Leonard v. Mississippi State Probation and Parole Bd.

• Decision Date: 17 March 1975
• Docket Number: No. 74--2354,74--2354
• Parties: Walter LEONARD, Jr., et al., Plaintiffs-Appellees, v. MISSISSIPPI STATE PROBATION AND PAROLE BOARD et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 820

509 F.2d 820

Walter LEONARD, Jr., et al., Plaintiffs-Appellees, v. MISSISSIPPI STATE PROBATION AND PAROLE BOARD et al Defendants-Appellants.

No. 74--2354.

United States Court of Appeals Fifth Circuit.

March 17, 1975.

Rehearing and Rehearing En Banc

Denied June 10, 1975.

A. F. Summer, Atty. Gen., Edwin A. Snyder, Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.

David M. Lipman, Jackson, Miss., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.

WISDOM, Circuit Judge:

In this § 1983 case, brought as a class action by Walter Leonard, Jr., an inmate of the Mississippi State Penitentiary, the district court enjoined the Mississippi State Probation and Parole Board, the Mississippi State Penitentiary Board, and the Superintendent of the Mississippi State Penitentiary from relying on prison disciplinary records that were the product of procedures held to be constitutionally infirm in Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291. The defendants had utilized these pre-Gates records for determining prisoner classifications, eligibility for work-release, vocational and educational programs, camp and work assignments, and parole consideration. On appeal, the defendant-appellants set out three grounds for reversal. First, they contend that a three-judge district court should have been convened to hear this case under 28 U.S.C. § 2281. ¹ Second, they say that this class action is not properly cognizable as a Section 1983 ² action because, under Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, 'habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement.' Third, and decisively, they point out that this Court's decision in Gates should not be applied retroactively to require expungement of records made before the adoption, ³ on January 26, 1973, of disciplinary procedures that conform to constitutional requirements.

We find the appellants' first two arguments without merit. We reverse the decision of the district court only because we hold that this Court's decision in Gates must not be applied retroactively.

I

Under 28 U.S.C. § 2281, a three-judge district court must be convenedwhenever a plaintiff seeks a federal injunction to restrain the enforcement, operation or execution of a state statute 'by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes'. In some circumstances, Section 2281 also requires that a three-judge court be convened when an injunction is sought to restrain a state administrative 'practice'. Sands v. Wainwright, 5 Cir. 1973 (en banc), 491 F.2d 417. The cardinal rule of construction in Section 2281 cases, however, is that the three-judge court statute is a technical enactment in the strict sense and must be narrowly construed. See Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800, 805; Sands v. Wainwright, 5 Cir. 1973 (en banc), 491 F.2d 417. See also 1 W. Barron & A. Holtzoff, Federal Practice and Procedure § 52 (C. Wright ed. 1960); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964); 7 Moore's Federal Practice 65.16 (1974); C. Wright, Handbook of The Law of Federal Courts § 50, p. 188 (1970 ed.). As Justice Frankfurter said in Phillips, 'To bring this procedural device into play--to dislocate the normal operations of the system of lower federal courts . . . requires a suit which seeks to interpose the Constitution against the enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an 'administrative board or commission'. The crux of the business is procedural protection against an improvident statewide doom by a federal court of a state's legislative policy.' Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483 (emphasis supplied).

In this case, Leonard does not challenge any provision of the Mississippi Constitution. Nor does he attack the constitutionality of any statute, either on its face or as applied. Finally, he does not attack any formal order, rule, or regulation that has been promulgated by a state board or commission. The question, then, is whether the facts of this case fall within the area elucidated in Sands, so that a three-judge court must be convened to consider enjoining the continuation of a state administrative 'practice'.

In Sands, the defendant Texas prison officials maintained that a three-judge court was not required because the plaintiffs were challenging only prison 'practices' and not prison regulations. ⁴ The Court said that a distinction between 'practices' and 'regulations' could not be sustained because 'in this case, (Sands), it is a distinction without a difference'. 491 F.2d 417, 428 (emphasis added). Moreover, the Court held that:

'The 'practices' whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. Plaintiffs claim that no particular paragraph or section of those Rules and Regulations--either the 1953 version in effect at the time this litigation was initiated, or the July 9, 1973, version currently in effect--is constitutionally offensive, and that no injunction is sought against any such paragraph or section. The entire thrust of plaintiff's argument, however, is that the Rules and Regulations, as a whole and as applied, are constitutionally deficient standing alone. More complete and more specific regulations must be mandated in order to assure that the present 'practices' will not be continued.'

491 F.2d 417, 428 (emphasis in original). Clearly, Sands does not require that a three-judge court be convened whenever a state administrative 'practice' is challenged as unconstitutional. A three-judge court is not required when the constitutional attack is aimed at the mere results of 'erroneous administrative action'. Ex Parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249. See also Clark v. Thompson, S.D.Miss.1962, 204 F.Supp. 30, 31. The mere fact that a prisoner is injured by the acts of a state official done 'under color of state law' is sufficient to state a claim under Section 1983, but it is not sufficient to trigger application of Section 2281. In Sands, however, the administrative 'practice' was, in effect, the application of administrative rules or regulations that the court found insufficiently specific; in short, the constitutional challenge ran to administrative rules 'as applied'.

Here, no such nexus exists between any administrative rules and the administrative practice sought to be enjoined; the administrative practice is simply amorphous. Leonard challenges the continued use of pre-Gates disciplinary records by state officials. The record shows that the defendant officials have continued, in fact, to rely on these records. The record also shows that neither constitutional provision nor statute nor administrative rule requires them to do so. Moreover, no facts in the record demonstrate that the administrative practice challenged here is in fact an administrative rule 'as applied' in the sense that term was used in Sands. We hold, therefore, that the administrative practice Leonard challenges is a mere practice and does not require the convening of a three-judge court.

II

The appellants' second argument, based on Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, is that this class action should have been brought by application for a writ of habeas corpus rather than by an action based on Section 1983 because Leonard, the named plaintiff, was in fact challenging the fact or duration of his confinement. In Preiser, the 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 or speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.' Id., 1973, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439, 456. This distinction is important to the individual party or parties involved because of the different exhaustion principles applied in habeas corpus and Section 1983 cases. See 28 U.S.C. § 2254 and Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. But see also Gibson v. Berryhill, 1973, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 and Comment, Exhaustion of State Administrative Remedies In Section 1983 Cases, 41 U.Chi.L.Rev. 537 (1974). In Preiser, the plaintiffs 'sought injunctive relief to compel restoration of (good-time-conduct) credits, which in each case would result in their immediate release from confinement in prison.' 411 U.S. at 476--477, 93 S.Ct. at 1829. The Court held, therefore, that the essence of this action fell within the 'core' of habeas corpus.

The appellants contend that it has been apparent from the beginning of this litigation that Leonard in fact seeks an early release from custody and that he has disguised a true habeas corpus action as a Section 1983 action in order to circumvent the exhaustion requirement. This argument places substantial weight on Leonard's statement, made at the evidentiary hearing, that he 'wants out on parole'. We think that this view ignores the very theory and purpose of this class action.

As the named plaintiff in this action, Leonard brought suit on his own behalf and on behalf of a class of plaintiffs who have allegedly suffered harm from the continued use of pre-Gates records. The...