Todd v. Baskerville, s. 81-6517

• Decision Date: 06 July 1983
• Docket Number: 81-6730,Nos. 81-6517,s. 81-6517
• Parties: Wilbur Fletcher TODD, Appellant, v. Alton BASKERVILLE, Warden, Appellee. Aaron HOLSEY, # 121937, Appellant, v. Gary BASS, individually, and as Assistant Prosecutor with the State's Attorney's Office; James P. Farmer, individually, and as Assistant Public Defender for the City of Baltimore, Maryland; Alfred J. O'Ferrell, III, individually, and as the deputy Public Defender for the State of Maryland; Leonard S. Freedman, individually, and as an Attorney with a practice; J. Harold Grady, individually, and as the Chief Judge of the Supreme Bench of Baltimore, Maryland; Allen D. Greif, individually, and as appointed Defender; Thomas E. Kelly, individually, and as a Parole Agent with the Dept. of Parole and Probation for the State of Maryland; Edward Mintzer, individually, and as an Official Court Reporter with the Supreme Bench; James W. Murphy, individually, and as an Associated Justice, assigned to the Supreme Bench; Charles E. Orth, Jr., individually, and as the Former Chief Judge of the Md. Court of Special Appeals; Calvin R. Payne, individually, and as an Official Court Reporter with the Supreme Bench; Leonard D. Redmond, III, individually and as an Assistant Public Defender for the City of Baltimore, Maryland; Julius A. Romano, individually, and as the Former Chief of Md. Court of Special Appeals; Gerald A. Smith, individually, and as Appointed Public Defender; Norman N. Yankellow, individually, and as Chief Public Defender for the City of Baltimore, Maryland, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 70

712 F.2d 70

Wilbur Fletcher TODD, Appellant, v. Alton BASKERVILLE, Warden, Appellee.

Aaron HOLSEY, # 121937, Appellant, v. Gary BASS, individually, and as Assistant Prosecutor with

the State's Attorney's Office; James P. Farmer,

individually, and as Assistant Public Defender for the City

of Baltimore, Maryland; Alfred J. O'Ferrell, III,

individually, and as the deputy Public Defender for the

State of Maryland; Leonard S. Freedman, individually, and

as an Attorney with a practice; J. Harold Grady,

individually, and as the Chief Judge of the Supreme Bench of

Baltimore, Maryland; Allen D. Greif, individually, and as

appointed Defender; Thomas E. Kelly, individually, and as a

Parole Agent with the Dept. of Parole and Probation for the

State of Maryland; Edward Mintzer, individually, and as an

Official Court Reporter with the Supreme Bench; James W.

Murphy, individually, and as an Associated Justice, assigned

to the Supreme Bench; Charles E. Orth, Jr., individually,

and as the Former Chief Judge of the Md. Court of Special

Appeals; Calvin R. Payne, individually, and as an Official

Court Reporter with the Supreme Bench; Leonard D. Redmond,

III, individually and as an Assistant Public Defender for

the City of Baltimore, Maryland; Julius A. Romano,

individually, and as the Former Chief of Md. Court of

Special Appeals; Gerald A. Smith, individually, and as

Appointed Public Defender; Norman N. Yankellow,

individually, and as Chief Public Defender for the City of

Baltimore, Maryland, Appellees.

Nos. 81-6517, 81-6730.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 13, 1983.

Decided July 6, 1983.

James Phillip Chandler, Sr., Washington, D.C., for appellants.

Guy W. Horsley, Jr., Asst. Atty. Gen., Richmond, Va., Patricia McDonald, Asst. Atty. Gen., Baltimore, Md. (Gerald L. Baliles, Atty. Gen. of Virginia, Richmond, Va., Stephen H. Sachs, Atty. Gen. of Maryland, Maureen O'Ferrall Gardner, Asst. Atty. Gen., Baltimore, Md., on brief) for appellees.

