Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L. Ed. 2d 236 (1976) resolved a conflict among the circuits as to the timing of preliminary and final revocation proceedings. In Moody the federal parolee had pled guilty to federal charges of manslaughter and second degree murder and had received concurrent ten year sentences. The United States Board of Parole issued but did not execute a parole violator warrant which was lodged with prison officials as a "detainer. The board declined the parolee's request to execute the detainer immediately and advised him it would not execute the warrant until he was released from his intervening sentence. The Court upheld the right of the board to delay the hearing until the parolee was taken into custody as a parole violator. The Court stated: "With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect." 429 U.S. at 87, 97 S.Ct. at 278, 50 L.Ed.2d at 244. Moody was held applicable to a federal parolee convicted of a state crime while on parole in U.S. ex rel. Caruso v. U. S. Board of Parole, 570 F.2d 1150 (3d Cir. 1978). The court stated: "Whether a different case would be presented if there were a substantial claim of mitigating evidence, we need not decide here." 570 F.2d at 1154. The court suggested that circumstances might require the Parole Commission to hold an immediate hearing to enable the parolee to preserve evidence. 204 570 F.2d at 1154 n. 9. In a footnote205 the Moody Court commented that there was no need for the preliminary hearing required 204. See also United States ex rel. Hahn v. Revis, 560 F.2d 264 (7th Cir. 1977); Hicks v. United States Board of Paroles and Pardons, 550 F.2d 401 (8th Cir. 1977); Larson v. McKenzie, 554 F.2d 131 (4th Cir. 1977). 205. 429 U.S. at 86 n. 7, 97 S.Ct. at 278 n. 7, 50 L.Ed.2d at 236, n. 7. by Morrissey206 when the petitioner had already been convicted of and incarcerated on the subsequent offense. The Court did not discuss the status of the parolee during the period between his arrest and conviction on the intervening charge. Apparently in Moody the parolee was incarcerated on the intervening charge and the parole violator warrant was lodged as a detainer. A different situation would be presented if the parolee was released on bond on the intervening charge and then was arrested on the parole violator's warrant. The parolee would not yet have been convicted and the arrest would appear to constitute the custody required to trigger due process proceedings and the parolee would then appear to have a right to a preliminary, probable cause hearing. is uncertain whether a preliminary hearing on the state charge would obviate the need for a preliminary parole violation hearing. Still another question arises when the parolee is incarcerated on the intervening charge but would be able to secure his release but for the parole violator warrant. Is he in custody on the parole violator warrant? It Shelton v. Taylor, 550 F.2d 98 (2d Cir. 1977), cert. denied, 432 U.S. 909, 97 S. Ct. 2958, 53 L.Ed.2d 1083 held there was no error in delaying the federal revocation hearing until the parolee was released on parole on the intervening state sentence although the presence of the federal detainer may have delayed his parole on the state charge and prevented his participation in an education release program. In Reddin v. Israel, 561 F2d 715 (7th Cir. 1977), the parole board refused to withdraw a detainer placed against the plaintiff and refused to grant him a prompt 206. McNeal v. United States, 553 F.2d 66, 68 (10th Cir. 1977) observed that a Morrissey revocation hearing is not required until after the execution of the violator warrant when the parolee is taken into federal custody. No due process rights attach while a parolee is imprisoned on the intervening state conviction. However, once a federal parolee is returned to federal custody, a Morrissey type revocation hearing is required within a reasonable time. parole revocation hearing. 207 Thereupon the plaintiff brought an action against the warden asserting that the detainer had adverse effects on the condition of his confinement in violation of the Fourteenth Amendment. The court of appeals reversed the district court's grant of summary judgment for plaintiff and remanded for resolution of genuine issues of material facts. The court stated: The facts in dispute are material to the issue in this case, as the relevant inquiry for the district court is whether the prison officials have deprived Reddin of a protected liberty interest without due process. The warden should have been permitted to offer proof showing that the filing of the detainer deprived Reddin of no greater liberty interest than he would have experienced in any event because of other circumstances attending the character of his particular status as a prisoner. 