439 F.2d 1331 (8th Cir. 1971), 20264, Wilwording v. Swenson

Docket Nº20264, 20313, 20421.
Citation439 F.2d 1331
Party NameAlan Daniel WILWORDING, Appellant, v. Harold R. SWENSON, Warden, Appellee. Donald L. BEISHIR et al., Appellants, v. Harold R. SWENSON, Warden, et al., Appellees. Kenneth MILLS, Appellant, v. Harold R. SWENSON et al., Appellees.
Case DateMarch 16, 1971
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1331

439 F.2d 1331 (8th Cir. 1971)

Alan Daniel WILWORDING, Appellant,

v.

Harold R. SWENSON, Warden, Appellee.

Donald L. BEISHIR et al., Appellants,

v.

Harold R. SWENSON, Warden, et al., Appellees.

Kenneth MILLS, Appellant,

v.

Harold R. SWENSON et al., Appellees.

Nos. 20264, 20313, 20421.

United States Court of Appeals, Eighth Circuit.

March 16, 1971

Page 1332

Ronald M. Sokol, Kansas City, Mo., for appellants.

John C. Danforth, Atty, Gen., Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before GIBSON and BRIGHT, Circuit Judges, and McMANUS, Chief District judge.

GIBSON, Circuit Judge.

The three cases involved in these appeals were filed as habeas corpus actions in the Western district of Missouri. All three petitions were concerned with the conditions of confinement or treatment of the petitioners in the Missouri State Penitentiary. The District Court in each case dismissed the petitions without prejudice for failure to exhaust state remedies. This Court by order of August 10, 1970, ordered the cases consolidated for hearing, limited 'to the singular issue of the necessity to exhaust state remedies before seeking equitable relief in a federal court on complaints of alleged unconstitutional prison discipline.'

None of the petitioners is attacking the legality of his conviction or detention. Each petitioner has been convicted of substantial and serious crimes 1 and has already collaterally tested the legality of his judgment of conviction. These current petitions do not seek release from custody but seek relief from alleged illegal restrictive confinement and present other complaints about treatment received from prison guards and employees and other conditions of confinement. 2

Each petitioner has attempted to present these complaints to the Missouri courts, either by a petition for habeas corpus or by a proceeding under Rule 27.26 of the Missouri Supreme Court, V.A.M.R., which is analogous to a federal proceeding under 28 U.S.C. § 2255. (Section 2255 provides a method of collateral attack upon a federal sentence

Page 1333

where the petitioner claims the right to be released from custody upon the ground that the sentence was imposed in violation of the Constitution or the laws of the United States). In all cases the petitioners' complaints were dismissed by the Missouri Supreme Court for failure to state grounds upon which relief could be granted. The Missouri Supreme Court in Goodman v. Swenson (No. 54872), considered the propriety of the use of state habeas corpus to test conditions of confinement in the Missouri penal system and dismissed without opinion the petition as failing to state a claim upon which relief could be granted, thus viewing the writ of habeas corpus ad subjiciendum as available only to release a prisoner from unlawful imprisonment. And the State's brief says that all petitioners seeking relief from alleged unconstitutional conditions of confinement by way of habeas corpus have been denied by the Missouri Supreme Court on the same ground of failure to state a claim.

This Court in Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970), reached a somewhat similar conclusion on the scope of federal habeas corpus, but recognized that 'exceptional situations' were also reviewable by way of habeas corpus. Judge Lay speaking for the Court in Cates said:

'It is settled law in this circuit that a petition for a writ of habeas corpus is not the appropriate remedy to seek correction of alleged unconstitutional prison discipline. * * * However, in Harris v. Settle, 322 F.2d 908, 910 (8th Cir. 1963), we acknowledged that there can be exceptional situations where a court will undertake 'to review the nature and conditions of a prisoner's otherwise lawful confinement.'' 422 F.2d at 927.

We are thus at the onset confronted with the issue of whether the petitioners' complaints are properly cognizable in a habeas corpus proceeding. As noted in Cates, complaints of conditions of confinement are generally not within the proper scope of a writ of habeas corpus or a proceeding serving a similar purpose of collateral review of a judgment of conviction and sentence such as the Missouri 27.26 proceeding or a federal § 2255 proceeding. This leads to the question of whether the allegations made in petitioners' complaints constitute such 'exceptional situations' that the court will proceed to review the complaints. The line of demarcation in the latter situation as delineated in Harris v. Settle, 322 F.2d 908 (8th Cir. 1963) would be drawn between conditions or treatments that are so unreasonable as to constitute cruel and unusual punishment within the prohibition of the Eighth Amendment and those conditions which would not fall within that classification.

While there is no uniformity of treatment among the circuits as to the precise scope of the habeas corpus writ, 3 the courts have recognized the traditional scope of habeas corpus as extending basically to the legality of the confinement, but also have granted relief from certain conditions of confinement. The courts, moreover, have liberally construed the pro se complaints of inmates and have been inclined to grant some type of relief where proof of the conditions

Page 1334

alleged would clearly indicate that relief is merited. Roberts v. Pegelow, 313 F.2d 548 (4th Cir. 1963). Roberts held that while the traditional function of the habeas corpus writ is to test legality of detention the court has a discretionary right to treat the complaint as one for injunctive relief.

In this circuit we have accepted jurisdiction on complaints denominated as habeas corpus, writs of mandamus, and petition for physical examination as petitions for injunctive relief under the Civil Rights Statutes, 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4) and viewed the cases brought therein as class actions within the scope of Rule 23, Fed.R.Civ.P. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). In an exhaustive opinion relating to prisoners' complaints about treatment amounting to cruel and unusual punishment in the Arkansas state prison system, Judge (now Mr. Justice) Blackmun approved the practice of treating prisoners' handwritten petitions, styled as petitions for habeas corpus and for writ of mandamus, as proceedings under 42 U.S.C. § 1983 and under 28 U.S.C. §§ 1343(3) and (4). Accord, Sharp v. Sigler, 408 F.2d 966 (8th Cir. 1968); cf. Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970). This practice has also received the approval of other circuits. See Smart v. Avery, 370 F.2d 788 (6th Cir. 1967); and see also Long v. Parker, 390 F.2d 816 (3d Cir. 1968), where the court treated the habeas corpus petition of a federal prisoner as a proceeding in the nature of mandamus under 28 U.S.C. § 1361.

The original and basic purpose of the writ of habeas corpus was to test the legality of the confinement, to seek release from alleged illegal custody. The federal pronouncements on the writ and in statutory proceedings implementing the writ all relate to release from confinement and custody. Section 2254 of Title 28 relating to state custody predicates jurisdiction on the ground that the person is in custody in violation of the Constitution or the laws of the United States, as does § 2255 relating to postconviction review of federal prisoners which not only refers to the in-custody condition but to the fact that the petitioner is claiming a right to be released upon the ground that the sentence was illegal as violative of the Constitution or laws of the United States. However, habeas corpus has been utilized as a procedural method of airing prisoner's complaint and granting equitable relief where relief was indicated. Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

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31 practice notes
  • 567 A.2d 1187 (Conn. 1989), 13560, McCarthy v. Warden, State Prison
    • United States
    • Connecticut Supreme Court of Connecticut
    • December 26, 1989
    ...state habeas claim. The Eighth Circuit Court of Appeals thereafter affirmed the United States District Court in Wilwording v. Swenson, 439 F.2d 1331 (8th Cir.1971). The Supreme Court of the United States, however, reversed, holding that Wilwording had adequately fulfilled the exhaustion req......
  • 664 F.Supp. 1285 (D.Neb. 1987), CV 85-L-688, Mayfield v. Ford
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 8, 1987
    ...or perhaps other relief under the State Administrative Procedure Act." Id. at 249-50, 92 S.Ct. at 408 (citing Wilwording v. Swenson, 439 F.2d 1331, 1336 (8th Cir. 1971). In so holding, the court Section 2254 does not erect insuperable or successive barriers to the invocation of federal......
  • 442 F.2d 304 (8th Cir. 1971), 20348, Holt v. Sarver
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • May 5, 1971
    ...right. See Burns v. Swenson, 8 Cir., 430 F.2d 771, 775; Sostre v. McGinnis, 2 Cir., 442 F.2d 178 (1971); Wilwording v. Swenson, 8 Cir., 439 F.2d 1331 (1971). Petitioners in their amended complaint did not contest the validity of the imposed sentences which they are serving nor do they ask t......
  • 416 F.Supp. 1181 (W.D.Mo. 1976), Civ. A. 75CV467-W-3, Redding v. Vermillion
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • July 27, 1976
    ...Circuit on the ground that adequate state remedies were available through mandamus, prohibition, or injunction. Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971). The Supreme Court reversed, holding that exhaustion should not be required since none of the suggested state remedies had eve......
  • Request a trial to view additional results
31 cases
  • 567 A.2d 1187 (Conn. 1989), 13560, McCarthy v. Warden, State Prison
    • United States
    • Connecticut Supreme Court of Connecticut
    • December 26, 1989
    ...state habeas claim. The Eighth Circuit Court of Appeals thereafter affirmed the United States District Court in Wilwording v. Swenson, 439 F.2d 1331 (8th Cir.1971). The Supreme Court of the United States, however, reversed, holding that Wilwording had adequately fulfilled the exhaustion req......
  • 664 F.Supp. 1285 (D.Neb. 1987), CV 85-L-688, Mayfield v. Ford
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 8, 1987
    ...or perhaps other relief under the State Administrative Procedure Act." Id. at 249-50, 92 S.Ct. at 408 (citing Wilwording v. Swenson, 439 F.2d 1331, 1336 (8th Cir. 1971). In so holding, the court Section 2254 does not erect insuperable or successive barriers to the invocation of federal......
  • 442 F.2d 304 (8th Cir. 1971), 20348, Holt v. Sarver
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • May 5, 1971
    ...right. See Burns v. Swenson, 8 Cir., 430 F.2d 771, 775; Sostre v. McGinnis, 2 Cir., 442 F.2d 178 (1971); Wilwording v. Swenson, 8 Cir., 439 F.2d 1331 (1971). Petitioners in their amended complaint did not contest the validity of the imposed sentences which they are serving nor do they ask t......
  • 416 F.Supp. 1181 (W.D.Mo. 1976), Civ. A. 75CV467-W-3, Redding v. Vermillion
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • July 27, 1976
    ...Circuit on the ground that adequate state remedies were available through mandamus, prohibition, or injunction. Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971). The Supreme Court reversed, holding that exhaustion should not be required since none of the suggested state remedies had eve......
  • Request a trial to view additional results