Edwards v. Schmidt, No. 70-C-97.

CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin
Writing for the CourtJAMES E. DOYLE
Citation321 F. Supp. 68
PartiesMary Helen EDWARDS, Du Wayne Galloway, Henry Richardson, and Elizabeth Tostevin, on behalf of themselves and all persons similarly situated, Plaintiffs, v. Wilbur J. SCHMIDT, Secretary, State Department of Health and Social Services, State of Wisconsin, and Sanger B. Powers, Administrator, Division of Corrections, State Department of Health and Social Services, State of Wisconsin, Defendants.
Decision Date05 January 1971
Docket NumberNo. 70-C-97.

321 F. Supp. 68

Mary Helen EDWARDS, Du Wayne Galloway, Henry Richardson, and Elizabeth Tostevin, on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
Wilbur J. SCHMIDT, Secretary, State Department of Health and Social Services, State of Wisconsin, and Sanger B. Powers, Administrator, Division of Corrections, State Department of Health and Social Services, State of Wisconsin, Defendants.

No. 70-C-97.

United States District Court, W. D. Wisconsin.

January 5, 1971.


321 F. Supp. 69

Joseph F. Preloznik, Craig E. Miller, Madison, Wis., for plaintiffs.

Jeffrey B. Bartell, Asst. Atty. Gen., Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action for injunctive and declaratory relief brought on behalf of plaintiffs and all persons similarly situated. Fed.R.Civ.P. 23. Jurisdiction is claimed under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Plaintiffs are juveniles who have been adjudged delinquent and placed in the custody of the State Department of Health and Social Services by the Wisconsin juvenile courts. They challenge the constitutionality of the subsequent action of the State Department of Health and Social Services in administratively transferring them to adult correctional institutions where they are commingled with adult prisoners.

Defendants have moved to dismiss upon the grounds that (1) plaintiffs have not exhausted available state court remedies and 42 U.S.C. § 1983 may not be used in a situation appropriate to habeas corpus relief so as to circumvent the exhaustion requirements of the federal habeas corpus statutes, 28 U.S.C. § 2254, and (2) the complaint fails to state a claim upon which relief can be granted.

In addition, plaintiffs have moved for a preliminary injunction enjoining defendants from intermingling and integrating adult prisoners with juvenile delinquents and, alternatively, enjoining defendants from administratively transferring juvenile delinquents to adult prisons.

HABEAS CORPUS OR SEC. 1983?

The Riddle

Federal district courts receive many petitions from state prisoners requesting judicial relief to redress some alleged deprivation of constitutional rights. Typically, prisoners do not have the assistance of counsel and the petitions are vaguely worded and inarticulate. The petitioner may characterize his prayer as a petition for a writ of habeas corpus, as a § 1983 action (with jurisdiction claimed under 28 U.S.C. § 1343(3)), as both, or he may not specify which of these types of action he seeks to bring. In the case at bar, the plaintiffs, who are represented by counsel, bring this action under 42 U.S.C. § 1983, but the defendants insist it must be treated as an application for a writ of habeas corpus.

There is a recurrent riddle which arises in such cases if we make two assumptions. There is much broad language in the cases to support each assumption. For purposes of describing the riddle I accept them as true. The assumptions are: (1) as a condition precedent to issuance of a writ of habeas corpus, a state prisoner must have exhausted all state court remedies, and (2) a person seeking relief under § 1983 need not exhaust state remedies.

It then appears that the disposition of a case brought by a prisoner who has not exhausted state court remedies will turn on whether it is characterized as an application for a writ of habeas corpus or as a § 1983 action. The district court has jurisdiction over an application for a writ of habeas corpus from a state

321 F. Supp. 70
prisoner "in custody in violation of the Constitution * * * of the United States," 28 U.S.C. § 2241(c) (3). Since any state "custody in violation of the Constitution" could be described as a "deprivation under color of * * * state law, statute, ordinance, custom or usage, of a right * * * secured by the Constitution of the United States * * *," 28 U.S.C. § 1343(3), 42 U.S.C. § 1983, it also appears that any habeas application from a state prisoner could be considered a § 1983 suit. To muddy the waters further, many § 1983 requests for injunctive relief by a state prisoner could be characterized as habeas corpus actions. This is because the notion of "custody" has been extended from physical restraints to more general restraints on liberty, cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and because the relief granted to a habeas petitioner can be shaped to the circumstances and need not be outright release, 28 U.S.C. § 2243 ("The court shall * * * dispose of the matter as law and justice require."), see also, Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1079-1087 (1970)

