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cept that no such sum or value shall be required in any such action brought against the

United States, any agency thereof, or any officer or employee thereof in his official capacity.

Section 1361 provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agancy thereof to perform a duty owed to the plaintiff.

Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978) cert.
S.Ct.
L.Ed.2d

granted

U.S.

(1978) 47 U.S.L.W. 3221 (1978) held that the district court did not have jurisdiction to oversee the operation of federal jails and prisons under the Administrative Procedures Act since the act specifically exempts from judicial review "agency action [which is] committed to agency discretion by law." The court found it unnecessary in that case to decide whether the act would apply if the breach of a specific statutory mandate by federal prison officials were established.

Two other causes of action by prisoners which pose many of the same problems as civil rights actions are Federal Tort Claims Act actions 10 and diversity actions for personal injuries.11 In diversity actions the court's jurisdiction is based upon 28 U.S.C. § 1332, and the plaintiff must satisfy the jurisdictional amount requirement in addition to showing diversity.

10. 28 U.S.c. § 1346 (b).

See, e.g., Edwards v. United States,

519 F.2d 1137 (5th Cir. 1975), cert. denied, 425 U.S. 972, 96 S.Ct. 2170, 48 L. Ed. 2d 795; Jones v. United States, 534 F.2d 53 (5th Cir. 1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586; Crump v. United States, 534 F.2d 72 (5th Cir. 1976); Plummer v. United States, No. 76-114 (3d Cir. May 26, 1978).

F.2d

11. See Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976); U.S. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir. 1974), cert. denied, 421 U.S. 1012 (1975).

SECTION II:

GENERAL CONSIDERATIONS: CIVIL RIGHTS

AND HABEAS CORPUS COMPARED

་་

Prisoner civil rights actions and habeas corpus actions tend to be grouped together under the general title "Prisoner Petitions. This generates considerable confusion since their similarities are generally limited to the plaintiffs' status as prisoners, the fact that many of both such actions are filed without the assistance of counsel, 12 and the fact that both such actions involve claims that prisoners have been deprived of their federal constitutional rights. A civil rights action differs from a habeas corpus action in the following respects:

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In prisoner civil rights actions, the prisoner is generally asserting that his federal constitutional rights have been or are being violated in that his conditions of confinement violate the United States Constitution, or that the defendants violated his federal constitutional rights in his arrest and criminal trial proceedings. State prisoners are generally seeking a declaratory judgment under 28 U.S.Č. §§ 2201 and 2202; injunctive relief under Rule 65 of the Federal Rules of Civil Procedure; and compensatory and punitive damages. Federal prisoners are usually seeking mandamus relief.

In habeas corpus actions, on the other hand, the prisoner is asserting that the violation of his federal constitutional rights in his criminal trial proceedings requires his release from custody. The federal courts have jurisdiction of habeas corpus actions under 28 U.S.C. § 2241. Federal habeas corpus actions brought by state prisoners are subject to the requirements of 28 U.S.C. § 2254.

12. See, e.g., Cruz v. Estelle, 497 F.2d 496 (5th Cir. 1974) (complaint written on toilet paper).

If the plaintiff in a civil rights action is a state prisoner and is actually seeking release from custody, his action must be treated as habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). However, this does not apply to claims for money damages: Preiser at 411 U.S. 494, 93 S.Ct. at 1838, 36 L.Ed.2d at 453; and habeas corpus may be available to challenge conditions of confinement, Id. at 499, 93 S. Ct. at 1841, 36 L.Ed.2d at 456. Preiser is not applicable to federal prisoners. Geraghty v. U.S. Parole Commission, 579 F.2d 238 (3d Cir. 1978).

The significance of Preiser is that the habeas petitioner must exhaust state remedies prior to bringing his action in federal court, while there is no exhaustion requirement in civil rights actions.

When the prisoner seeks both release from custody and money damages, the civil rights action for damages can go forward in federal court while the prisoner is exhausting state remedies as to the habeas issues. Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 2974, 41 L. Ed. 2d 935, 950 (1974).14 However, in these circumstances the Court noted that normal principles of res judicata would apply. Id. at 554 n. 12, 94 S.Ct. at 2974 n. 12, 41 L.Ed.2d at 950 n. 12.

