The opinion of the court was delivered by: Will, District Judge.
This is another in the never-ending flow of cases initiated by
state-incarcerated prisoners alleging an abridgment of their
federal civil rights by state prison officials and filed pursuant
to the Civil Rights Act, 42 U.S.C. § 1981-94.
In what has become an almost predictable response to complaints
of this nature, defendant Pate, Warden of the Illinois State
Penitentiary at Joliet, moves to dismiss the action on the theory
that the power to control or regulate the internal
administration, management and discipline of prisons operated by
the states is vested solely in the states and not subject to
intervention by the federal courts.
Dean Hancock, petitioner pro se herein, filed a complaint, in
the form of a letter to Chief Judge Campbell of this Court,
alleging in effect that certain acts of defendant Pate and his
agents constituted cruel and unusual punishment in violation of
the Eighth Amendment to the federal Constitution. Following
defendant's motion to dismiss, petitioner reiterated his claims
in a further communication with this Court wherein he also asked
for a declaratory judgment and for injunctive relief. From the
statements made in the above described documents, each drawn by
the petitioner without benefit of counsel and therefore to be
given a broad interpretation, the Court approaches the action as
having been brought under § 1983 of Title 42, U.S.C. which makes
liable any person who, under color of state law, causes another
person under the jurisdiction of the United States to be deprived
of any rights, privileges or immunities secured by the federal
Hancock states, and for the purpose of deciding a motion to
dismiss I am required to take all of plaintiff's allegations as
true, that the incident giving rise to this action was an
altercation between him and a fellow prisoner, Radis. Plaintiff
alleges further that, for at least one week prior to their fight,
Radis had been threatening various inmates at the Vocational
School of the penitentiary where both men were assigned. Certain
of defendant's agents, he asserts, were aware of these threats
and warned Radis about them. These admonitions were disregarded
by Radis, who attacked petitioner at the latter's work station.
Petitioner defended himself with a scrap steel rod about two feet
in length, the same size as the weapon, a piece of iron pipe,
Radis used in the assault.
Hancock was sentenced to a term of two to ten years on December
21, 1961. He was to have a hearing before the Pardon and Parole
Board prior to December, 1963, the conclusion of his minimum
term. The Class E status here operates to bar his appearance
before the above-mentioned Board until July, 1965. It is the crux
of Hancock's petition, then, that to be deprived of eligibility
for parole for a year and a half as a result of having defended
himself against unprovoked attack is imposition of cruel and
unusual punishment in violation of the Eighth Amendment to the
federal Constitution as applied to the states through the
Defendant's motion to dismiss relies on Siegel v. Ragen,
180 F.2d 785 (7th Cir.), cert. denied, 339 U.S. 990, 70 S. Ct. 1015,
94 L.Ed. 1391 (1950), the opinion most commonly cited as
authority for the proposition that federal courts have no power
to control or regulate the internal discipline of the penal
institutions of the various states. The broad principle
enunciated in Siegel offers an easy route for the disposition of
actions instituted by inmates of state prisons. In light of the
facts here presented — and the now discredited doctrines upon
which some of the reasoning in the Siegel decision rests — I am
loathe to accept defendant's representations that the case be
The discussion in Siegel sustaining the "internal discipline"
doctrine is based in great measure on the failure of the
petitioner in that case to exhaust his state remedies. The
Supreme Court decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961), disposed of the theory that a
plaintiff suing under the Civil Rights Act must first avail
himself of state remedies: "* * * The federal remedy is
supplementary to the state remedy, and the latter need not be
first sought and refused before the federal one is invoked." Id.,
365 U.S. at 183, 81 S.Ct. at 482, 5 L.Ed.2d 492.
The state remedies discussion in Siegel, which is in the nature
of dictum, incorporates the notion that a prisoner's
incarceration results in a complete loss of his civil rights
except protection of his life, liberty and property. The Seventh
Circuit has moderated its view in this regard as witnessed by its
decision in Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957).
See also this Court's opinion in Redding v. Pate, 220 F. Supp. 124,
128 (N.D.Ill. 1963).
A more limited recital of restrictions upon the rights of
inmates is found in the second case relied upon by the defendant,
United States ex rel. Wagner v. Ragen, 213 F.2d 294 (7th Cir.),
cert. denied, 358 U.S. 846, 75 S.Ct. 68, 99 L. Ed. 667 (1954).
Although also citing Siegel as authority for the "internal
discipline" doctrine, greater emphasis is placed upon cases which
relate solely to restraints upon prisoners during their
incarceration.*fn2 These would suffice as
authority to sustain defendant's motion to dismiss were the case
limited to the petitioner's challenge of the Warden's
discretionary authority to place inmates in solitary confinement,
to use the "Blue Shingle" emblem, to deny attendance at
recreational events and to limit purchases at the prison store. I
agree that "Lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights * * *",
Price v. Johnston, note 2 supra, 334 U.S. at 285, 68 S.Ct. at
1060, 92 L.Ed. 1356, and recognize the need for flexibility in
dealing with situations which confront prison administrators.
It is the added penalty of postponement of eligibility for
parole, when viewed in the light of the allegations made here,
that distinguishes this case from those where the "internal
discipline" doctrine applies. Defendant's decision to put upon
plaintiff the onus of the "Blue Shingle" goes further than mere
regulation of internal discipline as interpreted by the cases
cited in Wagner, supra. Warden Pate's decision is not limited to
curtailing plaintiff's rights in prison; it goes to the more
basic question of how long he is to be deprived of his liberty.
True, plaintiff has no unqualified right to be free. His right to
be heard with regard to parole, however, is as much a part of his
sentence as is the terminal date set by the judge. The Pardon and
Parole Board may deny the request for parole on the basis of
information which it feels pertinent to the question of the
prisoner's ability to maintain a lawful existence in
society.*fn3 That decision is within the province of the Board.
To me, defendant and his agents over-reach their authority —
limited as it is to the supervision of prisoners while in state
custody — when they bar or postpone the consideration of parole
in normal course, a decision which trespasses upon the power
granted to another agency of the state, the Pardon and Parole
There are, then, two separate constitutional questions raised
by plaintiff's complaint. First, does the warden have as a
sanction against prison rule violators the power to withhold or
defer eligibility for parole or is he, when using this power,
depriving the plaintiff of his liberty without due process of law
in violation of the Fourteenth Amendment? Secondly, if the use of
this power is found to be constitutional and this action limited
to the facts at bar, is the use of the sanction against a
prisoner who acted in self defense, to borrow language from Mr.
Justice Douglas, a punishment out of all proportion to the
offense so as to bring it within the ban against cruel and
unusual punishment?*fn4 I conclude that the facts ...