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December 4, 1984


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


Plaintiff Kareem Faheem-el brought this action under 42 U.S.C. § 1983 and 28 U.S.C. § 2254 on his own behalf and on behalf of all others similarly situated. He attacks the parole revocation procedures in Illinois. Specifically, he attacks the adequacy of the preliminary parole revocation hearings, the constitutionality of the state's refusal to grant bail or service credit to accused parole violators, and the timeliness of final parole revocation hearings. Before the court are plaintiff's motions for class certification and a preliminary injunction.

I. Background

Plaintiff was sentenced in 1973 to a term of 30-90 years imprisonment for murder. He was paroled from Stateville Correctional Center on October 5, 1983. On January 23, 1984, he was arrested for the alleged possession of cocaine and sent to Cook County Jail. He was served on February 7, 1984, with a notice charging violation of his parole and a preliminary revocation hearing was held on March 1, 1984. Plaintiff alleges that in his preliminary parole revocation hearing no prosecution witnesses were produced for cross examination. He claims that the preliminary hearing officer read silently from his file and allowed plaintiff to make a statement, but refused to allow plaintiff to offer testimony from an eyewitness to the events leading to his arrest. The hearing officer found against plaintiff. Plaintiff was incarcerated and, as a parolee accused of violating his parole, was not entitled to bail. See People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 11 Ill.Dec. 295, 368 N.E.2d 903 (1977). No final parole revocation hearing has been held and plaintiff has been notified that none will be held until disposition of the pending criminal case.

This action was brought in four counts. Count I seeks withdrawal of the parole violation charge or, in the alternative, an immediate final revocation hearing, an immediate bond hearing, and damages. Count II seeks compensatory and punitive damages. Count III seeks an immediate final parole revocation hearing, credit against plaintiff's parole term for each day spent incarcerated while waiting for the final parole revocation hearing, and both compensatory and punitive damages. Count IV, the class action count, seeks prompt final revocation hearings, procedurally proper preliminary parole revocation hearings, parole time credit for all incarcerated parolees awaiting a final parole revocation hearing, release of all parolees not offered bail hearings, and costs and attorneys' fees.

As this description makes apparent, this action is a multifaceted class attack upon Illinois parole revocation procedures. Unfortunately, the breadth of the action has not been matched by the depth of the briefs, and this court has, accordingly, in several instances and with some trepidation, analyzed the issues in a manner not discussed or only briefly discussed by the parties.

II. Preiser v. Rodriguez

Before the court delves into the issues presented by plaintiff, it must determine how to characterize this action. Plaintiff, in his complaint, labels it as "a 1983 action and a habeas corpus action." He claims his constitutional rights were violated by the state. He also seeks, at least in part, procedures that could hasten his release and, if those procedures are not forthcoming, a writ of habeas corpus requiring his release. The action, as defined by plaintiff, is a hybrid. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held:

  [W]hen a state prisoner is challenging the very fact
  or duration of his physical imprisonment, and the
  relief he seeks is a determination that he is
  entitled to immediate release or a speedier release
  from that imprisonment, his sole federal remedy is a
  writ of habeas corpus.

Id. at 500, 93 S.Ct. at 1841. That, of course, raises exhaustion issues, issues raised by the defendants but never addressed by plaintiff.

When plaintiff seeks his release, his action must be brought as a habeas action. Id. at 486, 93 S.Ct. at 1834. When he seeks addition of service credits, the action must be brought as a habeas action. Id. Additionally, when plaintiff seeks reconsideration of a decision that could result in his release, the claim must be brought within a habeas action. See Smallwood v. Missouri Board of Probation and Parole, 587 F.2d 369 (8th Cir. 1978) (reconsideration of parole denial only properly brought as habeas).*fn1 Plaintiff here attacks the procedural validity of a hearing that has already been held. He also seeks parole time credit already allegedly earned and challenges the state's failure to give him a prompt final revocation hearing. Many of plaintiff's claims, therefore, must be brought by a habeas petition.

Plaintiff's claims for damages or prospective relief, however, can be brought concurrently under sec. 1983. See Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. at 499 n. 14, 93 S.Ct. at 1841 n. 14. See also Martin v. Strasburg, 689 F.2d 365 (2d Cir. 1982). As the court said in Preiser v. Rodriguez, the requirement that certain claims be brought by plaintiff under federal habeas corpus "in no way precludes him from simultaneously litigating in federal court, under sec. 1983, his claim" not cognizable in a habeas action. 411 U.S. at 499 n. 14, 93 S.Ct. at 1841 n. 14. The court must, then, in effect divide up this action, parceling all the claims falling under the rubric of Preiser v. Rodriguez into a habeas action and all outside the scope of that decision into a sec. 1983 action. This division is necessitated by the strong federal policy of requiring exhaustion of state remedies before addressing habeas claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Preiser v. Rodriguez, 411 U.S. at 490, 93 S.Ct. at 1836.