Grundstrom v. Darnell, 531 F.2d 272 (5th Cir. 1976) held that the district court had properly dismissed a civil rights action as untimely until state remedies had been exhausted as to the habeas relief,

although damages were also sought.15 In that case,

the damage claim and the habeas relief were both based upon the same occurrences in the state criminal trial proceedings. In Meadows v. Evans, 529 F.2d 385

13. See Section II, C infra.

14. A declaratory judgment as a predicate to a damages award would not be barred by Preiser, nor would an otherwise proper injunction. Wolff at 554, 94 S.Ct. at 2974, 41 L.Ed.2d

at 950.

15. However, if the statute of limitations might bar a later action, the court should stay rather than dismiss the civil rights action. Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976).

(5th Cir. 1976), cert. denied, where the plaintiff
sought damages for both his allegedly involuntarily
induced guilty pleas and unconstitutional conditions
of confinement, the court determined that the action
could proceed as to the claims based upon allegedly
unlawful conditions of confinement although the
claims related to the guilty pleas should be dismiss-
ed or held in abeyance.

The determination of whether an action is habeas corpus or civil rights can be difficult. Williams v. Ward, 556 F.2d 1143 (3d Cir. 1977) held that the district court had properly treated the action as civil rights rather than habeas corpus since the plaintiff was challenging the manner of parole decision-making rather than its outcome. Drollinger v. Milligan, 552 F.2d 1220 (7th Cir. 1977) held that an action challenging the terms of probation was habeas corpus rather than civil rights.

Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977) applied the doctrine of Preiser and concluded:

Under Preiser, clearly, an injunction restoring good time and mandating immediate parole review is a habeas matter and therefore the district court correctly determined that it should not hear this issue prior to exhaustion of state remedies.

554 F.2d at 652.

An action seeking conditional release for furloughs and work or educational release programs is habeas corpus rather than civil rights. Parson v. Keve, 413 F.Supp 111 (D. Del. 1976).

Robinson v. Richardson, 556 F.2d 332 (5th Cir. 1977) held that plaintiff's action was habeas corpus even though the relief sought was an injunction against the continued discriminatory use of peremptory jury challenges by the district attorney. This was based on the fact that a resolution of plaintiff's claims in his favor would result in a finding that his conviction was constitutionally invalid, and release from prison would necessarily follow from such a finding.

The district courts have a heavy responsibility to determine whether an action is habeas corpus or civil rights. Strader v. Troy, 571 F.2d 1263 (4th Cir. 1978) was a habeas corpus action in which the petitioner alleged that his North Carolina sentence was enhanced by uncounseled Virginia convictions. He sought both release from custody and removal of the convictions from consideration by the North Carolina parole board in its determination of his eligibility for parole. The district court denied the writ. The court of appeals noted that in his claim against the parole board petitioner did not assert that he was entitled to parole and that he should be released. He He argued only that the parole board should consider his eligibility for parole without regard to the Virginia convictions:

He also does not assert that if
the four convictions are not con-
sidered he will be entitled to
parole, now or ever. Thus, on
the authority of Preiser v.
Rodriguez, 411 U.S. 475, 93
S.Ct. 1827, 36 L. Ed. 2d 439
(1973), we think this aspect of
Strader's claim for relief
must be treated as a suit
under 42 U.S.C. Section 1983
and not as a petition for a
writ of habeas corpus.

571 F.2d at 1269. In that case the court of appeals determined that plaintiff's claim should be treated as civil rights rather than habeas corpus although in the district court the plaintiff had made no effort to proceed under section 1983.

B. Function of Court

Habeas corpus actions usually involve reviewing a state or federal trial record, while a prisoner civil rights action is usually a new action, not involving the review of a prior case (unless the plaintiff is seeking damages for the alleged violation of his civil rights during his criminal trial proceedings).

The pretrial proceedings are generally much more extensive in civil rights actions than habeas corpus. They may include motions for default judgment filed by

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