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TROTTER v. KLINCAR

May 26, 1983

CLARENCE C. TROTTER, ET AL., PLAINTIFFS,
v.
PAUL J. KLINCAR, INDIVIDUALLY AND AS ACTING CHAIRMAN OF THE PRISONER REVIEW BOARD; WILLIAM V. KAUFFMAN, INDIVIDUALLY AND AS EXECUTIVE SECRETARY OF THE PRISONER REVIEW BOARD; KATHRYN EWERS, INDIVIDUALLY AND AS INSTITUTE OFFICER OF THE PRISONER REVIEW BOARD; SHARON EVERETT, INDIVIDUALLY AND AS HEARING OFFICER OF THE PRISONER REVIEW BOARD; THE PRISONER REVIEW BOARD OF THE STATE OF ILLINOIS; ANTHONY SCILLIA, INDIVIDUALLY AND AS DEPUTY DIRECTOR OF COMMUNITY SERVICES OF THE DEPARTMENT OF CORRECTIONS; HAROLD THOMAS, INDIVIDUALLY AND AS SUPERINTENDENT OF COMMUNITY SUPERVISION AREA 1 OF THE DEPARTMENT OF CORRECTIONS; ROBERT GUTHRIE, INDIVIDUALLY AND AS HEARING OFFICER OF THE DEPARTMENT OF CORRECTIONS; AND THE DEPARTMENT OF CORRECTIONS OF THE STATE OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

  MEMORANDUM OPINION AND ORDER

Plaintiff Clarence C. Trotter ("Trotter"), individually and on behalf of others similarly situated, sued the Prisoner Review Board of Illinois, four officials of the Prisoner Review Board, the Illinois Department of Corrections and three Department of Corrections officials, seeking injunctive, declaratory and damages relief for deprivation of civil rights.*fn1 Trotter claims that he was denied a preliminary parole revocation hearing as required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Presently pending before the Court is Trotter's motion for partial summary judgment as to his individual claims, and defendants' motion to dismiss or, in the alternative, for summary judgment. For reasons set forth below, Trotter's motion is denied; defendants' motion for summary judgment is granted.

Trotter's complaint states that he was on parole under authority of the Illinois Prisoner Review Board beginning in April, 1981. On May 27, 1982, Trotter was arrested for allegedly committing burglary and theft; his bail was set at $12,000 on May 28, 1982. A parole violation warrant was issued against Trotter on June 7, 1982, as well as a "parole hold," which prevented him from posting bond and obtaining release. Trotter's preliminary parole hearing was not held until September 15, 1982, at Cook County Jail. Trotter has raised constitutional challenges to several aspects of his preliminary parole revocation hearing.*fn2 Subsequently, Trotter was convicted of burglary and sentenced to eight years to the Illinois Department of Corrections on January 27, 1983. He received a final parole revocation hearing on February 15, 1983.

Although both defendants and Trotter in their motions address the adequacy of Trotter's preliminary parole revocation hearing, this Court must first establish whether it has jurisdiction to entertain Trotter's individual and class claims for injunctive and declaratory relief. Therefore, we will discuss Trotter's individual claim for damages.

Injunctive and Declaratory Relief

To invoke federal jurisdiction, one must allege that an actual case or controversy exists in order to satisfy Article III of the Constitution. Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968); United States Parole Commission v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). Absent a showing of present adverse effects, past exposure to illegal conduct does not demonstrate a present case or controversy for purposes of injunctive relief. O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).

Thus, even if we assume that Trotter was denied his right to a preliminary parole revocation hearing, this does not establish a real and immediate threat that he would again be denied a preliminary parole revocation hearing in the future, entitling him to equitable relief. Los Angeles v. Lyons, ___ U.S. ___, ___, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983). In Lyons, the Supreme Court noted that in order to establish an actual controversy the respondent, who alleged that he was the victim of a police chokehold, would have had to allege that he would again encounter the police, and that either all police officers always choke citizens whom they encounter, or that the City ordered police officers to act in such a manner, id. at ___, 103 S.Ct. at 1667.

In the instant case, Trotter is presently incarcerated as a result of another crime committed while he was on parole. If he were to receive a preliminary probation revocation hearing at this point, he of course could not be released from custody even if a finding of no probable cause were made, for he is no longer on parole. In order to establish an actual controversy entitling him to injunctive relief, Trotter would have to allege that he would be released from prison under "mandatory supervised release,"*fn3 and thus subject to the jurisdiction of the Prisoner Review Board, which is likely but not absolutely certain. He would, moreover, have to violate the terms and conditions of his release before becoming entitled to a preliminary hearing pursuant to Morrissey v. Brewer. This prospect of Trotter violating the terms of his release is simply too speculative a basis upon which to grant him award of injunctive relief.

