 10 of this act (N.J.S.A. 30:4-123.54) or developed or produced at hearing held pursuant to section 11 of this act (N.J.S.A. 30:4-123.55) indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this state if released on parole at such time ....
N.J.S.A. 30:4-123.53 (emphasis added).

 While the parole board retains some discretion to deny a prisoner release under a narrowly defined set of circumstances unrelated to the computation of the eligibility date, there is obviously a strong presumption that a prisoner eligible for parole will actually be released. Under principles of collateral estoppel, a federal court determination that a prisoner's parole eligibility date was improperly computed or improperly changed would bind the parole board and largely determine the question of the prisoner's entitlement to release. As the Supreme Court stated in Preiser,

(t)his would have the unfortunate dual effect of denying the state prison administration and the state courts the opportunity to correct the errors committed in the State's own prisons, and of isolating those bodies from an understanding of and hospitality to the federal claims of state prisoners ...
Id. at 497, 93 S. Ct. at 1840.

 For all intents and purposes, therefore, a prisoner in New Jersey seeking an earlier parole eligibility date states a claim for an earlier release from confinement, a claim which lies at the core of habeas corpus.

 Were plaintiff seeking an earlier parole eligibility date alone, Preiser would clearly require the dismissal of this action for failure to exhaust available state remedies. Plaintiff, however, also seeks punitive damages of $ 10,000. The question is presented, therefore, whether a prisoner may obtain an immediate federal court adjudication of the constitutionality of his confinement, effectively bypassing the exhaustion requirement of the habeas corpus statute, 28 U.S.C. § 2254(b), merely by including a damages claim in his complaint.

 In Preiser, the Supreme Court held in dictum that "(if) a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement," and may proceed under § 1983 without first exhausting state remedies. This view was reiterated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), an action brought by a group of prisoners under § 1983 for both restoration of good-time credits and damages "for the deprivation of civil rights resulting from the use of ... allegedly unconstitutional procedures". Id. at 553, 94 S. Ct. at 2973. The Supreme Court held in Wolff that the district court was precluded, under Preiser, from granting restoration of good-time credits before state remedies had been exhausted. As to the claims for damages, however, the Court held that "Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings ... (It) was proper for the Court of Appeals and the District Court to determine the validity of the procedures for revoking good-time credits and to fashion appropriate remedies for any constitutional violations ascertained, short of ordering the actual restoration of good time already canceled." Id. at 554-55, 94 S. Ct. at 2973-74. The Court further observed in a footnote that "(o)ne would anticipate that normal principles of res judicata would apply". Id. at 554, n.12, 94 S. Ct. at 2974 n.12.

 While the Supreme Court implied in Wolff that prisoners may maintain some § 1983 damages claims without prior exhaustion of state remedies, even though federal court adjudication of the damages claims may preclude subsequent state court relitigation of underlying questions of fact and law, lower courts have given Wolff a narrow construction. See, e.g., Delaney v. Giarrusso, 633 F.2d 1126 (5th Cir. 1981); Keenan v. Bennett, 613 F.2d 127 (5th Cir. 1980); Derrow v. Shields, 482 F. Supp. 1144 (W.D.Va.1980); Wallace v. Hewitt, 428 F. Supp. 39, 42 at n.12 (M.D.Pa.1976).

 "The rule of exhaustion in federal habeas corpus actions", the Supreme Court stated in Preiser v. Rodriguez, supra, "is rooted in considerations of federal-state comity." Id. 411 U.S. at 491, 93 S. Ct. at 1837. Whether prison inmates challenge state judicial action or state administrative action, "the States have an important interest in not being bypassed in the correction of these problems" and should be given the first opportunity to correct their own errors. Id. at 492, 93 S. Ct. at 1837. Were a federal court to make a determination in a § 1983 damages action of precisely the same constitutional claim upon which a ...

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