The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and JUDGMENT ORDER
This matter comes before me now on Defendants' motion to
dismiss the complaint for failure to state a claim upon which
relief can be granted. Fed.R.Civ.Pro. 12(b)(6).
On November 1, 1972, Plaintiff James Barksdale, represented
by Defendant Attorney Barry Frazin, was convicted of rape and
deviate sexual conduct in the Cook County Circuit Court before
Defendant Judge Daniel J. Ryan. Earlier in that year, on May
1, 1972, Defendant Ryan released Plaintiff's bail money to a
third party or organization that, Plaintiff contends, had no
right or authority to receive the funds.*fn1 Barksdale
thereafter perfected a timely appeal to the Illinois Appellate
Court where he raises constitutional objections to the manner
of his arrest, trial, and conviction and argues that Judge
Ryan's distribution of the bail money was arbitrary and
improper. That appeal has not yet been resolved.
Confined at the Illinois State Penitentiary, Stateville
Branch, Plaintiff brings this action to attack the legality of
his conviction.*fn2 See 28 U.S.C. § 1331, 1343, 2201, 2202;
42 U.S.C. § 1983, 1985(3). Stripped to its barest essentials,
then, this lawsuit seeks habeas corpus relief without complying
with the exhaustion-of-remedies doctrine of the federal habeas
corpus statutes. See 28 U.S.C. § 2241 et seq. See, generally,
Sokol, Federal Habeas Corpus § 22 (1969). Under the
principles of Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct.
1827, 36 L.Ed.2d 439 (1973), this procedure is impermissible
and these allegations must be dismissed.
In Preiser, the United States Supreme Court held that, where
a prisoner challenges the legal adequacy of his confinement, he
must bring his action under the relevant habeas corpus statute
and may not utilize the federal civil rights acts to bypass the
procedural requirements of habeas corpus law.*fn3 In short,
Plaintiff must exhaust his state judicial remedies before
receiving habeas consideration from this Court. As a matter of
federal-state comity, the Illinois state court system must be
allowed to review its own alleged constitutional errors before
this Court may properly exercise its jurisdiction. For an
excellent discussion of the comity issue, see Preiser, supra at
490-94, 93 S.Ct. 1827.
After dismissing Plaintiff's habeas-related claims, his bail
allegations remain for decision. Pursuant to Fed.R.Civ.Pro.
12, Defendant Ryan's motion to dismiss these charges is
treated as a motion for summary judgment and is granted.
Although the parties disagree on one or two factual grounds,
only one material question exists as to this claim: whether
Judge Ryan acted "within his judicial function" when he
ordered Plaintiff's bail money to be given to an
"unauthorized" person or organization. Skolnick v. Campbell,
454 F.2d 531, 533 (7th Cir. 1971); Jacobson v. Schaefer,
441 F.2d 127 (7th Cir. 1971). In all affidavits on file, it is
undisputed that Ryan's order of release was issued in his
official capacity as a Cook County Circuit Judge and that,
regardless of his intentions or motivations, his action was
not "clearly illegal" under Illinois law. Jacobson, supra at
129; Luttrell v. Douglas, 220 F. Supp. 278 (N.D.Ill. 1963). See,
generally, 38 Ill.Rev.Stat. § 1-1 et seq. Since he did not act
"in the clear absence of all jurisdiction over the
subject-matter," Judge Ryan cannot be liable for damages herein
by reason of his judicial immunity. Bradley v. Fisher, 13 Wall.
335, 80 U.S. 335, 351, 350-54, 20 L.Ed. 646 (1871); Piersen v.
Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
Bershad v. Wood, 290 F.2d 714 (9th Cir. 1961), is closely
analogous to this case. See Gregoire v. Biddle, 177 F.2d 579
(2d Cir. 1949), cert. den. 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed.
1363 (1950); Norton v. McShane, 332 F.2d 855 (5th Cir. 1964).
See also Note, 70 Harv.L.Rev. 829, 833-38 (1957).
Defendants' motion to dismiss is granted as to all issues
seeking habeas corpus relief. Summary judgment is entered in
favor of Defendant Ryan on the issue of the bail money