For purposes of analyzing the riddle, I distinguish between two classes of prisoner suits: (1) those in which the prisoner attacks his trial or sentencing in the state courts and seeks to void the present effects on him of the state court judgment; and (2) those in which the prisoner, though lawfully in prison, is deprived by prison administrators of some right to which he considers himself constitutionally entitled even in prison, and he seeks relief from this additional deprivation of liberty. I will refer to the former as "traditional habeas suits" and to the latter as "extraordinary prisoner suits."

The "Circumvention Rule"—Case Law

By the "circumvention rule" I mean the rule that § 1983 may not be used in a situation appropriate to habeas corpus relief, as an alternative to habeas corpus, so as to circumvent the exhaustion requirements (28 U.S.C. § 2254) of habeas corpus. Defendants' contention here is that this action should be dismissed because the circumvention rule is controlling.

It is not surprising that the majority of cases in which this circumvention rule has been embraced have been traditional habeas suits. Gaito v. Ellenbogen, 425 F.2d 845 (3rd Cir. 1970); Bennett v. Allen, 396 F.2d 788 (9th Cir. 1968); Gaito v. Strauss, 368 F.2d 787, 788 (3rd Cir. 1966), cert. denied 386 U. S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 139; Johnson v. Walker, 317 F.2d 418 (5th Cir. 1963); Smith v. Logan, 311 F. Supp. 898 (W.D.Va.1970); United States ex rel. Watson v. Commonwealth of Pennyslvania, 289 F.Supp. 797 (E.D. Pa.1968); Martin v. Roach, 280 F.Supp. 480 (S.D.N.Y.1968); Duncombe v. New York, 267 F.Supp. 103 (S.D.N.Y.1967); May v. Peyton, 268 F.Supp. 928 (W.D. Va.1967); Davis v. State of Maryland, 248 F.Supp. 951 (D.Md.1965); In re Ryan, 47 F.Supp. 1023 (E.D.Pa.1942). A few courts have gone so far as to apply the circumvention rule to suits for damages under § 1983, Still v. Nichols, 412 F.2d 778 (1st Cir. 1969); Gaito v. Strauss, supra; Smith v. Logan, supra; King v. McGinnis, 289 F.Supp. 466 (S. D.N.Y.1968); Lombardi v. Peace, 259 F.Supp. 222 (S.D.N.Y.1966). This position seems unsound and has been repudiated in Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969) (holding, inter alia, that the trial court erred in dismissing prisoner's § 1983 suit for damages on the ground that he had not exhausted state remedies) (dismissal affirmed on other grounds). See also, Still v. Nichols, 412 F.2d 778, 779 (1st Cir. 1969).

In two cases combining features of both traditional habeas suits and extraordinary prisoner suits,1 courts have

321 F. Supp. 71
invoked the circumvention rule. Peinado v. Adult Authority of the Department of Corrections, 405 F.2d 1185 (9th Cir. 1969), and United States ex rel. Hunter v. Bibb, 249 F.2d 839 (7th Cir. 1957)

In Peinado, the state prisoner claimed a violation of constitutional rights on the grounds that: (1) in a prison disciplinary hearing, the committee refused to call two witnesses who would have exculpated him, supra, 405 F.2d at 1185; (2) he was denied parole because of the disciplinary charge, and the parole board disregarded his contention that the two witnesses he had desired to call would have established that he was not guilty of the charge, id.; and (3) the state statute under which he was sentenced was unconstitutionally vague, id. at 1186. Under my classification, the first two claims would be the basis of an extraordinary prisoner suit, while the latter would be a traditional habeas suit. Plaintiff sought release from custody (presumably on the basis of the third claim) and also "judicial assistance to compel the prison authorities to accord him the assertedly constitutional right to call witnesses in his own behalf at a prison disciplinary hearing, or at a hearing * * * to determine eligibility for parole." Id. at 1186. In affirming the district court's order of dismissal, the Court of Appeals invoked the circumvention rule. Id. But it would appear that it applied this rule only to plaintiff's third claim, since it separately rejected the other claims as claims under § 1983:

