Reddin v. Israel

• Decision Date: 02 September 1977
• Docket Number: 77-1318,Nos. 77-1317,s. 77-1317
• Citation: 561 F.2d 715
• Parties: Phillip REDDIN, Plaintiff-Appellee, v. Thomas R. ISRAEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 715

561 F.2d 715

Phillip REDDIN, Plaintiff-Appellee, v. Thomas R. ISRAEL, Defendant-Appellant.

Nos. 77-1317, 77-1318.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1977.

Decided Sept. 2, 1977.

Bronson C. LaFollette, Atty. Gen., James H. Petersen, Asst. Atty. Gen., Madison, Wis., for defendant-appellant.

Charles Bennett Vetzner, Madison, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge and GRANT, District Judge. ^*

CUMMINGS, Circuit Judge.

Phillip Reddin was paroled from the Kentucky State Penitentiary on July 8, 1972. In December of 1974 he was convicted of manslaughter in Wisconsin and sentenced to an indeterminate term not to exceed nine years at the Wisconsin State Prison in Waupun. On January 30, 1975, a parole violation warrant was filed by the Kentucky Parole Board at the Wisconsin prison. In a cover letter, the Kentucky Parole Board requested that the warrant be filed as a detainer and that the warden notify the Board thirty days prior to plaintiff's release. Subsequently, Reddin obtained the assistance of law students at the University of Wisconsin who were acting under the auspices of the Wisconsin Law School Legal Assistance Program. A request was made to the Kentucky Parole Board that the remainder of the Kentucky sentence run concurrently with the Wisconsin sentence. The Kentucky Board refused to withdraw the detainer placed against Reddin and denied the request for a concurrent sentence. A later request for a prompt parole revocation hearing was also denied.

Reddin then filed a 42 U.S.C. § 1983 civil rights complaint against the warden asserting that the presence of the detainer had adverse effects on the condition of his confinement in violation of the Fourteenth Amendment. He requested a preliminary and permanent injunction and a declaratory judgment. In its initial decision rendered on September 28, 1976, the district court granted plaintiff summary judgment, holding that Reddin had been denied due process because the defendant had given effect to the detainer without Kentucky's granting a prompt parole revocation hearing. 418 F.Supp. 1144. The district court relied primarily on Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973), ¹ which held that the added punitive restrictions which result when a custodial state recognizes the detainer lodged by a sister state results in a due process violation in the absence of a prompt parole revocation hearing. The district court ordered that the Kentucky Parole Board be notified of the decision. The court also enjoined the warden from continuing any special treatment of Reddin as a result of the detainer unless Kentucky granted a parole revocation hearing within sixty days. It has not done so.

Shortly after the district court entered its decision the Supreme Court decided Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236. Believing Moody to be dispositive, the defendant moved for relief from the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Moody held that a federal parolee, imprisoned for a federal crime committed during parole, is not constitutionally entitled to a prompt parole revocation hearing when a parole violation warrant is filed at the custodial prison as a detainer but not served on him. Both the crime giving rise to the parole and the crime committed while on parole occurred within the jurisdiction of the United States Court for the District of Arizona which dismissed Moody's habeas corpus petition. In a decision and order of March 7, 1977, Judge Reynolds determined that Moody was distinguishable, denied defendant's motion for relief and held that Moody required no modification of his earlier decision. The warden appeals from both the September 28, 1976 and March 7, 1977 orders.

Initially, this Court must consider whether summary judgment was an appropriate disposition. Summary judgment is authorized "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is * * * (and where) no genuine issue remains for trial * * *." Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458. Where there is a genuine issue as to a material fact, summary judgment is of course improper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 26 L.Ed.2d 142; Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971). Thus it is necessary to review the record to determine whether a material issue remains for trial.

The issue before the district court was whether the unexecuted Kentucky parole violation warrant lodged in the Wisconsin prison resulted in certain adverse effects so as to deny Reddin liberty interests protected under the Due Process Clause of the Fourteenth Amendment. The warden contends that there are a number of material factual issues which were left unresolved by the district court, thereby rendering summary judgment improper. The adverse effects suffered by plaintiff which he alleges resulted directly from the filing of the detainer were: (1) a maximum security classification making him ineligible for certain job assignments and for transfer to a less secure Wisconsin institution which maintains various rehabilitation programs unavailable at the Waupun institution; (2) being deemed a poor parole risk; (3) deprivation of an opportunity to serve his remaining Kentucky sentence concurrently with the Wisconsin sentence; and (4) a detrimental psychological effect. The district court acknowledged that some of these facts were in dispute, but decided that they were not material.

The primary adverse effect which Reddin claims results from the detainer in his file is that he was restricted to a maximum security classification instead of being eligible for the desired minimum security facility. At oral argument, counsel admitted that this assertion was in error. Although it is apparent that Reddin is eligible for transfer to medium security, he is not eligible for transfer to a minimum security facility. An affidavit submitted by Donald Clark, Classifications Chief of the Bureau of Institutions of Wisconsin, on January 9, 1976, admits that it is a general policy in Wisconsin to prohibit transfer of a prisoner to minimum security if that prisoner has a detainer from another jurisdiction in his file. However, other than preventing Reddin from being off the prison grounds without supervision, the Clark affidavit states that the only other difference between medium and minimum confinement is that the existence of the detainer currently acts to prohibit Reddin from participating in a new project known as mutual agreement programming whereby inmates may "contract" for an earlier parole date in exchange for explicit promises pertaining to good conduct and participation in institutional programs.

The affidavit also states that the mutual agreement programming is a relatively new project and that the benefits are currently being expanded and may eventually include those subject to felony detainers. An additional assertion in the Clark affidavit states that a prisoner such as Reddin, who, at the time of Clark's affidavit, had served one year (and now has served two and one half years) of a nine-year manslaughter charge, would not be eligible for minimum security status regardless of his institutional conduct. In reviewing the district court's grant of summary judgment, these assertions must be taken as true.

Accepting Clark's assertion that Reddin would not be subject to minimum security classification as a result of the severity of his crime and length of his sentence, ignoring or...