Bricker v. Michigan Parole Bd., Civ. A. No. 5-72237.

• Decision Date: 18 December 1975
• Docket Number: Civ. A. No. 5-72237.
• Citation: 405 F. Supp. 1340
• Parties: Samuel BRICKER, Plaintiff, v. MICHIGAN PAROLE BOARD, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

405 F. Supp. 1340

Samuel BRICKER, Plaintiff, v. MICHIGAN PAROLE BOARD, et al., Defendants.

Civ. A. No. 5-72237.

United States District Court, E. D. Michigan, S. D.

December 18, 1975.

COPYRIGHT MATERIAL OMITTED

Michael S. Friedman, Lustig & Friedman, P. C., Southfield, Mich., for plaintiff.

Max E. Simon, Asst. Atty. Gen., Lansing, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

Plaintiff Samuel Bricker has filed this action for injunctive relief and damages pursuant to 42 U.S.C. §§ 1983, 1985, and 1988 against the Michigan Board of Parole, the individual board members, and one parole officer. He claims: (1) that a parole restriction, i. e., that he not work for Central Sanitation Services (CSS) in any capacity, inhibits his right to seek gainful employment, subjects him to financial hardship, and restricts his fundamental rights of liberty; (2) that the Board wrongfully revoked his parole on September 4, 1975, in that it relied on insufficient evidence to justify revocation, thus subjecting plaintiff to re-incarceration, loss of his freedom, and loss of income; (3) that parole officer John Clarke conspired with various unknown individuals to harass plaintiff by imposing unnecessary and onerous conditions of parole on him and subjecting him to a closer supervision than that accorded most parolees; (4) that the Board of Parole is not validly constituted. The respondent has filed a motion to dismiss or in the alternative for summary judgment.

These motions present four issues for resolution: (1) Whether the Michigan Board of Parole is subject to suit under § 1983; (2) Whether the parole condition that plaintiff not work for CSS in any capacity violates plaintiff's constitutional rights, thus giving rise to a suit for damages and injunctive relief under § 1983; (3) Whether the individual members of the Board of Parole are immune from suit for damages under § 1983; (4) Whether the complaint states a claim regarding the alleged conspiracy of Parole Officer John Clarke.

On October 30, 1973, Samuel Bricker began serving a sentence of six months to four years following a state conviction for conspiracy to commit abortion. After exhausting all appellate remedies in the state courts, the Michigan Board of Parole placed him on parole in June, 1974, and subsequently amended his conditions of parole to restrict him from employment at CSS.¹ Between June 24, 1975 and October 24, 1975, Bricker was reincarcerated for allegedly violating this condition. On October 24, 1975, Bricker was re-released on parole with the same condition of parole. The Board also declined to permit him to be self-employed as a broker for waste removal services because of the difficulties involved in supervising such employment.

The § 1983 Action Against the Board of Parole

The Board of Parole is not a person within the meaning of section 1983 on both claims for damages and injunctive relief for the reasons given by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Madden v. New Jersey State Board of Parole, 438 F.2d 1189, 1190 (3d Cir. 1971); Paige v. Pennsylvania State Board of Parole, 311 F.Supp. 940, 941 (E.D.Pa.1970); Glancy v. Parole Board of the Michigan Department of Corrections, 287 F.Supp. 34, 36 (W.D.Mich.1968). Therefore, this action cannot be maintained against the Board.

Conditions of Parole Allegedly Giving Rise to § 1983 Claims

Federal courts are loathe to interfere in the administration of state prisons absent a violation of a federal constitutional right, Holt v. Sarver, 442 F.2d 304, 307 (8th Cir. 1971); Burke v. Levi, 391 F.Supp. 186, 189 (E.D.Va.1975). The parole system is a part of the state correctional system in that parole is a form of custody whereby the prisoner leaves his place of incarceration while remaining in the legal custody and control of the Board of Parole until termination of his sentence. Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). That the release of prisoners on parole has become an integral part of the penological system was made clear in Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972), when the court stated, "The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." The Morrissey court recognized that conditions of parole restrict a prisoner's activities substantially beyond the ordinary restrictions imposed by law on the average citizen; thus, a prisoner on parole could be restricted to a particular community, job, or home at the direction of his parole officer. Id. at 478, 92 S.Ct. 2593; Marrero v. Warden, 483 F.2d 656, 661 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).

