Thompson v. Burke
| Decision Date | 01 June 1977 |
| Docket Number | No. 75-1365,75-1365 |
| Citation | 556 F.2d 231 |
| Parties | Leroy THOMPSON, Appellant, v. Parole Supervisor BURKE, Pennsylvania Parole Board Member Jefferson, and Parole Agent Strickler, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Jane D. Elliott, Duane, Morris & Heckscher, Philadelphia, Pa., for appellant.
Lawrence Barth, Asst. Atty. Gen., Philadelphia, Pa., Michael von Moschzisker, Deputy Atty. Gen., Eastern Regional Director, Robert P. Kane, Atty. Gen., Philadelphia, Pa., for appellees.
Before VAN DUSEN, BIGGS and ROSENN, Circuit Judges.
The appellant, Thompson, a state parolee, brings this appeal from an adverse directed verdict in a civil action for damages brought pursuant to42 U.S.C. § 1983. Thompson alleges that the procedure of the Pennsylvania Board of Parole and Pardon (Board) and of Member Jefferson violated the Fourteenth Amendment guarantee of procedural due process as set out and defined by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (decided June 29, 1972). Thompson seeks damages from Board member Jefferson, Parole Supervisor Burke, and Parole Agent Strickler. We affirm the directed verdict in favor of Burke and Strickler for no evidence was presented showing them to be culpable of any violation of the statute. The Board, of course, cannot be sued for it is not a "person" within the meaning of Section 1983. Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969). Facts are stipulated as follows:
It is necessary to state further facts. A jury trial was held. Thompson testified that after his arrest on June 22, 1972, he had a meeting with Jefferson, the Parole Board member, on September 19, 1972, at the Philadelphia Detention Center. Thompson testified that Jefferson came to the Detention Center with a public defender. Thompson related that he discussed with Jefferson the parole detainer and what had happened to him. 2 On cross-examination Thompson testified that he received no prior notice of the meeting with Jefferson. 3
As appears from the stipulation there was a meeting of the Board on September 27, 1972, and Thompson was ordered returned to Graterford Prison on a "technical" parole violation. The record shows that on October 20, 1972, there was a meeting of the Parole Board in Executive Session and the Board voted to recommend recommitment of Thompson as a "technical" parole violator. There is nothing in the record that shows that Thompson had a hearing before the Board, 4 as opposed to the meeting with Jefferson.
The defendants did not appear at trial. The only witness they called was David J. Baker, Parole Supervisor I, with the Philadelphia District Office. Mr. Baker's testimony is noteworthy in that it explained the position of the defendants. Mr. Baker was asked whether the hearings allegedly given to Thompson were in accordance with Morrissey. He answered, "No." (N.T. 123). The following exchange then took place:
"Q. Were the so-called Morrissey hearings (sic) First off let me establish do you know what a Morrissey hearing is?
A. Yes.
Q. Were these so-called Morrissey hearings in effect within the State of Pennsylvania at the time?
A. No.
"Q. When did they go into effect in the State of Pennsylvania?
A. They went into effect, effective date, Morrissey v. Brewer, was June 8, 1972.
Q. Would that mean people arrested after that date would be afforded so-called Morrissey hearings?
A. Right.
Q. Whereas people arrested before that date would have some other type of hearing.
A. Correct.
Q. Which category did Mr. Thompson go into?
A. People arrested prior to the Morrissey decision."
N.T. 124. 5
II. THOMPSON'S CLAIM
Thompson asserts that he is entitled to damages because upon his arrest for his second crime of burglary and related offenses he could not get bail by reason of the fact that the Parole Board had revoked his parole on technical grounds and incarcerated him.
III. ISSUES AND DISCUSSION OF LAW
A number of difficult issues are present and are discussed hereinafter.
The learned district judge did not write an opinion but there was extended colloquy. See N.T. 172, et seq. The substance of the court's decision, as we distill it from the colloquy, was that the doctrine of Morrissey, supra, was not applicable but even if it were applicable the Parole Board and its members had substantially followed its precepts. He discharged the jury in effect informing its members that the case presented only issues of law to be decided by the court. He granted a directed verdict to all the individual defendants pursuant to Rule 50(a), F.R.C.P., 28 U.S.C.
In these conclusions the District Court was in error. It is obvious from the record that Morrissey has not been complied with. Mr. Chief Justice Burger stated in Morrissey : "The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Morrissey, supra, 408 U.S. at 488, 92 S.Ct. at 2603. The Supreme Court prescribed among other required provisions "(d)", "(e)", and "(f)", as follows: "(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." Id. at 489, 92 S.Ct. at 2604. Items "(d)" and "(f)" were not complied with by the Parole Board, and indeed, as we have stated, there is nothing in the record to show that Thompson ever had a hearing before the Board. 6, 7 Title 42 U.S.C. § 1983, upon which Thompson relies, provides that "(e)very person" who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages. After Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (3/2/76), it seems almost unnecessary to state that very numerous exceptions have been carved out of the apparently absolute terms of § 1983. Cf. Helstoski v. Goldstein, 552 F.2d 564 (3d Cir., filed Mar. 28, 1977) (Per Curiam). The issue of immunity of members of the Parole Board was raised for the first time by appellees at the argument. Both sides have responded with briefs at our request. 8
There are, of course, a number of reasons for bestowing immunity upon officers of the executive branch of a state, ...
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