Faruq v. Herndon, Civ. No. K-88-2951.

Decision Date28 September 1993
Docket NumberCiv. No. K-88-2951.
Citation831 F. Supp. 1262
PartiesLeon FARUQ, et al. v. Elmanus HERNDON, et al.
CourtU.S. District Court — District of Maryland

Frances E. Kessler, Baltimore, MD, for plaintiffs.

J. Joseph Curran, Jr., Atty. Gen. of Maryland, and Stephanie Lane-Weber, Asst. Atty. Gen. of Maryland, for defendants.

FRANK A. KAUFMAN, Senior District Judge.

Plaintiffs in the within class action are all inmates in the custody of the Maryland Division of Correction (DOC) whose offenses were committed prior to January 18, 1988. They challenge the application to them of a new security classification system, effective January 18, 1988, which they claim makes it more difficult than did preceding classification systems for plaintiffs to progress through the correctional system to lesser security levels and work-release, thereby delaying or denying them release on parole, in violation of the ex post facto clause of the United States Constitution. U.S. CONST. art. I, § 10, cl. 1. The new system is set forth in Division of Correction Regulation (DCR) 100-1 (effective January 18, 1988, and revised effective July 1, 1991), which describes the classification process, and DCR 155-2 (effective April 1, 1991), which establishes eligibility criteria for work-release.

Plaintiffs consist of three classes. Class A includes all inmates in the custody of the DOC serving life sentences for offenses committed prior to January 18, 1988.1 Class B consists of all inmates in the custody of the DOC serving non-life sentences of 30 years or more for offenses committed prior to January 18, 1988.2 Class C encompasses all inmates in DOC custody who were affected by the decision in Green v. Hughes, Civ. No. Y-81-1841 (D.Md. June 9, 1982).3 Plaintiffs sue under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202,4 seeking declaratory,5 injunctive,6 and monetary relief7 against the Secretary of the Department of Public Safety and Correctional Services, officials of the DOC, and officials of the Maryland Parole Commission.8

I. PROCEDURAL HISTORY

This class action was commenced on October 3, 1988. In this case, plaintiffs, in an Amended Complaint, challenge the application to them of a new classification "point system," set forth in DCR 100-1, which went into effect on January 18, 1988, and which plaintiffs claimed made it more difficult than did the preceding classification systems for plaintiffs to progress to minimum security and work release, thereby making it more onerous for plaintiffs to receive parole. This Court signed two orders dated October 14, 1988, certifying two classes pursuant to Federal Civil Rule 23(a). Class A consisted of all inmates in the custody of the DOC serving life sentences for offenses committed before January 18, 1988, for whom DCR 100-1 (January 18, 1988) made it more difficult to progress to lower security and work release and therefore more difficult to attain parole.9 Class B was similarly defined, except that it consisted of all DOC inmates serving non-life sentences for offenses committed prior to January 18, 1988.10

Thereafter, defendants11 filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on October 31, 1988. Defendants contended that the action should be dismissed because, they claimed, the Amended Complaint essentially challenged only the fact or duration of the plaintiffs' imprisonment, in which case, an action in habeas corpus, not an action under 42 U.S.C. § 1983, is the exclusive remedy. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Defendants further argued that as the pursuit of a habeas corpus action in federal court requires the exhaustion of adequate and available state remedies, and as plaintiffs did not exhaust their state remedies, the action should be dismissed. In the alternative, defendants asserted that they were entitled to summary judgment on plaintiffs' ex post facto claims, arguing that DCR 100-1 (January 18, 1988) was not a "law" under the ex post facto clause and that it did not disadvantage plaintiffs.

Subsequently, plaintiffs filed an Opposition to Defendants' Motion to Dismiss on November 28, 1988, arguing that Preiser does not control and that an action under 42 U.S.C. § 1983 is proper, as the relief they seek is not release but, rather, classification pursuant to the previously promulgated guidelines. Defendants filed on March 20, 1989, a Supplemental Memorandum of Fact and Law in Support of Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and on April 21, 1989, plaintiffs filed an Opposition to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, contending that the application to them of DCR 100-1 not only violated the ex post facto clause, but also was inconsistent with a Maryland statute, MD.CODE ANN. Art. 41, § 4-516 (1990).12 Defendants responded on May 3, 1989, with their Reply, expanding upon their arguments that DCR 100-1 (January 18, 1988) does not violate the ex post facto clause and maintaining 1) that DCR 100-1 (January 18, 1988) was consistent with MD.CODE ANN. Art. 41, § 4-516, and 2) that the state-law claim of plaintiffs should be dismissed under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

This Court held a hearing on May 19, 1989, during which it held sub curia Defendants' Motion to Dismiss on the habeas corpus ground. During that hearing, plaintiffs orally moved for partial summary judgment in connection with that issue, and this Court received that oral motion. Therefore, there are currently pending cross-motions for summary judgment on the habeas corpus issue.

Also during the May 19, 1989, hearing, defendants withdrew their motion for summary judgment with regard to the ex post facto issue and agreed with plaintiffs to present that issue for determination of facts and law by this Court on the basis of the record as it presently existed, subject to certain supplementary materials to be presented to this Court the following month. In that light, plaintiffs refrained from filing a cross-motion for summary judgment with regard to the ex post facto issue. The parties also stated during the May 19, 1989, hearing that they were pursuing the possibility of entering into a consent decree.

