Jordon v. Keve

• Decision Date: 02 December 1974
• Docket Number: Civ. A. No. 74-122.
• Citation: 387 F. Supp. 765
• Parties: Oscar Eddie JORDON, Jr., Curtis Ray Jordon, Plaintiffs, v. Paul W. KEVE, Director of Delaware Division of Adult Corrections, et al., Defendants.
• Court: U.S. District Court — District of Delaware

387 F. Supp. 765

Oscar Eddie JORDON, Jr., Curtis Ray Jordon, Plaintiffs, v. Paul W. KEVE, Director of Delaware Division of Adult Corrections, et al., Defendants.

Civ. A. No. 74-122.

United States District Court, D. Delaware.

December 2, 1974.

Oscar Eddie Jordon, Jr. and Curtis Ray Jordon, each appearing pro se.

Francis A. Reardon, Deputy Atty. Gen., Wilmington, Del., for defendants.

OPINION AND ORDER

LATCHUM, Chief Judge.

On June 24, 1974, Curtis R. Jordon and Oscar Eddie Jordon, Jr., who are currently incarcerated in the Maximum Security Building of the Delaware Correctional Center ("Center"), filed a complaint requesting that (1) they "be allowed access to any academic or rehabilitative programs," and (2) that the Court "order the administration to show due cause as to the reasons petitioners cannot be allowed a reduced security building, i. e., medium security."¹ Named as defendants were Paul W. Keve, Director of the Delaware Division of Adult Corrections, Raymond W. Anderson, Warden, and Walter W. Redman, Deputy Warden of the Center (the "Administration"). On September 10, 1974 defendants answered and simultaneously moved to dismiss² on the grounds (1) that the complaint fails to state a cause of action upon which relief can be granted, and (2) that the petitioners fail to raise a constitutional question to justify the intervention of the federal court. Having carefully considered the underlying issues, this Court will dismiss the complaint on the first ground.

From the complaint and the answer, the following undisputed facts emerge. On or shortly before December 11, 1972, Oscar E. Jordon, Jr., and Curtis Ray Jordon were placed in the pre-trial building of the Center to await their criminal trial in the state court. While confined there, they were allowed "to enter academic programs." On April 16, 1973, a detainer was lodged against both petitioners for escape from a Greenville, South Carolina correctional institution. On April 23, 1973, Oscar E. Jordon, Jr. was sentenced by the state court to 18 months on a charge of assault upon a police officer; thereafter, a pre-trial classification team recommended him for medium security. However, the institutional classification committee of the Center classified him for maximum security on May 2. He "was placed in maximum security" on May 2, 1973;³ on May 9, Curtis R. Jordon requested to be transferred to maximum security "to join my brother." Both petitioners were sentenced by the state court on July 20, 1973, on a charge of robbery, Oscar for 12 years and Curtis for 15 years. At no time have disciplinary charges been lodged against either petitioner.

Petitioners allege that they "were placed in" the maximum security building on May 9, 1973 without ever being formally notified by the Administration why they were so placed and that they were not formally notified as to the reason for their restriction to the maximum security building or for the termination of their participation in academic programs available to pre-trial detainees. Essentially, petitioners challenge the constitutionality of their initial maximum security classification.

Jurisdiction of this Court arises either under 28 U.S.C. § 1343(4) as implemented by 42 U.S.C. § 1983, or under 28 U.S.C. § 2254, the federal habeas corpus statute. Habeas corpus is the exclusive jurisdictional basis where a prisoner both attacks the "very fact or duration of his physical confinement" and demands only immediate or earlier release from that confinement. Preiser v. Rodriguez, 411 U.S. 475, at 487, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).⁴ In Preiser, the prisoners sought restoration of accrued good time credits, a statutory right of which they had been stripped in disciplinary proceedings, and which, if restored, would have shortened the duration of their incarceration by a pre-determined amount.⁵ Post-Preiser decisions do not view the Court's opinion as intended to be limited to requests for restoration of statutory good time credits. However, most of these decisions have continued to accept 28 U.S.C. § 1343(4) as implemented by 42 U.S.C. § 1983 as the jurisdictional basis of a variety of complaints for equitable relief because, as they interpret Preiser, habeas corpus jurisdiction still encompasses only those complaints requesting, by reason of a state statute or regulation, immediate release or a pre-determined speed-up of the date of release. For specific articulation of this rationale, see Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 926 (C.A.2, 1974) (minimum due process requirements when discretionary parole release is denied); Clutchette v. Procunier, 497 F.2d 809, 813 (C.A.9, 1974) (minimum due process requirements for disciplinary proceedings in non-"good time" credit context) (dissent on basis of prolongation of prison term); Clarence Davidson v. Keve, C.A. No. 74-128 (D.Del. Sept. 24, 1974), at 2, n. 2 (unconstitutional disciplinary measures); Wingard v. State of North Carolina, 366 F.Supp. 982, 983 (W.D.N.C.1973) (prison officials misconstruing the nature of plaintiff's sentence resulted in denial or delay of participation in rehabilitation programs, parole, etc.).⁶ Even more numerous are the post-Preiser decisions which have accepted this rationale sub silentio. E. g., Jones v. Institutional Classification Committee Field Unit No. 8, 374 F.Supp. 706 (E.D.Va.1974); Jenkins v. Keve, C.A. 74-101 (D.Del. Sept. 20, 1974), at 6; Gray v. Creamer, 376 F.Supp. 675, 680-681 (W.D.Pa. 1974), on remand from 465 F.2d 179 (C.A.3, 1972), reversing 329 F.Supp. 418 (W.D.Pa.1971).