The absence of a case or controversy also precludes an award for declaratory relief. 28 U.S.C. § 2201 provides for the issuance of declaratory judgments "[i]n a case of actual controversy." This actual controversy requirement is a jurisdictional prerequisite of constitutional dimension. Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979), and the requirements of a justiciable case or controversy are no less strict in declaratory judgment actions than in any other type of action. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1387, 89 L.Ed. 1725 (1945); Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 439 F.2d 871, 873 (1st Cir. 1971).

Trotter also purports to represent a class of persons who are on parole and who have been, or will be, denied a preliminary parole revocation hearing. As we have already observed, Trotter is no longer on parole. Moreover, in the instant case, a class has not been certified. Because Trotter's individual claim for injunctive and declaratory relief fails to present a case or controversy for purposes of Article III, Trotter is no longer a suitable representative of the class he seeks to represent. This case does not resemble Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), where the district court had already certified a class prior to the point at which appellant satisfied the durational residency requirement which she had challenged. Here, because no class has been certified, no class members have yet acquired a legal status separate from the interest asserted by Trotter. Id. at 399, 95 S.Ct. at 557. And we do not agree with Trotter that this case is one that is "capable of repetition, yet evading review." First, Trotter is neither on parole nor being detained pending a preliminary parole revocation hearing. Second, Trotter's claim that he was denied several constitutional rights remains to be considered as part of his damages claim; this means that the claim does not "evade review." Los Angeles v. Lyons, ___ U.S. ___, ___, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983). Moreover, "the capable of repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality." Id. As we have noted, Trotter has not made such a demonstration.

Trotter cites United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), for the proposition that he retains a "personal stake" in this matter for purposes of class certification even if his individual substantive claims do not present a case or controversy. The respondent in Geraghty, a plaintiff who sought to represent a class, challenged parole release guidelines and attempted to appeal a ruling denying class certification although he had been released from prison during the pendency of the appeal. While the Supreme Court held that a class action does not become moot upon expiration of a named plaintiff's claim or despite denial of class certification, the Court expressly limited its holding to the appeal of the denial of the class certification. Id. at 404, 100 S.Ct. at 1213. And the Court added that a named plaintiff whose claim expires may not appeal a decision on the merits until a class has been certified. In the instant controversy, the issue of class certification has not been addressed by any of the parties. Since Trotter's personal claim for injunctive and declaratory relief fails to present a case or controversy for purposes of Article III, and since a class has not been certified, Trotter is an inappropriate class representative, Geraghty notwithstanding. We therefore grant defendants' motion for summary judgment both as to Trotter's individual claims and the class claims for injunctive and declaratory relief.

Damages Relief

Our decision that Trotter's individual and purported class claims for injunctive and declaratory relief fail to present a case or controversy does not, of course, preclude him from claiming individual damages for violations of his constitutional rights.

Initially, we observe that the Court of Appeals for the Seventh Circuit recently held that Illinois Prisoner Review Board officials are absolutely immune from suit under 42 U.S.C. § 1983 for their official activities in processing parole applications. United States v. Irving, 684 F.2d 494 (7th Cir. 1982). In so doing, the Court declared that Prisoner Review Board members perform an adjudicatory function comparable to judges, thus entitling the former to absolute immunity. Id. at 496. While Trotter would have this Court distinguish between adjudicatory and administrative actions of parole board officials as the Third Circuit has done, see Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977), we decline to do so.*fn4 The Seventh Circuit noted this distinction and expressly declined to adopt it, observing that "[i]t appears that all the tasks of Illinois Prisoner Review Board members relate to their adjudicatory function." United States v. Irving, 684 F.2d 494, 497 n. 4 (7th Cir. 1982). We also agree with defendants' contention that parole officials who decide parole applications are indistinguishable from parole officials who conduct preliminary and final parole revocation hearings. As a result, we hold that defendants Klincar, Kauffman, Ewers, Everett and the Illinois Prisoner Review Board are immune from Trotter's claim for damages relief pursuant to ยง 1983. Trotter's motion for partial summary judgment states that defendant Guthrie was present and controlled the ...


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