A state is not constitutionally required to provide for parole. Rose v. Haskins, 388 F.2d 91, 93 (6th Cir. 1968). If the state does provide for parole, it may stipulate its terms and conditions as well as the status of the parolee. Hamilton v. Ford, 362 F.Supp. 739, 742 (E.D. Ky.1973); Singleton v. Shaffer, 313 F.Supp. 1094, 1096 (E.D.Pa.1970). Reasonable conditions restricting state prisoners on parole may be imposed. Forrester v. California Adult Authority, 510 F.2d 58, 61 (8th Cir. 1975).

In Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972), in a habeas corpus proceeding a prisoner whose parole had been revoked argued that a restriction imposed by the parole board preventing him from associating with individuals having criminal records violated his First Amendment freedom of association. The court stated:

"It has been properly held that the Government can infringe the first amendment rights of prisoners so long as the restrictions are reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment . . . By the same token, when a convict is conditionally released on parole, the Government retains a substantial interest in insuring that its rehabilitative goal is not frustrated and that the public is protected from further criminal acts by the parolee."

The court then found that the challenged restriction was reasonably and necessarily related to the government's interest in supervising the prisoner's activities during the term of his sentence and thus did not violate the prisoner's First Amendment rights.

The court holds that the restriction against working for CSS was shown by the record to be reasonably related to the purpose of the plaintiff's parole and that the difficulties of supervising a self-employed broker for waste removal services are reasonable grounds for imposing the condition that he not be self-employed.

Although the restrictions may result in diminished income during the remainder of the sentence, there is no indication that plaintiff will be deprived thereby of the right to work at other acceptable employment at a higher salary.² Since parole is an extension of confinement, a limitation resulting in diminished income during parole does not constitute a constitutional violation. Had plaintiff remained incarcerated for the entire period of his sentence, his income from prison employment would have been negligible.

This court will not second guess the Michigan Parole Board in its determination that these conditions were necessary to petitioner's rehabilitation because they would constitute interference with the state penal system without a showing of a violation of federal rights. A federal court will not superimpose its own judgment on the exercise of the parole board's discretion.³

Plaintiff alleges that the Board of Parole members acted wrongfully in ordering that he be closely supervised while on parole. Michigan law provides that the Board of Parole shall specifically state conditions of parole and provide for proper supervision of the parolee in accordance with board rules and pursuant to its discretion. M.C.L.A. § 791.236. Thus, the Board of Parole had discretion to order a "tight parole" with regard to Bricker. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Supreme Court held that a conscious exercise of selective enforcement of criminal statutes is not in itself a federal constitutional violation unless the selection is based on an unjustifiable standard such as race or religion. Bricker cannot prevail on his claim that he was more rigorously supervised than other parolees absent an allegation that such supervision resulted from the use of an unjustifiable standard.

The court will dismiss Bricker's claim that the Parole Board relied on insufficient evidence in its findings that Bricker violated his parole. There is no allegation that the required Morrissey hearings were not held. In addition the court will not examine the factual basis for the parole board's determination that a parole violation had occurred. Since plaintiff is attacking his reincarceration in a state prison, it would appear that he cannot cast this claim as a civil rights claim. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The plaintiff raised the identical issue in a prior habeas petition, dismissed by this court on September 5, 1975, for failure to exhaust state remedies, In Re Bricker, Civil Action No. 5-71644 (E.D.Mich.). By clothing this claim in civil rights raiment plaintiff hopes to circumvent the exhaustion requirement. For the purpose of this motion the court accepts the allegation that the Parole Board's determination that plaintiff had violated parole might have been erroneous, but the Board's errors should be corrected through the state appellate process.

Immunity

Defendants argue that Parole Board members are immune from a suit for damages under § 1983 for the same reason that judges are immune from such suits. Pierson v. Ray, 386 U.S. 547, 87 S.Ct....