Harper v. Gibson
| Decision Date | 04 August 1987 |
| Docket Number | No. S 85-514 and S 86-86.,S 85-514 and S 86-86. |
| Citation | 666 F. Supp. 1252 |
| Parties | Dale Gaylord HARPER, Plaintiff, v. Robert GIBSON; Bruce Lemmon; Mrs. Nancy Broglin; Sam Puckett; Dean Duval; and Dr. Norman Hunt, Defendants. Dale Gaylord HARPER, Petitioner, v. Jack R. DUCKWORTH, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Dale Gaylord Harper, pro se.
William Patrick Glynn III, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
Dale Gaylord Harper, plaintiff and petitioner in the above consolidated cases (hereafter petitioner), filed a complaint pursuant to 42 U.S.C. § 1983 and a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Defendants and respondent (hereafter respondents) have complied with the dictates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). This court issued an order in both consolidated cases on January 21, 1987, stating that all materials in support or opposition to the respondents' summary judgment motions to be filed by February 17, 1987. Neither the petitioner nor the respondents filed any motions. This cause is now ripe for ruling.
The events which gave rise to petitioner's causes involve a disciplinary hearing at which petitioner was found guilty of escape. While confined at the South Bend Work Release Center (SBWRC), petitioner allegedly escaped on March 29, 1984. Petitioner was apprehended in Indianapolis on or about July 21, 1984, and was returned to South Bend. The Conduct Adjustment Board (CAB) notified petitioner of the escape charges against him on August 22, 1984. When the CAB met on August 28, 1984, it received petitioner's request that the hearing be postponed. The CAB postponed the hearing until Robert Gibson, Director of the SBWRC, had an opportunity to decide the request. On August 30, 1984, Gibson denied petitioner's request when the CAB reconvened. Petitioner's hearing then proceeded, though petitioner left the hearing room before the conclusion of his hearing. The CAB found petitioner guilty of escape and recommended that he be transferred to a more secure facility, demoted him from credit class I to credit class III, and deprived him of 365 days of earned good-time.
In his habeas petition, S 86-86, petitioner raises two issues. Petitioner asserts in Ground One that the requirement that he exhaust state remedies prior to filing a petition for a writ of habeas corpus in this court was inapplicable since he did not have that right under Indiana law. In Ground Two, petitioner asserts that the failure of respondent prior to the holding of a disciplinary hearing to afford petitioner due process as required by I.C. § 35-50-6-4(c) and I.C. § 35-50-6-5.5, deprived petitioner of due process of law contrary to the Fourteenth Amendment of the Constitution of the United States. In support of Ground Two, petitioner claims that the respondents failed to allow petitioner a reasonable continuance to prepare for the hearing, refused to allow petitioner to call witnesses, refused to allow petitioner to cross-examine witnesses, refused to allow petitioner to appeal the decision of the disciplinary committee, and refused to allow petitioner to have the assistance of counsel or a lay advocate to assist in the presentation of his case. As a remedy, petitioner asks that his earned good-time be restored.
Before a prisoner brings a habeas action in federal court, it is axiomatic that he exhaust his available state remedies. Exhaustion of state remedies is considered to be a procedural prerequisite to the consideration of a habeas claim by a federal court. 28 U.S.C. § 2254(b) and (c); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). See also Crump v. Lane, 807 F.2d 1394 (7th Cir.1986). If a state remedy is unavailable or resort to a state remedy would be futile, it is the prisoner's burden to demonstrate that such a remedy is unavailable or that resort to such a remedy would be futile. Wallace v. Duckworth, 778 F.2d 1215 (7th Cir.1985); Moore v. Duckworth, 581 F.2d 639 (7th Cir.1978), aff'd, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); and Baldwin v. Lewis, 442 F.2d 29 (7th Cir.1971). Petitioner has not shown that a state remedy is unavailable or that resort to such a remedy would be futile. In fact, a state remedy does exist under Rule PC 1, § 1(a)(5) of the Indiana Rules of Procedure for Post-Conviction Remedies:
Indiana Rules of Court, 1987. See Duckworth v. Serrano, supra; Wallace v. Duckworth, supra; and Evans v. Lane, 419 F.2d 1337 (7th Cir.1970). Petitioner has not shown that resort to Rule PC 1 is unavailable or would be futile. See also Hendrix v. Duckworth, 442 N.E.2d 1058 (Ind.1982); and Cottingham v. State, 424 N.E.2d 105 (Ind.1981). Even if petitioner can show that resort to Rule PC 1 is unavailable or would be futile, the Indiana Uniform Declaratory Judgments Act provides an alternative remedy. See Indiana Code § 34-4-10-1 et seq. (1983). In Helton v. Broglin, 581 F.Supp. 46 (N.D.Ind. 1984), this court held that Indiana Rule PC 1 was an available state court remedy when a prisoner is challenging the loss of good-time credits and demotion in time earning classification, but that a declaratory judgment action in state court is an otherwise "available procedure." This court stated:
Helton, 581 F.Supp. at 48. Thus, unexhausted state court remedies are readily available for this petitioner, beginning with resort to PC 1. Although not decided in this circuit, Brown v. Fauver, 819 F.2d 395 (3d Cir.1987), supports the reasoning and result here. Accordingly, petitioner's habeas portion of this consolidated cause in which he seeks restoration of his good-time credits must be dismissed without prejudice for failure to exhaust state remedies.
Now this court must consider the more difficult question of whether petitioner should be granted damages for loss of earned good-time in violation of the due process clause of the Fourteenth Amendment. In Cause No. § 85-514, petitioner prays that the court grant him $50,000 as damages for the loss of earned good-time in violation of the due process clause of the Fourteenth Amendment, and for $50,000 as punitive damages for the mental anguish and suffering caused by being confined one year in prison as the result of lost earned good-time. Petitioner's amended complaint states:
Indiana Codes XX-XX-X-X and XX-XX-X-X.5 creates a liberty interest which entitled plaintiff to procedural due process in a disciplinary hearing, and the failure of defendants, each and all, to afford plaintiff those rights enunciated in IC XX-XX-X-X and XX-XX-X-X.5 deprived plaintiff of due process of law, contrary to the fourteenth amendment to the United States Constitution.
In support of this allegation, petitioner asserts the same reasons he listed in support of Ground Two in his habeas petition. See p. 3 of this memorandum and order. In essence, the grounds raised in Cause No. S 85-514 are the same as those raised in Cause No. S 86-86. Only the remedies prayed for are different.
At first glance, it would appear that since Cause No. S 85-514 is a § 1983 case, it would not be necessary to exhaust state remedies prior to filing that case in federal court. In Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14, 93 S.Ct. 1827, 1841 n. 14, 36 L.Ed.2d 439 (1973), the Supreme Court expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings when a habeas claim and a § 1983 claim are filed together. Unlike federal habeas claims, § 1983 actions are not subject to the requirement that the plaintiff must first exhaust all available state court remedies. That holding was buttressed in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). There the Supreme Court held that where a complaint sought restoration of good-time credits and also sought damages, the claims brought properly under § 1983 could go forward while actual restoration of good-time credits was sought in a habeas proceeding through the state courts. The Court concluded that it was proper for the Court of Appeals and the District Court to determine the validity of the procedures for revoking good-time credits and to fashion appropriate remedies for any constitutional violations ascertained, short of ordering the actual restoration of good time already cancelled. Wolff, 418 U.S. at 555, 94 S.Ct. at 2974.
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