Serio v. Members of Louisiana State Bd. of Pardons

• Decision Date: 17 July 1987
• Docket Number: No. 86-3759,86-3759
• Citation: 821 F.2d 1112
• Parties: Ernest M. SERIO, Plaintiff-Appellant, v. MEMBERS OF LOUISIANA STATE BOARD OF PARDONS, Howard Marsellus, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1112

821 F.2d 1112

Ernest M. SERIO, Plaintiff-Appellant, v. MEMBERS OF LOUISIANA STATE BOARD OF PARDONS, Howard

Marsellus, Jr., et al., Defendants-Appellees.

No. 86-3759.

United States Court of Appeals,

Fifth Circuit.

July 17, 1987.

Ernest M. Serio, pro se.

J. Marvin Montgomery, Asst. Atty. Gen., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Ernest Serio, a state prisoner invoking 42 U.S.C. Sec. 1983, seeks damages from members of the Louisiana State Board of Pardons in their individual and official capacities. Serio alleges that the Board denied him parole at least in substantial part because he had previously filed lawsuits against prison officials. In this manner, he contends, the Board violated his constitutional right to be free from retaliation for seeking access to the courts and his right to equal protection because others, who had been convicted of more heinous offenses, have been granted parole. As relief, he seeks punitive damages, a judgment declaring that the defendants violated both his right to equal protection and his first amendment right of access to the courts, and an order enjoining Board members from repeating this practice.

The district court dismissed the complaint as frivolous, ¹ reasoning that: (1) the plaintiff had failed to allege a deprivation of federally protected rights; (2) there is no constitutionally protectible liberty interest in the expectancy of early release; and (3) to the extent the allegations sound in habeas corpus, the prisoner had failed to exhaust state remedies. On motion for reconsideration, the court found that the prisoner had alleged no facts showing that the Board "has a policy, or has taken action, against inmate counsel or paralegals for their assistance to other inmates," and that the allegations "are conclusory only." The court said further that there were no "allegations or facts indicating that the Board's remarks resulted in any curtailment or chilling of plaintiff's right to access to the courts." It therefore affirmed its prior judgment.

Although we find the complaint sufficient to state a claim, we affirm the dismissal of the claim for damages because it is barred by the defendants' immunity. The claims for injunctive relief, being, in effect, an attack on the propriety of a single defective hearing and seeking an earlier release from custody, cannot be asserted until state habeas corpus remedies are exhausted. We therefore reverse the judgment of dismissal with prejudice and remand for a determination whether a stay is necessary or whether dismissal without prejudice will adequately preserve those claims so that they may be pursued under Sec. 1983 once habeas remedies have been exhausted.

I.

The allegations of the complaint are sufficient to inform the court and the defendants of the factual basis on which it rests. Serio states that, during the parole board proceedings, the defendants declared that his law suits indicated his "refusal to accept authority." He further alleges that the Board's decision to deny his parole application is at least in part based on his litigiousness and that this fact is evidenced by the defendants' comments in the hearing record. He then alleges that the Board invoked the pretext of his failure to rehabilitate himself to deny him a parole privilege when in reality it was retaliating against him for being a "jailhouse lawyer."

This complaint is in marked contrast to the one we considered inadequate in Hilliard v. Board of Pardons and Paroles. ² Hilliard alleged only that he was denied parole because he was involved in a prison-reform lawsuit. Unlike Serio, Hilliard pointed to no hearing-record statements or other facts establishing that his allegation was founded on anything more than his own assumption. ³ Serio's complaint, therefore, was not subject to dismissal on the ground that the allegations merely stated legal conclusions.

