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,
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
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
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.
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
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 § 1983.
Trotter's motion for partial summary judgment states that
defendant Guthrie was present and controlled the ...