Nelson v. Schmidt

Decision Date14 December 1973
Docket NumberNo. 71-C-70,71-C-369.,71-C-70
Citation373 F. Supp. 705
PartiesDonald M. NELSON, Plaintiff, v. Wilbur J. SCHMIDT et al., Defendants. Blaine L. ATKINSON, Plaintiff, v. Wilbur J. SCHMIDT et al., Defendants.
CourtU.S. District Court — Western District of Wisconsin

James H. Petersen, Asst. Atty. Gen. (under Atty. Gen., Robert Warren), Madison, Wis., for defendants.

Michael S. Weiden, Madison, Wis., for plaintiff Donald M. Nelson.

Anthony J. Theodore, Corrections Legal Services program, Madison, Wis., for plaintiff Blaine Atkinson.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

These are civil actions for injunctive relief. Plaintiffs have been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915. Jurisdiction is invoked in each case pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

In 71-C-70, plaintiff Nelson alleges that he is presently confined in the Wisconsin State Prison, Waupun; that on September 15, 1970, plaintiff was notified by defendants that "almost nine months" of his accumulated good time had been forfeited; that defendants stated this forfeiture was based upon the same act for which plaintiff had already been punished by a state court; that defendants ordered this forfeiture without providing plaintiff with prior notice, a hearing, or assistance of counsel.

In 71-C-369, plaintiff Atkinson alleges that on September 12, 1970 he was confined at the Oregon State Farm, Oregon; that prior to that date plaintiff had accumulated good time credits; that on that date plaintiff escaped from the state farm and was retaken into custody; that on September 24, 1970, plaintiff was convicted of escape and sentenced to three years' imprisonment; that plaintiff was thereupon confined in the Wisconsin State Reformatory, Green Bay; that subsequent to plaintiff's confinement at Green Bay, defendants caused him to be deprived of the good time which he had accumulated at the Oregon State Farm without providing him with prior notice, a hearing, or assistance of counsel.

Plaintiffs Nelson and Atkinson contend that the imposition of administrative punishment upon them, subsequent and in addition to the criminal sentences imposed for the same acts, violated the constitutional prohibition against double jeopardy; and that the procedures that resulted in the forfeiture of their good time did not satisfy due process requirements. Defendants in each case moved to dismiss the complaint for failure to state a claim upon which relief could be granted. I dismissed the complaints with respect to the claims of double jeopardy and refused to dismiss them with respect to the claims of denial of procedural due process. Defendants in each case thereupon served and filed an answer.

JURISDICTION

Defendants have now filed a new motion to dismiss on the ground that the court lacks jurisdiction over the subject matter. The motion is timely under Rule 12(h)(3), Fed.R.Civ.P. The motion is based on the holding in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that prisoners' suits seeking restoration of good time are governed by the more specific habeas corpus statutes 28 U.S.C. §§ 2241, 2254, even though they come within the broad language of 42 U.S.C. § 1983. Therefore, prisoners' good time suits in federal courts must satisfy the exhaustion-of-state-remedies requirement of 28 U.S.C. § 2254(b).

The exhaustion requirement has long been viewed as an expression of deference in areas of primary state concern, not as a jurisdictional limitation. Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 839, 9 L.Ed.2d 837 (1963):

The rule of exhaustion "is not one defining power but one which relates to the appropriate exercise of power." Bowen v. Johnston, 306 U.S. 19, 27 59 S.Ct. 442, 446, 83 L.Ed. 455. Cf. Stack v. Boyle, 342 U.S. 1 72 S.Ct. 1, 96 L.Ed. 3; Frisbie v. Collins, 342 U.S. 519 72 S.Ct. 509, 96 L.Ed. 541; Douglas v. Green, 363 U.S. 192 80 S. Ct. 1048, 4 L.Ed.2d 1142.