On June 23, 1989, plaintiffs and defendants filed supplementary memoranda of facts and law with regard to the ex post facto issue. Defendants also submitted a proposed consent decree relating only to Class B, that is, to those plaintiffs serving non-life sentences. With regard to Class A inmates, the parties were content to abide by the arrangement agreed upon during the May 19, 1989 hearing. Ultimately, however, the proposed agreement was never approved by plaintiffs. Plaintiffs and defendants participated in numerous negotiation sessions concerning the revision of DCR 100-1. The revised DCR 100-1 was promulgated on July 1, 1991. Related to this, a new regulation on work release, DCR 155-2, was adopted on April 1, 1991. Plaintiffs agreed that the revised regulation was, in many respects, an improvement over the 1988 classification system. However, several groups of inmates still believed that they were disadvantaged by the 1991 regulation and wished to pursue their claims.

Plaintiffs filed their Second Amended Complaint on May 29, 1992, challenging the application to them of DCRs 100-1 (January 18, 1988 and July 1, 1991) and 155-2 (April 1, 1991). They also submitted a Motion to Amend Class Certification. This Court signed an Order granting plaintiffs' Motion to Amend Class Certification and certifying the three classes delineated, supra, i.e., Class A, consisting of DOC inmates serving life sentences for offenses committed prior to January 18, 1988; Class B, consisting of DOC inmates serving non-life sentences of 30 years or more for offenses committed prior to January 18, 1988; and Class C, encompassing DOC inmates affected by the decision in Green v. Hughes. Defendants filed their Answer on June 22, 1992, and on October 2, 1992, they filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, preserving all their arguments made in previous pleadings. Plaintiffs filed a Motion for Summary Judgment on November 25, 1992, similarly incorporating the arguments made in their previously filed memoranda.

II. FACTUAL BACKGROUND
A. The New Classification System

Pursuant to the authority of the Commissioner of the DOC to "adopt and promulgate reasonable rules and regulations," which "may be altered, amended or abrogated" by him, MD.ANN.CODE Art. 27, § 676 (1992), DCRs 100-1 (January 18, 1988 and July 1, 1991) and 155-2 (April 1, 1991) were promulgated. This new classification system utilizes an objective point system to determine both an inmate's initial security classification and any reclassifications. Within the DOC, there are four security levels: maximum, medium, minimum, and pre-release.13 Under the DCR, a classification team utilizes the initial classification instrument to arrive at an inmate's security score, which is based upon the totality of points assigned to certain factors, namely, severity of offense, sentence length, detainers, pending charges, warrants, prior incarcerations, history of escape, and history of violence.14See DCR 100-1 (July 1, 1991) App. 3. Based upon an inmate's security score, the instrument recommends assignment to a certain security level. However, the DCR provides that the classification team may override the instrument's recommendation. The warden or a designee must accept or reject the recommendation of the classification team in its entirety. See DCR 100-1 (July 1, 1991) VI.C.2. Under the DCR, an inmate serving a life sentence must be classified initially to maximum security. See DCR 100-1 (July 1, 1991) V.E.1.b. For inmates serving a sentence of 30 years or more, the instrument recommends initial classification to no less than medium security. See...

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7 cases
  • Campbell v. Cushwa
    • United States
    • Court of Special Appeals of Maryland
    • August 31, 2000
    ...the Parole Commission's parole recommendation policy ... is therefore a law for ex post facto purposes." Id. at 756. Faruq v. Herndon, 831 F.Supp. 1262, 1281 (D.Md.1993), aff'd. sub nom. Briscoe v. Herndon, 56 F.3d 60 (4th Cir.1995), also provides guidance. There, the appellants alleged tha......
  • Dominique v. Weld
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 15, 1995
    ...F.2d 1147, 1149-1150 (11th Cir.1988) (holding that state work release regulation was not an ex post facto "law"); Faruq v. Herndon, 831 F.Supp. 1262, 1279-1280 (D.Md.1993) (holding that work release and security classification regulations were not ex post facto "laws"), aff'd, Briscoe v. He......
  • Lomax v. Warden, Maryland Correctional Training Center
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1997
    ...court considers the rule or regulation to be legislative or interpretative. See, e.g., Ellen, 961 F.2d at 465-66; Faruq v. Herndon, 831 F.Supp. 1262, 1279-80 (D.Md.1993), aff'd sub nom. Briscoe v. Herndon, 56 F.3d 60 (4th In Ellen, the U.S. Court of Appeals for the Fourth Circuit considered......
  • Knox v. Lanham, JFM-93-1891.
    • United States
    • U.S. District Court — District of Maryland
    • July 31, 1995
    ...to an earlier version of Maryland's DCD 100-1 (then called DCR 100-1) was litigated recently in front of Judge Kaufman. Faruq v. Herndon, 831 F.Supp. 1262 (D.Md. 1993). There, the plaintiffs were two classes of inmates6 challenging changes to DCR 100-1 that allegedly slowed their progressio......
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