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 |
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.
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:
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 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 basis, but rests upon legislative grace that operates as a conditional grant only subject to revocation and imposition of any sentence commensurate with the original sentence, or if no sentence were initially imposed with any sentence that...
To continue reading
Request your trial-
Morrissey v. Brewer
...1970); Courtney v. Bishop, 409 F.2d 1185 (8th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). Unless infringement of a paramount constitutional right is involved, as, for example, in the case of infliction of cruel and......
-
Anderson v. Nosser
...386 F. 2d 825 (8 Cir. 1967), cert. denied, 390 U.S. 1045, 88 S.Ct. 1646, 20 L.Ed.2d 307, as well as to state prisons, Douglas v. Sigler, 386 F.2d 684, 688 (8 Cir. 1967); Lee v. Tahash, 352 F.2d 970, 971 (8 Cir. 1965); Wright v. McMann, supra, 387 F.2d at "However, the courts, including this......
-
Landman v. Royster
...with "good time" claims under the Civil Rights Act. United States ex rel. Campbell v. Pate, 401 F.2d 55 (7th Cir. 1968); Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). The rule of Rodriguez v. McGinnis, supra, does not prevail in this Whether certain procedural prerequisites are required ......
-
Carothers v. Follette
...is no constitutional right to it, People ex rel. Schussler v. Denno, 143 N.Y.S.2d 690 (Sup.Ct. Westchester Co. 1955); Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967); Medlock v. Burke, 285 F.Supp. 67 (E.D.Wis.1968), and that a prisoner may lose good time earned as a disciplinary measure, Sm......
-
Recent Legal Developments
...strip searches. Correctional Law Reporter, 20(4), 50-51, 54-55. Comstrock v. McCrary, 273 F.3d 693 (6th Cir. 2001).Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967).Eisenberg, H. (1993). Rethinking prisoner civil rights cases and the provision of counsel. Southern Illinois University Law Jour......