Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-623 -- Marvin E. Aspen, Judge.
Before CUDAHY, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and TEMPLAR, Senior District Judge.*fn*
FAIRCHILD, Senior Circuit Judge. Inmate Clarence W. Walker commenced this § 1983 action against the Illinois Board of Prisoner Review (Board), claiming a denial of due process in the manner in which it denied him parole. Liberally construed, his pro se complaint alleged insufficiency of the reasons given for denial, refusal of an opportunity to review the entire record considered by the Board, and an erroneous conclusion by the Board that his sentences were consecutive rather than concurrent.
The Board moved for dismissal (or alternatively for summary judgment). The district court dismissed. The court was of the opinion that because the Board had followed certain procedures considered adequate in Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), denial to plaintiff of access to his file was not a denial of due process; and that the Board's statement of reasons was sufficient. The court did not address the claim concerning the sentences, concluding that this was a challenge to the duration of imprisonment, which could only be raised by petition for habeas corpus after exhaustion of state remedies. Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
Plaintiff appealed, and we appointed counsel on appeal.
I. Propriety of § 1983 Action
The Board has not argued that plaintiff's due process claims could only be asserted, after exhaustion of state remedies, in a petition for habeas corpus. His complaint did not assert a right to be released on parole and sought only an injunction requiring rehearing by the Board in accordance with due process. We note that in Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir. 1977), a petition challenging parole procedures was held cognizable under § 1983 because the relief sought might have improved petitioner's chances of parole, although the question of release still would remain within the discretion of the parole board. Cf. Fernandez v. Trias Monge, 586 F.2d 848, 852 n.4 (1st Cir. 1978); Wright v. Cuyler, 624 F.2d 455, 458 n.5 (3d Cir. 1980). Greenholtz, supra, was a § 1983 action. See also, Bradford v. Weinstein, 519 F.2d 728, 733-734 (4th Cir. 1974), vacated and remanded, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975) (moot); Haymes v. Regan, 525 F.2d 540, 542 (2d Cir. 1975).
We conclude that the due process claims are the proper subject of a § 1983 action seeking injunctive relief as to constitutionally required procedure.
II. The Board's Statement of Reasons
The district court assumed without deciding, that under Greenholtz, supra, Illinois law creates an expectancy of release on parole which is entitled to due process protection. This court has since decided that proposition affirmatively. United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (1982).
The complaint alleged that after plaintiff became eligible for parole, parole was denied January 4, 1977, January 24, 1978, and December 5, 1978. It was alleged that each denial was made because of the serious nature of the offense. Only the text of the December 5, 1978 statement of reasons was set forth, as follows:
The above action is taken based on the Board's feeling that parole at this time would deprecate the seriousness of the crime for which you were convicted and would promote disrespect for the law. This is [based] on the crimes of Rape, Armed Robbery and Attempted Murder [for] which you received sentences ranging from 100-150 and 19-20 years. Due to the 100 years [minimum], you do not qualify for a release date under the provisions of the new law.
Board counsel states that the last sentence related solely to the question whether the Board was required by statute to set a fixed release date and that it formed no part of the Board's reasons for denial of parole. Counsel for plaintiff agrees, and we accordingly give no further consideration to this sentence. Plaintiff argues that he was deprived of due process because the Board denied parole based on the same grounds earlier used to justify rejection of the two previous applications and because it failed to state the facts underlying its decision.
The first argument is clearly without merit. Both Ill. Rev. Stat. ch. 38, § 1003-5(c) and Rule V of the Rules Governing Parole require the Board to deny parole to a candidate if release at that time would deprecate the seriousness of his offense or cause disrespect for the law. Neither the statute nor the Rule places a limitation on the number of times these reasons may be invoked to justify rejection of an application, and Walker, quite simply, has produced no authority to show otherwise. We hold that so long as the Board assesses each application in good faith, with particular regard to the inmate's rehabilitation and prison behavior record,*fn1 there is no restriction on how often parole may be denied because release would deprecate the seriousness of the crime or cause disrespect for the law. We do not think that the Board's obligation to consider institutional behavior and any other ...