In Count I plaintiff seeks withdrawal of his parole violation charge. This, in effect, is an attack on his detention pursuant to the parole violation charge, as the withdrawal would lead to his immediate release. That claim, accordingly, must be brought in a habeas action. See generally, Morrissey v. Brewer, supra. The request in Count I for a bond hearing and a prompt final revocation hearing seeks prospective relief and, therefore, can remain in the sec. 1983 action. See Wolff v. McDonnell, 418 U.S. at 554-55, 94 S.Ct. at 2973-74. The claims for damages and fees are also the stuff of sec. 1983 actions, not a habeas petition. Count II, seeking only damages, also remains. Count III's prayer, for an award of good time credit for time already spent, is properly a habeas claim. A future final revocation hearing; damages, costs and attorneys' fees; and, arguably, prospective awards of good time credit, may properly be sought in the sec. 1983 action.

Count IV's class allegations do not require that claims cognizable only in a habeas action be dismissed. Habeas claims can be maintained as representative actions, see Bijeol v. Benson, 513 F.2d 965 (7th Cir. 1975); also Martin v. Strasburg, 689 F.2d 365 (2d Cir. 1982); United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), cert. denied, 421 U.S. 921, 95 S.Ct. 1587, 43 L.Ed.2d 789 (1975), though restricted in scope and availability. See Bijeol v. Benson, supra. The claims for prospective relief within Count IV are not properly within the habeas claim, see Martin v. Strasburg, 689 F.2d at 374; Smallwood v. Missouri Board of Probation and Parole, 587 F.2d at 371, and thus can remain in the sec. 1983 action. The requests in Count IV for an award of good time credits already allegedly earned and for release, however, are properly brought in a habeas action.

Before determining whether the habeas claims brought in the complaint can be so maintained, however, the court must now determine whether plaintiff has wholly exhausted his state remedies before bringing the habeas claims in this action. Defendants contend that plaintiff has not exhausted his state remedies and the court agrees. The Supreme Court of Illinois has held that "mandamus will lie to enforce the accused parole violator's right to a reasonably prompt final revocation hearing." People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 99, 11 Ill.Dec. 295, 300, 368 N.E.2d 903, 908 (1977). See People ex rel. Johnson v. Pate, 47 Ill.2d 172, 177, 265 N.E.2d 144, 147-48 (1970). Mandamus is a proper route to compel public officials to comply with statutory or constitutional duties. Gordon v. Department of Transportation, 109 Ill.App.3d 1071, 1075, 65 Ill.Dec. 589, 592, 441 N.E.2d 904, 907 (2d Dist. 1982); Overend v. Guard, 98 Ill.App.3d 441, 443, 53 Ill.Dec. 940, 942, 424 N.E.2d 731, 733 (4th Dist. 1981). It is, consequently, also the proper route to mandate a new preliminary revocation hearing with proper due process safeguards, and to seek the award of already earned parole time credits. This is especially so in light of the fact, as discussed, infra, that the Morrissey safeguards sought by plaintiff are mandated by the Parole Board's own rules. See Illinois Prisoner Review Board, Rules Governing Parole, at 13. Should a plaintiff find a request for a hearing within a reasonable time disregarded, or mandated procedures not followed, "it would appear to be an appropriate circumstance for trial court relief under a writ of mandamus directing the parole and pardon board to comply with the provisions of its own [rules]." People ex rel. Johnson v. Pate, 47 Ill.2d at 177, 265 N.E.2d at 148.

It is not clear that all plaintiff's habeas claims could be addressed through mandamus, and possibly seeking mandamus for some of the claims might be futile. Futile acts are not required to satisfy the exhaustion requirement. See generally Heirens v. Mizell, 729 F.2d 449, 457 (7th Cir. 1984). But a mandamus action seeking a preliminary hearing consistent with due process, or a prompt final revocation hearing, or the award of improperly denied good time credits would not necessarily have been futile and exhaustion is required. Because at least some of the claims were not exhausted, the court must dismiss the habeas claims for failure to exhaust. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); United States ex rel. Clauser v. Shadid, 677 F.2d 591, 594 (7th Cir. 1982). The sec. 1983 claims, however, need not suffer the same fate. "If a prisoner seeks both release from confinement and damages or injunctive relief in an action under sec. 1983, the court may properly dismiss the former claim while maintaining the latter." Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). Accord Smallwood v. Missouri Board of Probation and Parole, 587 F.2d at 371.

III. Class Certification

Because some of the class-based claims in Count IV survive, the court must decide the motion for class certification. The class sought to be certified can be described as all persons who are presently, or will be in the future, incarcerated for parole violations without the opportunity for a proper preliminary parole revocation hearing, a prompt final parole revocation hearing, or an opportunity for release on bail pending a final parole revocation hearing. The question presently before the court is whether this case is suitable for classwide determination. Before addressing the Rule 23 considerations, the court must address the Article III requirements of mootness and standing.

A. Article III

Article III of the Constitution requires that those who seek to invoke the jurisdiction of the federal courts satisfy the threshold requirement of alleging an actual case or controversy. Parties are required to show a personal stake in the outcome to "assure that concrete adverseness which sharpens the presentation of issues" necessary for proper resolution of constitutional questions, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691,703, 7 L.Ed.2d 663 (1962). Plaintiffs must show more than an abstract injury; they must show they have sustained or are immediately in danger of sustaining a direct injury which is real ...

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