Park v. Thompson

Decision Date23 March 1973
Docket NumberCiv. No. 72-3605.
PartiesYvonne P. PARK, Plaintiff, v. Myron B. THOMPSON, Director, Department of Social Services and Housing, et al., Defendants.
CourtU.S. District Court — District of Hawaii

James Blanchfield, Brook Hart, Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, Hawaii, for plaintiff; American Civil Liberties Union, New York City, of counsel.

Olen E. Leonard, Jr., Deputy Atty. Gen., George Pai, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants.

SAMUEL P. KING, District Judge.

Plaintiff is an unmarried female, born in Hawaii on July 18, 1940, of Hawaii-an-Korean-Chinese ancestry. On November 8, 1971, during a trial in the First Circuit Court, State of Hawaii, with two codefendants for murder and attempted robbery, both in the first degree, committed on May 11, 1970, she pleaded guilty to the attempted robbery count. The murder charge was dismissed. On November 15, 1971, she was sentenced to imprisonment at hard labor for a maximum term of 20 years1 to be served consecutively to any other term then being served. On April 28, 1972, the state Board of Paroles and Pardons fixed her minimum term of imprisonment for this offense at 2½ years.2

At the time of her latest indictment, plaintiff was already in custody serving a minimum of 2 years from June 5, 1970, after revocation of parole following incarceration which had commenced on February 16, 1968, under a sentence for a prior felony.3 While technically committed to the custody of the state Director of Social Services for imprisonment at hard labor, plaintiff had been confined at the Honolulu Jail and not at the Hawaii State Prison because there were no facilities at the prison for women.4

Early in 1972, plaintiff was advised that arrangements were being made to move her to Terminal Island, a federal prison in California,5 pursuant to a general policy of transferring female prisoners with minimum sentences in excess of 2 years to out-of-state prisons with suitable rehabilitative programs for women inasmuch as there were no rehabilitative facilities for long-term female prison inmates in Hawaii.6

In May 1972, plaintiff petitioned the state circuit court for an injunction to forestall her removal from Hawaii. The circuit court entered summary judgment against her on July 7, 1972. She appealed. She was unsuccessful in attempting to secure an injunction from the state circuit court or a stay from the state supreme court pending appeal, but the circuit judge continued a temporary restraining order to July 14, 1972.

While her state appeal was in process, and on July 18, 1972, plaintiff presented her case to this court. Her complaint alleges violations and deprivations of her rights under the Constitution and laws of the United States and two pendent claims under state laws. Declaratory and injunctive relief was sought pursuant to 28 U.S.C. § 1343(3) and (4), 28 U.S.C. §§ 2201 and 2202, 42 U. S.C. § 1983, and F.R.Civ.P. Rule 57. An order to show cause issued returnable August 4, 1972.7

Although defendants had been served through their attorneys with the pleadings in this matter before 9:00 A.M. on July 19, 1972, no temporary restraining order had been issued. On July 20, 1972, plaintiff was transferred to Terminal Island, California. On February 24, 1973, she was further transferred to the Federal Reformatory for Women at Alderson, West Virginia.

Defendants moved for dismissal or abstention because of the pending state proceedings. On the state of the record at the time, this court entered an order on October 3, 1972, denying the motion to dismiss but granting the motion to abstain until plaintiff had completed her litigation in the state courts. On January 22, 1973, the Supreme Court of Hawaii affirmed the circuit court's grant of summary judgment against plaintiff.8

On February 1, 1973, defendants renewed their motion to dismiss this complaint on the grounds that the matter is res judicata. Plaintiff countered with a motion to amend complaint and to treat the action as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. These motions frame the issues now before the court.

Defendants' authorities support the proposition that, considered as a § 1983 action, plaintiff's claim is res judicata as a result of the state proceedings. See Howe v. Brouse, 422 F.2d 347 (8th Cir. 1970); Morey v. Independent School District No. 492, 312 F.Supp. 1257 (D. Minn.1969), affirmed, 429 F.2d 428 (8th Cir. 1970); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966); Moffett v. Commerce Trust Co., 187 F.2d 242 (8th Cir. 1951) (semble). Plaintiff apparently agrees as she has not responded to this argument but instead seeks to avoid the issue by restyling her complaint so as to abandon the § 1983 claim. Not unexpectedly, defendants oppose this maneuver.