It is evident that under the accepted interpretation of Preiser v. Rodriguez the complaint of the petitioners in the instant case is not a habeas corpus petition. Because their attack is focused on the initial classification decision following sentences of prolonged confinement in the Delaware prison system, a holding by this Court that they have been unconstitutionally classified cannot result in a definite speedup of their release.⁷ Therefore, the jurisdiction of this Court arises under 28 U.S.C. § 1343(4) as implemented by 42 U.S.C. § 1983, rather than 28 U.S.C. § 2254, and the petitioners need not allege the exhaustion of remedies required by the latter statute.

The next issue before the Court is the defendants' effort to dismiss the complaint for lack of a cause of action under 42 U.S.C. § 1983. The Supreme Court has held that "allegations of the pro se complaint . . . are held to less stringent standards than formal pleadings drafted by lawyers," and that it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Accord, Gray v. Creamer, 465 F.2d 179, 181-182 (C.A.3, 1972).

First, the initial classification process whose result the petitioners attack must be fully described. Pursuant to 11 Del. Code § 6531, the Commissioner of Corrections is directed to establish, inter alia, various educational and rehabilitative services, in conformity with his clear responsibility to supervise the "treatment, rehabilitation, and restoration of offenders as useful, law-abiding citizens within the community." An institutional classification committee, which has access to complete information concerning individuals sentenced to 90 days or more, determines the custodial and rehabilitative program of each prisoner, and reviews that program for "reclassification `periodically in accordance with the department regulations,' or whenever the committee shall deem it advisable." 11 Del.Code § 6530. A significant portion of the information referred to in § 6530 is of a psychological nature, ascertained by professionals working in a pre-trial classification unit.⁸ The institutional classification committee is composed only of prison administrative officials.⁹ There is no review of the committee's initial classification decision,¹⁰ and the regulations do not specify the frequency of review of classification decisions.¹¹

The Constitution recognizes the difficulty faced by prison officials who must balance the imposition of restrictive measures necessary for prison security against the granting of freedom of movement and responsibility necessary for participation in meaningful rehabilitative programs. See Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. at 2977; Gray v. Creamer, 465 F.2d 179, 183 (C.A.3, 1972). Ordinarily, federal courts will not second guess these prison administrative decisions, but the due process clause may in some circumstances permit an inquiry into the procedure followed or result reached. It is to the requirements of due process that this Court now turns in evaluating the constitutionality of the initial classification of the petitioners in the instant case.

Due process protection cannot be arguably invoked unless there is a liberty or property interest of the individual which has been or will be deprived. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Palmigiano v. Baxter, 487 F.2d 1280, 1284 (C.A.1, 1973); Clutchette v. Procunier, 497 F.2d 809, 814-815 (C.A.9, 1974). The deprivation for punitive reasons of prisoner's preexisting privileges while incarcerated¹² has invoked the due process clause, see Wolff v. McDonnell, supra, as has their deprivation in some cases for non-punitive reasons. See Gomes v. Travisono, 490 F.2d 1209 (C.A.1, 1974); Newkirk v. Butler, 499 F.2d 1214 (C.A.2, 1974), cert. granted sub nom. Preiser v. Newkirk (1974) 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138; Stone v. Egeler, 377 F.Supp. 115 (W.D.Mich.1973); Jenkins v. Keve, C.A. 74-101 (D.Del. 7/11/74), at 6-7. Furthermore, by analogy some courts have held that a prisoner's interest in liberty which has not been conferred, but for which he may be statutorily eligible, invokes the due process clause in parole release proceedings. United States ex rel....