Douglas v. Sigler

• Decision Date: 28 November 1967
• Docket Number: No. 18794.,18794.
• Citation: 386 F.2d 684
• Parties: Donnell DOUGLAS, Appellant, v. Maurice H. SIGLER, Warden, Nebraska Penal Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

386 F.2d 684 (1967)

Donnell DOUGLAS, Appellant, v. Maurice H. SIGLER, Warden, Nebraska Penal Complex, Appellee.

No. 18794.

United States Court of Appeals Eighth Circuit.

November 28, 1967.

Donnell Douglas, pro se.

Clarence A. H. Meyer, Atty. Gen., and H. G. Hamilton, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Petitioner Donnell Douglas appeals in forma pauperis from the judgment of the United States District Court for the District of Nebraska, the Honorable Robert Van Pelt dismissing his civil action against the respondent Maurice H. Sigler, Warden Nebraska Penal Complex, seeking a permanent injunction and damages in the amount of $15,000. The complaint was dismissed without an evidentiary hearing as presenting only a question of law and in the opinion of the District Judge was controlled by his prior decision in Van Ness v. Sigler, Civil 1101L (unreported) (1965). We affirm.

Douglas is confined in the Nebraska Penal Complex under commitment from a State Court of Nebraska, which commitment is not challenged in this action. His complaint is that the action of the Warden in taking away or diminuting his credit for Good Time behavior under § 29-2633, R.R.S.Neb.1964, called Statutory Time, is illegal and void because the Nebraska Statute cited is "vague, overly broad and ambiguous," and thus violative of the Fourteenth Amendment guarantees of Due Process and Equal Protection of the Law. His claim for damages rests on the Civil Rights Statutes for alleged violation of constitutional rights in applying the Nebraska statute to his confinement.

By § 29-2632 R.R.S.Neb.1964, every convict confined in the Nebraska Penal and Correctional Complex shall be entitled to the diminution of time from his sentence of two months on the first and second year, three months on the third year and four months on each succeeding year, this diminution of time to be credited on the sentence at the time of admission, "but subject to forfeiture as provided in sections 29-2628 and 29-2633." Section 29-2628 deals with a parole violation and is not in issue in this case. The petitioner's complaint is directed to § 29-2633 which reads as follows:

"29-2633. Convicts; misconduct; loss of diminution of sentence; effect of good behavior thereafter.

"Whenever a charge of misconduct shall be sustained by the warden against a prisoner, he shall not lose the deduction of time specified in section 29-2632, but only that portion of good time earned to the date of the commission of the infraction, or as much as the warden deems proper. The prisoner may regain, by continuous good conduct thereafter, the restoration of time lost, or as much less thereof as the warden may deem proper, as a suitable reward for subsequent good conduct."

This statute is not "vague, overly broad or ambiguous" as claimed by the petitioner, and is therefore not subject to the constitutional infirmity of vague laws condemned in Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966). To the contrary, the statute is explicit and in clear terms affords any prisoner in the Nebraska Complex the privilege of earning a diminution of his sentence by good behavior and the observance of the rules, regulations and requirements of that institution.

The next question presented is whether the good time authorized under this statutory diminution of sentence had become vested in petitioner so as to preclude a forfeiture of the time remitted.

The allowance of good time to a prisoner and its denial or forfeiture are strictly matters of statute and are, of course, dependent upon the provisions of the particular statute under consideration. As a general rule the right to a good-time allowance is contingent until the time arises that its allowance will end imprisonment; the grant or denial of such an allowance is discretionary with the executive officer charged with the administration of its provisions; and its allowance is a matter of grace rather than a right. See Anno. 95 A.L.R.2d 1267 (1964).

This Circuit has consistently held that the right to good-time allowance under the federal statute "is merely contingent and does not become absolute or vested until the prisoner shall have earned the right by compliance with the statutory provisions." Douglas v. King, Warden, 110 F.2d 911, 127 A.L.R. 1200 (8 Cir. 1940). In Pagliaro v. Cox, 143 F.2d 900 (8 Cir. 1944), this Court concisely stated the controlling principle at p. 901:

"The allowance of good time, until earned for the entire term (Estabrook v. King, Warden 8 Cir., 119 F.2d 607, 609; Douglas v. King, 8 Cir., 110 F.2d 911, 913, 127 A.L.R. 1200; United States v. Nicholson, 4 Cir., 78 F.2d 468, 470, certiorari denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405), is a privilege which is conditioned expressly by the statute, sec. 710, Title 18 U.S.C.A., allowing it upon a record of conduct showing `that he has faithfully observed all the rules and has not been subjected to punishment.\' See Wipf v. King, 8 Cir., 131 F.2d 33, 34. The existence or the forfeiture of good time is in no sense dependent upon whether the misconduct also may be a criminal act."

These same principles are applicable to State statutes. The Seventh Circuit in dealing with a similar Illinois statute in Uryga v. Ragen, et al., 181 F.2d 660, 663 (7 Cir. 1950) held that the statute governing allowance for good time enters into all sentences but that the

"* * * allowance is not a vested right but a conditional one, which, by the statute, becomes effective only when the prisoner, having conducted himself properly, has earned an allowance. * * * In other words, a prisoner\'s good time is allowed at the end of his term of imprisonment, when and if its allowance, together with the time served, will entitle him to his discharge, the sentence thus having been served in full. The right to good time, then, is contingent until the time arrives when its authorized allowance will end his term of imprisonment. When however, he has so conducted himself that the right of credit is gone, it is as though it never accrued to him. Lupo v. Zerbst, 92 F.2d 362 (5 Cir.)."

The Nebraska diminution of sentence statute is also a conditional grant only, and when the good time has not vested, the reduction or forfeiture of a diminution of sentence raises no constitutional issue. The crediting of good time at the time of admission is conditional only and is subject to forfeiture for disciplinary reasons. State ex rel. Menard v. Nichols, 167 Neb. 144, 91 N.W.2d 308 (1958). This pre-crediting of good time amounts to no more than a bookkeeping entry and the good time must be fully earned before it becomes vested. It does not become vested under § 29-2633 until the prisoner has fully complied with the disciplinary and good behavior requirements up to the time of his dismissal from the Nebraska Complex.

The diminution of sentence statutes rests on legislative grace and not constitutional right. Brown v. Warden, U. S. Penitentiary, 351 F.2d 564 (7 Cir. 1965). See Hiatt v. Compagna, et al., 178 F.2d 42 (5 Cir. 1949), aff'd per curiam 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639; Douglas v. King, 110 F.2d 911, 127 A.L.R. 1200 (8 Cir. 1940). Though different considerations might apply to these statutes than to the parole statutes, the basis of the right or privilege extended is analogous to that set forth in the parole and probation statutes. Probation is a matter of legislative grace and may be revoked at any time during the period of probation for noncompliance with the conditions imposed. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932).

This privilege of probation has no constitutional...