The district court correctly ruled, however, that the defendants enjoyed absolute immunity from Sec. 1983 damages. We held in Hilliard that such officials cannot be "personally liable for money damages" because they "are absolutely immune from liability for damages in a Sec. 1983 action." ⁴ Hilliard therefore forecloses Serio's argument based on the distinction between action in an official and in an individual capacity. Although the Supreme Court has not passed on this issue, in Cleavinger v. Saxner ⁵ it relied on precedent consistent with Hilliard to distinguish the absolute immunity afforded by lower courts to state parole board members from the qualified immunity that the Cleavinger decision affords to members of a federal prison disciplinary committee. ⁶

We need not defer decision of the immunity issue here, as we did in Williams v. Dallas County Commissioners. ⁷ In that opinion, we stated, "In any case, even if it plainly appeared that Williams' Sec. 1983 claims would be foreclosed as a matter of law, a federal court may not address the issue until the state courts have been afforded an opportunity to consider the merits of Williams' challenge to his state conviction." ⁸ Williams, however, is based on the comity-inspired principle that state courts should be given first opportunity to rule on the merits of a prisoner's claim attacking the constitutionality of the fact or duration of his incarceration. ⁹ In Williams, the district court inquired into the factual basis of the petitioner's claim, concluded that the complaint was primarily a challenge to the impaneling of the petit jury, and determined that the defendants were not involved in the petit jury dispute. The court therefore concluded that the complaint failed to state a colorable claim for Sec. 1983 relief and dismissed the action. Here, the defendants are entitled to absolute immunity, and, even if Serio's factual allegations are true and he is entitled to habeas corpus relief, they could not be held liable for damages. Dismissal of his claim for damages against these defendants, therefore, resolves none of the merits underlying Serio's state claim. In the absence of a threat to the principles of comity, there remains no sound basis to defer decision on the immunity issue.

II.

Serio's claim for injunctive relief was dismissed by the district court because the court viewed release from confinement as Serio's ultimate aim and concluded that this necessarily reduced the complaint to a "mixed" civil rights/habeas petition subject to dismissal for failure to exhaust state remedies. Serio, however, insists that he seeks neither reduction in his sentence nor early release but only redress for the violation of his equal protection and first amendment rights. To determine whether Serio's equitable claims are properly assertable as an initial matter under Sec. 1983 or must first be pursued through habeas corpus with its attendant exhaustion requirement, ¹⁰ we begin by reviewing prior case-law that has made it difficult to answer this question.

In Preiser v. Rodriguez, ¹¹ the Supreme Court held in a class action that a constitutional challenge by state prisoners to the cancellation of good-time credits that would have entitled them to immediate or earlier release should have been brought in a habeas corpus action even though the plaintiffs' claim fell within the literal terms of Sec. 1983. "[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment," the Preiser Court stated, "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." ¹²

The Court premised its analysis on the principle that "a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in federal court is limited to habeas corpus." ¹³ This was necessary, the Court noted, "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors." ¹⁴ The Court drew no distinction between challenges that would automatically negate the validity of conviction or sentence and challenges that would directly require only that the state court determine whether or not the constitutional infirmity constituted harmless error. The Court then concluded that "the result must be the same in the case of a state prisoner's challenge to the fact or duration of his confinement, based ... upon the alleged unconstitutionality of state administrative action." ¹⁵

In Wolff v. McDonnell, ¹⁶ however, the Court held that inmates who claimed in a class action that good-time credits had been taken from them without proper procedural protections could sue for damages and an injunction under Sec. 1983 even though their claim seeking restoration of lost good-time for which they had previously been credited could be pursued only through a petition for a writ of habeas corpus. The Court noted that the Preiser decision "was careful to point out that habeas corpus is not an appropriate or available remedy for damage claims which, if not frivolous and of sufficient substance to invoke the jurisdiction of the federal court, could be pressed under Sec. 1983 along with suits challenging the conditions of confinement rather than the fact or length of custody." ¹⁷ Moreover, the Court noted that the Sec. 1983 action could be maintained despite the fact that usual principles of res judicata would apply to factual and legal disputes resolved by a federal court addressing the Sec. 1983 claim. ¹⁸ One apparent implication of Wolff's holding, therefore, is that a Sec. 1983 class action challenging the disciplinary proceedings of a state prison may go...