"This brings us to Peinado's contention that, apart from release from custody, he seeks judicial assistance in obtaining the right to call witnesses in a prison disciplinary or Adult Authority parole eligibility proceeding.
"It has recently been held that a person on probation is entitled to legal assistance in a proceeding to revoke the probation. Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed. 2d 336. However, we are not aware of any judicial authority for extending rights which have constitutional standing in a criminal or probation-revocation proceeding to prison disciplinary proceedings or proceedings involving eligibility for parole. In our opinion the Civil Rights Act may not be invoked to require that the right to call witnesses be extended to parole eligibility proceedings, at least in the absence of an allegation that an invidious discrimination, such as on the basis of race or religion, is being practiced. Peinado alleges no such discrimination." Id.

Therefore, with respect to the circumvention rule, Peinado fits the category of a traditional habeas suit.

United States ex rel. Hunter v. Bibb, supra, is difficult. The district court opinion is unreported, and the Court of Appeals tells us...

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14 practice notes
  • Cross v. Powers, No. 69-C-74.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • June 23, 1971
    ...to cases which I would denominate extraordinary prisoner suits (as contrasted with habeas corpus proceedings). Edwards v. Schmidt, 321 F.Supp. 68, 69-70 (W.D.Wis.1971). However, Johnson's suit was treated by the district court as a petition for a writ of habeas corpus, Johnson v. Avery, 252......
  • Preiser v. Rodriguez 8212 1369, No. 71
    • United States
    • United States Supreme Court
    • May 7, 1973
    ...U.S. 114, 116 117, 64 S.Ct. 448, 449—450, 88 L.Ed. 572 (1944); cf. Sostre v. McGinnis, 442 F.2d 178, 182 (CA2 1971); Edwards v. Schmidt, 321 F.Supp. 68, 74—75 (W.D.Wis.1971). We have grounded the doctrine squarely on the view that 'it would be unseemly in our dual system of government for a......
  • Guerro v. Mulhearn, No. 73-1005
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 24, 1974
    ...found that no exhaustion requirement should be imposed. See Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis.1971); see also Gaito v. Strauss, 249 F.Supp. 923, 930 (W. D.Pa.), aff'd on different grounds, 368 F.2d 787 (3rd Cir. 1966), cert. denied......
  • Nelson v. Schmidt, No. 71-C-70
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • December 14, 1973
    ...Prior to Preiser, I had held that challenges to denial of good time credits could be maintained under § 1983. In Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis., 1971), I distinguished the categories of "extraordinary prisoner suits" and "traditional habeas suits." The latter were directed aga......
  • Request a trial to view additional results
14 cases
  • Cross v. Powers, No. 69-C-74.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • June 23, 1971
    ...to cases which I would denominate extraordinary prisoner suits (as contrasted with habeas corpus proceedings). Edwards v. Schmidt, 321 F.Supp. 68, 69-70 (W.D.Wis.1971). However, Johnson's suit was treated by the district court as a petition for a writ of habeas corpus, Johnson v. Avery, 252......
  • Preiser v. Rodriguez 8212 1369, No. 71
    • United States
    • United States Supreme Court
    • May 7, 1973
    ...U.S. 114, 116 117, 64 S.Ct. 448, 449—450, 88 L.Ed. 572 (1944); cf. Sostre v. McGinnis, 442 F.2d 178, 182 (CA2 1971); Edwards v. Schmidt, 321 F.Supp. 68, 74—75 (W.D.Wis.1971). We have grounded the doctrine squarely on the view that 'it would be unseemly in our dual system of government for a......
  • Guerro v. Mulhearn, No. 73-1005
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 24, 1974
    ...found that no exhaustion requirement should be imposed. See Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis.1971); see also Gaito v. Strauss, 249 F.Supp. 923, 930 (W. D.Pa.), aff'd on different grounds, 368 F.2d 787 (3rd Cir. 1966), cert. denied......
  • Nelson v. Schmidt, No. 71-C-70
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • December 14, 1973
    ...Prior to Preiser, I had held that challenges to denial of good time credits could be maintained under § 1983. In Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis., 1971), I distinguished the categories of "extraordinary prisoner suits" and "traditional habeas suits." The latter were directed aga......
  • Request a trial to view additional results

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