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.
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.
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
[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'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.
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
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
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
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
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 ...