A federal district court has jurisdiction of a complaint seeking recovery under the Constitution or laws of the United States, provided the federal claim is not frivolous and not fradulently contrived to obtain jurisdiction. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).1 Since the present complaints claim violation of 42 U.S.C. § 1983 and the due process clause of the Fourteenth Amendment, they satisfy jurisdiction under 28 U.S.C. § 1343(3) and also under 28 U.S.C. § 2241(a), 2241(c)(3).

RETROACTIVITY

Although defendants' motions are expressed in terms of lack of jurisdiction over the subject matter, their reliance upon Preiser is so clear that I see no unfairness to the plaintiffs in considering the motion as a non-jurisdictional motion. Accordingly, I will construe the defense motion in each case as containing a motion for leave to amend the answer to add the defense of failure to exhaust state remedies. I will also construe each motion as containing a motion for judgment on the amended pleadings. The motion to amend is granted and I turn to the question whether Preiser should apply retroatively so as to require dismissal of the present actions. I conclude that Preiser established a new rule of law and that evaluation of the appropriate criteria requires that Preiser not be applied retroactively in these cases.

A New Rule

Although Preiser does not overrule any prior Supreme Court decision, it is a sharp departure from the direction of recent decisions in prisoners' § 1983 actions. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), held that a state prisoner need not exhaust administrative remedies before seeking relief under § 1983 for confiscation of his legal materials by prison officials. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), held that prisoners' challenges to prison living conditions and disciplinary measures are cognizable under § 1983. It added (251, 92 S.Ct. 409): "State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, supra."

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 against state court judgments; the former against other governmental action. An action seeking restoration of good time credits would clearly have fallen into the "extraordinary prisoner suit" category.

Under the guidelines on non-retroactivity set out in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), a new rule of law is established "by deciding an issue of first impression whose resolution was not clearly foreshadowed." 404 U.S. at 106, 92 S.Ct. at 355. In light of Houghton, Wilwording, and Edwards, I conclude that Preiser represents a new rule of law.

Criteria for Retroactivity of a New Rule

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), set out criteria for determining whether new constitutional rulings on criminal process should be applied retroactively. The Linkletter/Stovall criteria call for evaluation of (1) the purpose of the new rule, (2) reliance on the old rule, and (3) the effect on the administration of justice which would flow from retroactive application of the new rule. Linkletter, 381 U.S. at 636, 85 S.Ct. 1731;2 Stovall, 388 U.S. at 297, 87 S.Ct. 1967. These criteria have been adopted in the civil area, in both constitutional and nonconstitutional cases. See Chevron Oil v. Huson, 404 U.S. 97, 106-108, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

Stovall made clear that retroactive application may be denied in cases pending but not decided at the time of the enunciation of the new rule. See also Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). It denied application of the rule announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), to identifications which took place prior to the date of the Wade/Gilbert decisions.3 Linkletter had concerned only retroactive application to judgments already final on the date the new rule was announced.4

The Criteria Applied to Preiser
Purpose

Decisions applying the Linkletter/Stovall criteria to new constitutional rulings on criminal process have first examined the purpose served by the new rule. Where the purpose at stake was the integrity of the truth-finding function, retroactivity was strongly indicated.5 Where the purpose was deterrence of illegal police conduct, prospectivity was strongly indicated.6 The stated purpose of the new rule announced in Preiser is to give a state court system the first opportunity to correct any error made by state officials in the "peculiarly local problems" of determining the propriety of physical confinement itself, or the duration of such confinement, in a state institution. Preiser, 411 U.S. at 498, 93 S.Ct. 1827. Neither the decisions dealing with the integrity of the truth-finding function nor those dealing with deterrence of police misconduct provide guidance in the present matter. The purpose of the new rule announced in Preiser does not strongly indicate retroactivity or prospectivity. Therefore, I must turn to the criteria of reliance and of the effect on the administration of justice.

Reliance

When plaintiffs commenced these actions in 1971, they could have relied on my then recent ruling in Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis. 1971), that a § 1983 action was appropriate to challenge any violation of federal rights by prison officials. I must also consider that plaintiffs were laymen proceeding without counsel. They probably would...

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