While most actions challenging parole release proceedings are brought in habeas corpus, prisoners may challenge these procedures under section 1983 if they are not seeking release on parole. Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978); Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974), vacated as moot, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975). However, the question of whether the action is habeas 87 corpus or civil rights is not always easy to answer. In Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977), the court stated:

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.
[Fulford v. Klein and Meadows v.
Evans] also bar a declaratory judgment
on these issues at this time, as well
as a declaratory judgment stating that
the decision of the parole board
violated due process both in matters
of procedure and in the matter of
consideration of invalid disciplinary
reports.

554 F.2d at 652.

Kelsey v. State of Minnesota, 565 F.2d 503 (8th Cir. 1977) held that plaintiff's claims attacking the validity of the parole guidelines and procedures applied by the state parole board were claims that would result in speedier release from the state penitentiary if the allegations proved true. Since plaintiff had not exhausted his state remedies the claims should have been dismissed. The court noted that the district court retained jurisdiction over the damage claims. However, in Williams v. Ward, 556 F.2d 1143 (2d Cir. 1977), cert. dismissed, 434 U.S. 944, 97 S.Ct. 128, 54 L. Ed. 2d 323 (1978), the court determined that the case could properly be treated as civil rights rather than habeas corpus

187. See Section II,A supra.

since it concerned the manner of parole decision making rather than its outcome.

At the present time the circuits are divided over the question of whether due process applies to parole release hearings. The Supreme Court declined to resolve the conflict in Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L. Ed. 2d 218 (1976), and remanded for consideration of mootness after finding that the petitioner had died. In a dissenting opinion Justice Stevens noted the conflict in the circuits and the importance of the question, and the fact that the issue was one which was capable of repetition yet repeatedly evading review:

The Court granted certiorari to decide whether any constitutionally mandated procedural safeguards apply to parole release hearings. At such a hearing a prisoner may be denied parole, or he may be released subject to specified conditions. The constitutional issue is whether either the outright denial, or the imposition of parole conditions, has the kind of impact on liberty that must be preceded by "due process. The question is extremely important, it has been fully briefed and argued and, in my opinion, should now be decided.

429 U.S. at 60, 97 S. Ct. at 343, 50 L. Ed. 2d at 220. In a footnote Justice Stevens stated:

Its manifest importance is demonstrated by (a) the vast number of parole release decisions that are made every year; (b) the importance of each such decision to the person affected by it; and (c) the extensive litigation, with varying results, which has developed in the federal

courts.

429 U.S. at 61 n. 1, 97 S.Ct. 343 n. 1, 50 L. Ed. 2d 220 n. 1. In an unpublished opinion the Sixth Circuit had held that the requirements of due process did not apply to parole release hearings.

Basically, the Fifth and Sixth Circuits have determined that due process does not apply, while the D. C. Circuit, the Second, the Fourth, and the Seventh Circuits have determined that it applies to the extent that it requires written reasons for the decision. The Third Circuit requires judicial review to determine whether the board has abused its discretion and the Eighth Circuit holds that due process applies and prisoners must receive reasonable notice of the time of hearing, a right to appear in person and a written explanation of the decision.

In Brown v. Lundgren, 528 F.2d 1050, 1053 (5th Cir. 1976), cert. denied, 429. U.S. 917, 97 S. Ct. 308, 50 L. Ed. 2d 283, a habeas corpus action, the court held that the standards required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972) for parole revocation hearings are not required for parole release proceedings. The court drew a distinction between the loss of a statutory privilege once obtained and the original denial of the same privilege. The court determined that denial of parole is not equivalent to revocation and does not require due process protection. 188 The petitioner was a federal prisoner and the court noted that some circuits have found that the Administrative Procedure Act requires the board to give the prisoner reasons for denial of parole. The court concluded that under the Administrative Procedure Act the merits of the parole denial decision are subject to judicial review only where the decision is alleged to be so arbitrary and capricious as to be beyond the board's discretion. On the other hand, the courts can more readily review the board's compliance with the Administrative Procedure Act189 and its own rules. The court found that a prisoner challenging either the decision of the parole board

188. In King v. Warden, United States Penitentiary, 551 F.2d 996, 1000 (5th Cir. 1977), the court followed Brown v. Lundgren and held that the district court's requirement that the examiner in a parole release hearing be objective hearing officers not previously acquainted with the prisoner was unwarranted.

189. Such as the requirement that written reasons be given, based on 5 U.S.C. § 555 (e).

or the process by which that decision was made must show that the action of the board was so unlawful as to make his custody in violation of the laws of the United States. The plaintiff had not made such a showing and the dismissal of his petition was affirmed.

The Court of Appeals for the Fifth Circuit had earlier held, in an en banc decision, that due process rights do not attach to parole release proceedings. 190 Scarpa v. U. S. Board of Parole, 477 F.2d 278 (5th Cir. 1973), vacated and remanded to consider mootness, 414 U.S. 809, 94 S. Ct. 79, 38 L.Ed.2d 44 (1973), dismissed as moot, 501 F.2d 992 (5th Cir. 1973). Four of the sixteen judges dissented from that opinion. In that case the plaintiff sought declaratory relief and challenged the internal practices and procedures of the board which he alleged denied him due process. The court stated: "Due process rights do not attach at such proceedings. In the absence of flagrant, unwarranted, or unauthorized action by the Board, it is not the function of the courts to review such proceedings.' 477 F.2d at 283. In his dissenting opinion Judge Tuttle argued that plaintiff had alleged that the board's actions were arbitrary, fraudulent, unlawful or without reason since he alleged that he had not been granted a hearing at which the relevant factors were considered but had been denied parole solely on the basis of his past criminal record. 477 F.2d at 284.

Craft v. Texas Board of Pardons and Paroles, 550 F.2d 1054 (5th Cir. 1977), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (1978) affirmed the district court's dismissal of the complaint, holding that the alleged refusal of the parole board to allow the plaintiff to see his papers on file did not state a cause of action; that the plaintiff failed to present facts in support of his general allegation that the board's guidelines were vague and arbitrary; and that a printed form which indicated several reasons for the denial was sufficient "to comply with whatever due process rights a prisoner may have to be informed as to why he was denied parole.

Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978)

190. In Cruz v. Skelton, 543 F.2d 86, 94 n. 7 (5th Cir. 1976), the court held that the granting or withholding of parole is not a criminal proceeding or part of a criminal prosecution. Therefore, there is no right to counsel at a parole release proceeding.

affirmed the district court's dismissal for failure to state a claim and stated:

[T]he mere statement in a complaint
that the Parole Board has taken
arbitrary and capricious action is
not sufficient to state a claim upon
which relief can be granted under
42 U.S.C. § 1983. The applicant
must set forth specific facts that
would, if proved, warrant the relief
he seeks.
This court has

already held that the refusal to
allow a Texas state prisoner a hearing
before the Parole Board, and the lack
of a written statement of the reasons
for the Board's decision, do not
amount to the deprivation of consti-
tutional rights. . The printed
form used by the Texas State Parole
Board to notify a prisoner of the
reasons for his parole denial has
been held to be sufficient to
comply with whatever due process
rights a prisoner may have to be
informed concerning why he was
denied parole.

In making its parole eligibility determinations, the Parole Board may properly consider the length and seriousness of an inmate's prior criminal record.

Parole Board standards in deciding parole applications are of concern only where arbitrary action results in the denial of a constitutionally protected liberty or property interest The expectancy of release upon parole is not such an interest.

556 F.2d at 1017-18.

Long v. Briscoe, 568 F.2d 1119, 1120 (5th Cir. 1978), relying on Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct.