Leahy v. Estelle, Civ. A. No. CA-3-7571-D.
Decision Date | 01 February 1974 |
Docket Number | Civ. A. No. CA-3-7571-D. |
Citation | 371 F. Supp. 951 |
Parties | Francis X. LEAHY, Plaintiff, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants. |
Court | U.S. District Court — Northern District of Texas |
William R. Neil, Dallas, Tex., for plaintiff.
Max Flusche, Austin, Tex., for defendants.
The Motion to Dismiss filed by the Defendants came on for hearing before the court, Honorable Robert M. Hill, United States District Judge. The court has considered the motion and is of the opinion that the motion should be sustained and this case dismissed.
The plaintiff, Francis Xavier Leahy, at the time this suit was originally filed, was a prisoner of the State of Texas in the custody of Clarence Jones, Sheriff of Dallas County, pursuant to a conviction for felony robbery. On September 20, 1973, while the plaintiff's conviction was being appealed, he was transferred to the Texas Department of Corrections under the provisions of Vernon's Tex. Code Crim.Proc.Ann. art. 42.09 (Supp. 1974), which reads in part as follows:
Plaintiff brings this suit under the Civil Rights Act and the essence of his allegations is that article 42.09 is unconstitutional because when a prisoner is transferred to the Texas Department of Corrections while his case is being appealed he is forced to perform the labor tasks of regular inmates and is thereby deprived of the time to work on his appeal and deprived of full access to legal materials, books and counsel at all times. Plaintiff seeks a declaration that article 42.09 is unconstitutional and an injunction returning him to the custody of the county jail until his appeal has been prosecuted. In the alternative, plaintiff requests that this court direct the Texas Department of Corrections to allow prisoners who have cases on appeal full and comprehensive access to legal material and to their attorneys at all times, and that these same prisoners not be given any work tasks to perform while their cases are on appeal. Based on an examination of plaintiff's petition, this court is of the opinion that this suit falls within the traditional scope of habeas corpus relief and the requirement of exhaustion of state remedies. Since plaintiff has failed to exhaust state remedies his suit must be dismissed.
Plaintiff's complaint does not request any damages but merely attacks his custody by the Texas Department of Corrections. Plaintiff's challenge to the fact of his confinement with the Texas Department of Corrections is as "close to the core of habeas corpus as an attack" on his conviction for it goes directly to the constitutionality of his physical confinement by the Texas Department of Corrections prior to a final conviction. Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The fact that plaintiff does not contest his confinement by Dallas county authorities, but only "the fact" of his confinement by the Texas Department of Corrections which is administered by the State of Texas, does not distinguish this case from Preiser. As suggested by the Court in Preiser, "when a prisoner is put under additional and unconstitutional restraints during his lawful custody . . . habeas corpus will lie to remove the restraints making the custody legal." See, In re: John Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894) ( ); Stearns v. Parker, 469 F.2d 1090 (9th Cir. 1972) (federal habeas corpus attacking transfer of prisoner, requires exhaustion of state remedies; Floyd v. Henderson, 456 F.2d 1117 (5th Cir. 1972) ( ); Mead v. Meir, 449 F.2d 732 (9th Cir. 1971), cert. denied, 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972) ( ); Smith v. Follette, 445 F.2d 955 (2d Cir. 1971) (Kaufman, J., concurring) ( ); Konigsberg v. Ciccone, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963, 90 S. Ct. 996, 25 L.Ed.2d 255 (1970) ( ); Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967) ( ); Creek v. Stone, 126 U. S.App.D.C. 329, 379 F.2d 106 (1967) ( ); Pigg v. Patterson, 370 F.2d 101 (10th Cir. 1966) ( ); Lipscomb v. Stevens, 349 F.2d 997 (6th Cir. 1965), cert. denied, 382 U. S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966) ( ); Eckman v. Byington, 290 F.2d 1 (9th Cir. 1961) ( ); Duncan v. Madigan, 278 F. 2d 695 (9th Cir. 1960), cert. denied, 366 U.S. 919, 81 S.Ct. 1096, 6 L.Ed.2d 242 (1961) ( ); Miller v. Overholser, 92 U.S.App. D.C. 110, 206 F.2d 415 (1952) ( ); United States ex rel. Gapinski v. Ragen, 152 F.2d 268 (7th Cir. 1945) ( ); Park v. Thompson, 356 F. Supp. 783 (D.Hawaii 1973) ( ); Capitan v. Culp, 356 F.Supp. 302 (D.Ore.1972) ( ); Walters v. Henderson, 352 F. Supp. 556 (N.D.Ga.1972) ( ); United States ex rel. Murray v. Owens, 341 F.Supp. 722 (S.D.N.Y.1972), rev'sd on other grounds, 465 F.2d 289 (2d Cir. 1972) ( ); Clonce v. United States, 317 F.Supp. 650 (N.D.Okla.1970) aff'd, 432 F.2d 442 (10th Cir. 1970) ( ); Peek v. Ciccone, 288 F.Supp. 329 (W.D.Mo.1968) (...
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