561 F.2d at 718. However, the court commented on some of plaintiff's claims: Reddin's ineligibility for the 207. See also United States ex rel. Sims v. Sielaff, 563 F.2d 821 (7th Cir. 1977) (claim that delay preceding final parole revocation hearing violated due process is to be judged by the standards of Barker v. Wingo, 407 U.S. 514, 523 (1972)); Moss v. Patterson, 555 F.2d 137, 139 (6th Cir. 1977) (parolee convicted of a subsequent crime is entitled to a revocation hearing within a reasonable time on his request). Reddin [contends] that he suffers a "detrimental psychological effect" because of the detainer [T]he state need not avoid conduct which may result in "detrimental psychological effects" unless the state acts in a torturous or barbarous manner or with a wanton intent to inflict pain. 561 F.2d at 718. See Section XI, infra for a discussion of the personal liability of probation and parole officers under section 1983. The board of parole is not a "person" for purposes of section 1983. See Section VIII, B The district court in Durso v. Rowe, 579, F.2d 1365 (7th Cir. 1978) had improperly dismissed plaintiff's complaint alleging that his work-release status was revoked without a due process hearing such as was given to other prisoners. Plaintiff alleged that prison authorities customarily did not interfere with a prisoner's work-release status unless the prisoner violated some rule of the program or of his work-release contract. The court stated: "If the allegation is established, the plaintiff has been denied his right to due process of law." 579 F.2d at 1371. The court found strong similarities between work release and parole. 579 F.2d at 1371. 8. Loss or Confiscation of Prisoner's Property The holding in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L. Ed. 2d 424 (1972), that actions may be brought under section 1983 for deprivation of property without due process of law has resulted in frequent claims by prisoners that institution officials have withheld or confiscated their personal property. In his article, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, Circuit Judge Ruggero J. Aldisert stated: "Lynch, unfortunately, has made the federal court a nickel and dime court. A litigant now has a passport to federal court if he has a 5-dollar property claim and can find some state action."208 3 Arizona State Univ. L. J. 557, 569 (1973). The court vacated the district court's order dismissing the complaint prior to service for failure to state a cause of action in Lewis v. State of New York, 547 F.2d 4 (2d Cir. 1976). The plaintiff alleged that seventy dollars had been taken from his commissary account to satisfy a ninety-six dollar debt incurred while he was incarcerated at a different prison. There was no indication that the plaintiff was given an opportunity to contest the debt and confiscation of his funds. In a footnote the court stated: "We would note in passing, however, that confiscation of a prisoner's property without due process is generally a cognizable claim under 42 U.S.C. § 1983. 547 F.2d 6 n. 5. Alexanian v. New York State Urban Development Corp., 554 F.2d 15 (2d Cir. 1977) held that an allegation that the warden had confiscated plaintiff's money and personal possessions and had refused to return them when he was released stated a claim against the warden. In Russell v. Bodner, 489 F.2d 280 (3d Cir. 1973), the district court had improperly dismissed as frivolous a complaint alleging that the defendant prison guard entered plaintiff's cell and took seven packages of cigarettes. The defendant had first entered the plaintiff's cell and had taken some food. When the plaintiff objected, the defendant told him that he was an officer of justice and "his authority lay in the social positions. When plaintiff threatened to institute action against the defendant if he ever entered the cell again without authority, the defendant responded that the plaintiff had no remedy to prevent him from taking whatever he wanted out of the cell. The defendant said, "I'll prove it to you, "' and took seven packages of plaintiff's cigarettes. 489 F.2d at 281. The plaintiff's requests to the warden for relief were not answered. One of the plaintiffs in Wooten v. Shook, 527 F.2d 976 (4th Cir. 1975), alleged that when he was recaptured after an escape his billford containing 208. But see Nickens v. White, 536 F.2d 802 (8th Cir. 1976), discussed infra. |