Bell v. United States

• Citation: 203 F. Supp. 371
• Decision Date: 29 March 1962
• Docket Number: Civ. No. 3506.
• Parties: William R. BELL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

203 F. Supp. 371

William R. BELL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 3506.

United States District Court W. D. Wisconsin.

March 29, 1962.

William R. Bell, pro se.

N. S. Heffernan, U. S. Atty., Western District of Wisconsin, Madison, Wis., for defendant.

STONE, District Judge.

The present adjudication is upon the motion of the United States under Rule 56, 28 U.S.C., for summary judgment to dismiss the plaintiff's Complaint. The Complaint is against the United States of America and therein the complainant recites the following: That on January 30, 1959, in the District Court for the Middle District of Georgia, he was found guilty of two counts of violating the Dyer Act. He was thereupon committed to the custody of the Attorney General for a period of 4 years on each count, the counts to run concurrently. He was committed to the United States Penitentiary at Atlanta, Georgia, and continued in confinement until December 7, 1961. On that date the Warden of the Penitentiary issued a Certificate of Mandatory Release and directed him to report to the Parole Officer for the Western District of Wisconsin, the District of permanent residence of the plaintiff.

The Certificate of Mandatory Release, which was made a part of the record herein, recites that, "Upon release the above named prisoner shall be under the jurisdiction of the United States Board of Parole, as if on parole, as provided by Section 4164, Title 18 U.S.C. * * *"

The Complaint recites that the mandatory release was earned by the plaintiff as a result of "good time" deductions accumulated under the terms of Section 4161, Title 18 U.S.C., and Section 4162, Title 18 U.S.C. The Certificate of the Warden of the Penitentiary, which is a part of the record herein, recites that Bell, under the terms of 18 U.S.C. § 4161, received a deduction of 7 days per month beginning on the day that his sentence commenced to run. On the day of his release, he had been credited with 336 days of deduction from his sentence. He was credited with "good time" for the 48 months for which he was sentenced. In addition, he received 70 days of "good time" deduction under the terms of 18 U.S.C. § 4162 for performing satisfactorily in employment in a prison industry. He also volunteered to participate in a medical experiment using live polio virus, and for this he was awarded 12 days of meritorious "good time". His deductions pursuant to the terms of the statute totaled 418 days; and when these deductions, added to the actual days he served in confinement, totaled 4 years, he was given a mandatory release. This occurred on December 7, 1961.

The Complaint alleged that the effect of "good time" deductions was to reduce the term of his sentence and he therefore in his Complaint asked the Court for an order discharging him from all parole supervision and terminating all control over him. He sought to invoke the jurisdiction of the Court under the terms of the Declaratory Judgments Act, 28 U.S.C. § 2201, which provides:

"In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such."

The United States Attorney moved for summary judgment to dismiss the Complaint on the following grounds:

1. That the plaintiff was within the sole and exclusive jurisdiction of the Board of Parole and that the members of such Board were indispensable parties, were not served, and in fact were beyond the territorial jurisdiction of this Court.

2. That the Complaint fails to state a claim upon which relief can be granted.

3. The United States is immune from suit save where it has given its consent and that no such consent has been granted.

The Court is in agreement with the position of the United States Attorney on each of the grounds asserted in his Motion for Summary Judgment.

1. Jurisdiction over the plaintiff is with the United States Board of Parole, which is not made a party hereto.

18 U.S.C. § 4164 provides:

"A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.

"This section shall not prevent delivery of a prisoner to the authorities of any State otherwise entitled to his custody."

Pursuant to this section, Bell was issued a Certificate of Mandatory Release, which read, "Upon release the above named prisoner shall be under the jurisdiction of the United States Board of Parole." This jurisdiction is exclusive. The petition seeks to restrain the defendant, United States, and its agents from attempting to enforce the terms of the mandatory release. The only agency having jurisdiction over the petitioner is the Board of Parole. Neither the Board of Parole nor its members have been served, and they are indispensable parties to an action of this nature; nor is the Board or its members within the territorial jurisdiction of this Court. In United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6 Cir. 1944), the Court held:

"Under this provision the Parole Board has jurisdiction, not only over applicants to whom parole is granted, but over prisoners granted a reduction of sentence for good conduct who, when provisionally released, are subject to all provisions of the parole laws."

A released prisoner is not a free man. Prior to the expiration of his maximum term he is a ward of the Parole Board, subject to its control and care. Story v. Rives, 68 App.D.C. 325, 97 F.2d 182 (Court of Appeals, District of Columbia 1938).

The United States District Court for the Southern District of California found this situation squarely in the case of Carson v. Meador, 120 F.Supp. 260 (1954). In that case the petitioner asked for an adjudication that he was entitled to an unconditional release from all parole supervision. The Court held:

"That the petition fails to state a claim upon which relief can be granted and for non-joinder of indispensable parties to the action, i. e. members of the United States Board of Parole."

The Court pointed out:

"The period of commitment to custody was fixed by the District Court in imposing sentence. Thereafter the actual period of incarceration may be reduced by the United States Board of Parole which is vested with power to grant parole under certain circumstances * * *. The Court in this District does not have jurisdiction over the Board of Parole or its members concerning their functions at the seat of government. The Court cannot revise an order of that Board. The Board of Parole is in the Executive Branch of Government and our duty is strictly judicial."

Where a prisoner asked the District Court to be relieved of the conditions imposed by prison authorities upon his release the Court in Costner v. United States, 180 F.2d 892 (4 Cir. 1950), held that it had no jurisdiction to review an order of the Parole Board.

2. There is no jurisdiction over the United States.

Plaintiff invokes the jurisdiction of the Court under the terms of 28 U.S.C. § 2201. It is apparent that this statute is remedial only and serves only to grant a method of additional recourse where jurisdiction already exists. It does not confer jurisdiction. In the case of Anderson v. United States, 229 F.2d 675 (5 Cir. 1956), the Court held that the United States was not a proper party to the action inasmuch as no specific statute authorized an injunction against the United States under the particular circumstances. The Court further stated:

"Furthermore, the Declaratory Judgments Act, 28 U.S.C. § 2201, does not grant any consent of the United States to be sued."

In the case of Raydist Navigation Corporation v. United States, 144 F.Supp. 503 (1956), the United States District Court for the Eastern District of Virginia stated:

"While it is undoubtedly true that the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, is not a consent of the United States to be sued, and merely grants an additional remedy in cases where jurisdiction already exists, it follows that where, as here, the United States has given its consent to be sued under the Tucker Act, * * * a proceeding by way of declaratory judgment is deemed appropriate."

In the absence of consent to be sued, it is elementary that the United States as a sovereign is immune to suit. No consent has been granted to this action by 28 U.S.C. § 2201, nor has any other statute granting such consent been brought to the attention of this Court. The District Court is without jurisdiction over the United States in this matter.

3. The Complaint fails to state a claim upon which relief can be granted.

While the plaintiff's contention could be...