Before RUSSELL and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

These appeals have been consolidated because both involve the "ambiguous borderland" ¹ between habeas corpus proceedings and § 1983 actions, though the dispositive issue in the two cases are different. As they come to us, the Todd appeal poses the question whether the action by a state prisoner in that case was to be considered in habeas and thus subject to state exhaustion or was to be treated as a § 1983 action in which state exhaustion was excused; the Holsey appeal, on the other hand, involves as the ultimate issue the propriety of a dismissal of a state prisoner's § 1983 action as frivolous under § 1915(d), 28 U.S.C. in the absence of a responsive pleading. The District Court in Todd found the action to be in habeas and dismissed it for failure to exhaust state remedies; in Holsey the Court dismissed the suit as frivolous under § 1915(d) without requiring any responsive pleading by the defendant. We affirm Holsey but, in Todd, the panel is in agreement to remand in order that the District Court may consider whether changed circumstances would now require a different result, though a majority of the panel would find that the action of the District Court on the facts as they existed at the time it acted was correct.

Todd

The real gravamen of this plaintiff's action is that, because of the failure "to properly apply good conduct time credit on his sentence," he has been and is as of the time of the filing of his action being "subjected to terms of confinement that go beyond satisfaction of sentence." He seeks release from confinement and damages at the rate of $1,000 per day for every day he is being unlawfully detained." Such an action, seeking primarily release from confinement, meets, as we view it, the test for a habeas proceeding, as enunciated in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

In Preiser, the Supreme Court clearly stated that, "Congress has determined that habeas corpus is the appropriate [and exclusive] remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." The Supreme Court added in explication of this ruling that the state prisoner "cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge, because Congress has passed a more specific act to cover that situation, and, in doing so, has provided that a state prisoner challenging his conviction must first seek relief in a state forum, if a state remedy is available. It is clear to us that the result must be the same in the case of a state prisoner's challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action. Such a challenge is just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration." 411 U.S. at 489, 93 S.Ct. at 1836 (Italics added) The Court explained further that "[i]f [on the other hand] a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release--the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damage action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies." 411 U.S. at 494, 93 S.Ct. at 1838 (Italics in text) It would seem clear that under the principles enunciated by the majority in Preiser, that any challenge to the length or duration of confinement, whether involving judicial or administrative action, is redressable only in habeas with its requirement of state exhaustion while, as Justice Brennan, in his dissent, phrased the holding of the majority, an action for damages by a state prisoner, "provided he attacks only the conditions of his confinement and not its fact or duration," may be maintained under § 1983, 411 U.S. at 505, 93 S.Ct. at 1844. (Italics added)

Some writers, however, have been confused by the language of footnote 14 in the majority opinion in Preiser (411 U.S. at 499, 93 S.Ct. at 1841):

"If a prisoner seeks to attack both the conditions of his confinement and the fact or length of that confinement, his latter claim, under our decision today, is cognizable only in federal habeas corpus, with its attendant requirement of exhaustion of state remedies. But, consistent with our prior decision, that holding in no way precludes him from simultaneously litigating in federal court, under § 1983, his claim relating to the conditions of his confinement."

We find no confusion in this language. In our opinion, its proper construction is that expressed by Justice Brennan, i.e., that the action for damages is maintainable "simultaneously" with the prisoner's habeas claim, "provided he attacks only the conditions of his confinement and not its fact or duration." Any other application of this language would mean, as Justice Brennan in his dissent hypothesizes, that, if any prisoner, in attacking the length or duration of his confinement, "could formulate at least a colorable damages claim, he would be entitled to litigate all issues in federal court without first exhausting state remedies," a result which Justice Brennan found the majority had rejected. 411 U.S. at 510, 93 S.Ct. at 1846.

A further explication of this language in Preiser was given in the subsequent case of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In that case a state prisoner filed a § 1983 class action challenging on due process grounds the disciplinary procedures resulting in good-time credits against his sentence. The plaintiff sought "three types of relief: (1) restoration of good time; (2) submission of a plan by the prison authorities for a hearing procedure [in connection with good-time rights] ... which complied with the requirements of due process; and (3) damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures." 418 U.S. at 553, 94 S.Ct. at 2973. The Supreme Court sustained the Court of Appeals holding that relief by way of "restoration of good-time credits, ... [was] foreclosed under Preiser " but it held that the district court "short of ordering the actual restoration of good time already canceled," could review such procedures under due process in a § 1983 action and could grant injunctive relief in that action so far as future proceedings involving good-time rights were concerned, including the granting of "declaratory judgment as...