Prior to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 442 (decided February 28, 1973), there may have been some point in resisting plaintiff's motion to amend on the theory that an original petition for a writ of habeas corpus could not be brought in this district because:

"Whatever the rule is in other circuits, the Ninth Circuit is firmly committed to the concept that territorial jurisdiction of a District Court in habeas proceedings demands the situs of the res of habeas corpus, that is, the actual presence of both the custodian and his petitioning charge, to be within the territory of the district." Boag v. Craven, No. 72-1341 (9th Cir. February 1, 1973), slip opinion page 2.9

Braden specifically deals with the choice of forum where a prisoner attacks an interstate detainer on federal habeas corpus, and holds that the proper forum is in the demanding state. It is clear that the same considerations that underlie Braden apply here. Hawaii is the most convenient forum in which to litigate plaintiff's claims. The out-of-state custodian is acting only as the agent of the State of Hawaii. Plaintiff seeks relief from alleged violations and deprivations of her rights by local officials. Any corrective action ordered can be effected by local officials.

Mead v. Meier, 449 F.2d 732 (9th Cir. 1971), would appear to be squarely on point and to the contrary. Mead was a prisoner in the custody of Meier, the warden of a federal prison in the state of Washington, by virtue of a sentence imposed in the state of Alaska. The incarceration at the federal prison was pursuant to an agreement between the state of Alaska and the United States Department of Justice. Habeas corpus jurisdiction to question the Alaska conviction was denied to the Alaska district court and granted to the Washington Western District district court.10

The post-Braden authority of Mead is subject to qualification. In Mead, the only respondent was Meier, the warden of the federal prison in the state of Washington. Braden would allow Mead to present his habeas claims in the Alaska district court with Alaska authorities as respondents and without the necessity of joining Meier. The Alaska authorities would be considered to be Mead's custodians under the more expansive definition of the custody requirement of the habeas statute resulting from Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and approved in Braden. On the other hand, Mead could still raise the same issues in the Washington Western District district court with Meier as respondent.11 Justice Brennan was careful to note:

"Nothing in this opinion should be taken to preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner's claim by a federal district court in the district of confinement. But as we have made clear above, that forum will not in the ordinary case prove as convenient as the district court in the State which has lodged the detainer. Where the prisoner brings an action in the district of confinement attacking a detainer lodged by another State, the court can, of course, transfer the suit to a more convenient forum." Braden, page 499 of 410 U.S., page 1131 of 93 S.Ct. note 15.

Even pre-Braden, this court would have jurisdiction of plaintiff's habeas corpus petition. Such jurisdiction has been held to continue where the petitioner's absence was occasioned by a post-filing involuntary removal. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944); Smith v. Campbell, 450 F.2d 829 (9th Cir. 1971); Bishop v. Medical Superintendent of Ionia State Hospital, 377 F.2d 467 (6th Cir. 1967); Harris v. Ciccone, 417 F.2d 479 (8th Cir. 1969), cert. denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970). While it is true that the cited cases all involved actions that had commenced as habeas corpus proceedings, here the omission from the original complaint of 28 U.S.C. § 2241 as an additional jurisdictional ground and of a prayer for a writ of habeas corpus as an additional remedy should not be treated as a matter of any great significance. The alleged facts are the same, the claimed rights are the same, the demanded corrective action is the same, the areas of discovery are the same. Defendants are in no way prejudiced by the assertion of another avenue for relief.

The reverse situation was ruled on in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), where the Supreme Court read habeas corpus petitions as also requesting relief under § 1983. See also Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972), and United States ex rel. Stuart v. Yeager, 293 F. Supp. 1079 (D.C.N.J.1968), to the same effect, and McClain v. Manson, 343 F. Supp. 382 (D.C.Conn.1972), in which the court found habeas aspects in Civil Rights Act cases for purposes of allowing attorney's fees. And cf. Jones, supra, in...

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21 cases
  • Hawkins v. Robinson
    • United States
    • U.S. District Court — District of Connecticut
    • 21 d3 Novembro d3 1973
    ...v. Maxwell, 351 F.2d 285, 286 (CA 6 1965)." "It is the legal issues that are to be exhausted, not the petitioner." Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973). Moreover, it is evident that the courts of the state of Connecticut are now effectively closed to petitioner's claims. As a......
  • Burkett v. Cunningham
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 31 d5 Julho d5 1987
    ...are to be exhausted, not the petitioner." U.S. ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) (quoting Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973)). To that end, "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy ........
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    ...this question, we must keep in mind that "[i]t is the legal issues that are to be exhausted, not the petitioner," Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973). We cannot, of course, announce a bright line rule. As we noted in Way, 421 F.2d at 146-47, and Jones v. Crouse, 360 F.2d 157......
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