Bradford v. Weinstein, s. 73-1751

Citation519 F.2d 728
Decision Date02 June 1975
Docket Number73-1921,Nos. 73-1751,s. 73-1751
PartiesHoward E. BRADFORD, Individually and on behalf of all others similarly situated, Appellant, v. Robert WEINSTEIN et al., Appellees. Levi JENKINS, on behalf of himself and all others similarly situated,Appellant, v. Walter D. TYLER et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Ralph S. Spritzer, Philadelphia, Pa. (Court-appointed counsel), and Howard Lesnick, Philadelphia, Pa., for appellant in Nos. 73-1751 and 73-1921.

Emmet H. Clair, Asst. Atty. Gen. (Daniel R. McLeod, Atty. Gen., Robert M. Ariail, Asst. Atty. Gen., on brief) for appellees in No. 73-1921; Jacob L. Safron, Asst. Atty. Gen. (Robert Morgan, Atty. Gen. of North Carolina, on brief), for appellees in No. 73-1751.

Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

These two appeals present two important questions: Does the due process clause of the fourteenth amendment have any application to the conduct of proceedings by a parole board in states which undertake to grant paroles to certain prisoners before service in full of the sentences imposed upon them? If so, may the prisoners complain of a denial of due process in a suit under 42 U.S.C. § 1983, where the sole basis of their complaint is the manner in which the proceedings were conducted and there is no claim that they are entitled to immediate or even earlier release? We think that both questions should be answered in the affirmative; but, for present purposes, we refrain from defining the effect of the application of the due process clause to the procedure for granting paroles.

No. 73-1751 is a class action in which the named plaintiffs, inmates of North Carolina correctional institutions, sued for themselves and others similarly situated under 42 U.S.C. § 1983, alleging that they were eligible to be considered for parole, that it had been denied them but that the proceedings were constitutionally defective because they were afforded no hearing before the parole board, they had no notice of or opportunity to comment upon adverse information to be relied on in the process of decision, and they were never advised of the reasons for denial of parole or the evidence upon which denial was based. The district court denied class action status and it dismissed the individual claims, holding that the "Due Process Clause does not apply in procedures designed to determine suitability for parole." We reverse and remand for further proceedings.

In No. 73-1921, plaintiff, an inmate of a South Carolina prison, sued for himself and others similarly situated under 42 U.S.C. § 1983. He alleged that he had become eligible for parole under South Carolina law but that parole was denied him. The proceedings were constitutionally defective, according to him, because of (1) the character of the evidence on which the parole board relied, (2) its failure to grant him a "full" and impartial hearing with advance notice of adverse information, (3) its failure to establish in advance of judgment the criteria of judgment, and (4) its failure to state reasons for denial of parole. The district court dismissed the complaint for failure to exhaust available state remedies. It was of the view that Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1974), was applicable since plaintiffs' ultimate goal was release on parole, and therefore plaintiffs' exclusive remedy was to seek a writ of habeas corpus to which the exhaustion requirement of 28 U.S.C. § 2254(b) applied. We again reverse and remand for further proceedings.

I.

It is important to note at the outset that in their pleadings, their briefs, 1 and in their oral argument, plaintiffs make no claim that they are entitled to immediate release. Nor do they claim that they have a right to parole so that they would be released prior to the full service of their sentences less whatever credits the states of North Carolina and South Carolina may grant them. They also make no claim that they have the right to inquire into the internal functioning of the parole boards or the adjudicatory processes by which paroles are granted or denied. Cf. United States Board of Parole v. Merhige, 487 F.2d 25 (4 Cir. 1973). The sole thrust of their complaints is a constitutional attack upon the procedures of the respective parole boards. As characterized by their counsel, the substantive question is not the right to parole but the right to procedural due process in the consideration of parole.

Since North Carolina and South Carolina have both adopted legislation affording even the prisoner serving the longest term upon conviction of even the most heinous crime the right to be considered eligible for release, usually upon one or more conditions, prior to service of the entire term imposed on him, 2 we have no difficulty in concluding that the due process clause has some application to the proceedings in which it is determined whether that option shall be granted him. This is so even though we fully recognize that no prisoner ever acquires a right to earlier release; at most he has a right only to be considered for earlier release and a privilege, which may be withheld, to be granted it.

As Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1970), teaches:

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite. (Footnote eliminated.)

Both Roth and its companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1970), were concerned with the discharge of teachers employed by state-owned-and-operated educational institutions. Both cases turned primarily on whether the teachers concerned had a "property" interest in their employment, although Roth contained instructive dicta about when a public-employed teacher's "liberty" might be limited, as, for example, where he was discharged for a reason which impugned his good name, reputation, honor or integrity. 408 U.S. 573-74, 92 S.Ct. 2701. As a consequence, Roth and Sindermann did little to provide a definitive definition of "liberty" which we could easily apply and which would be dispositive of these appeals. Roth did say that "liberty" protected by due process extends "beyond the sort of formal constraints imposed by the criminal process" and that the term is "not confined to mere freedom from bodily restraint" (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)). 408 U.S. at 572, 92 S.Ct. at 2706.

We are of the view that plaintiffs' right to consideration for parole eligibility is, at least, an aspect of liberty to which the protection of the due process clause extends. Indeed, in North Carolina, which guarantees to each prisoner with respect to parole "a review and consideration of his case upon its merits," the right may be one of "property." This conclusion stems from three of the latest cases to consider the myriad of situations in which the due process clause is applicable: Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973); and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). All were cases in which "liberty" was at stake. In Morrissey, the due process clause was held applicable to proceedings having the potential of revocation of parole; in Gagnon, the proceedings having the potential of revocation of probation; and in Wolff, to disciplinary proceedings within a correctional institution. It is true that in Morrissey and Gagnon the continued actual liberty of the subject of the proceeding was at stake, but in Wolff, what was at stake was discipline usually more onerous conditions of servitude of one already confined.

In the instant cases, there is no present liberty at stake. There is only the right to be considered for parole and the inchoate privilege of some earlier future release if the parole board, in its discretion, concludes to grant it. The case is really the converse of Wolff. There, one who was confined was subjected to the risk of durance more vile; here, one who is confined is afforded the right of consideration of partial release from restraint and the privilege of partial release. The first is a right not to be restrained; the second, the privilege of release from restraint. The distinction is without a difference, because the historical dichotomy of protection, depending upon whether something is a right or a privilege, has now been eradicated. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. 2593; Board of Regents v. Roth, 408 U.S. at 571, 92 S.Ct. 2701. Instead, the test of "(w)hether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) . . . ." We think it would be a grievous loss for a prisoner by reason of a completely ex parte proceeding, and the resulting increased opportunity for committing error, to be denied parole and required to serve more of his term because the attention of the parole board was not called to data tending to indicate that parole should be granted, or for a prisoner whose incarceration has as its ultimate objective the prisoner's rehabilitation to fail to know, let alone understand, why parole is denied him and hence what changes in attitudes, habits, and the like will be required if he is ever to be successful in obtaining parole,...

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