Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 79 C 2340 -- Kenneth J. Meyers, Magistrate.
Bauer, Chief Judge, and Posner and Easterbrook, Circuit Judges.
This extraordinary prisoner-rights case, now 14 years old and still in the pretrial stage with respect to major issues, exhibits the characteristic pathology of contemporary federal litigation, in which substantive and procedural complexity interact to create monumental confusion and delay.
Ronald Del Raine murdered two policemen in the course of a bank robbery and in 1968 was sentenced to 199 years in prison. In 1972, while in the federal prison in Leavenworth, Kansas, Del Raine was placed in solitary confinement without a hearing, as a suspected ringleader of a prison strike by Mexican-American prisoners, though Del Raine is not Mexican-American. He was shortly transferred to a segregated facility at the federal prison in Springfield, Missouri, and then to the "control unit" at Marion federal prison in Illinois. Marion's control unit is the highest-security facility in the United States, and its inmates live virtually in solitary confinement.
In 1973, while at Marion, Del Raine filed the present suit, in the Southern District of Illinois, against the head of the federal prison system (Norman Carlson) and a number of other prison officials. The suit asked that he be released from segregation, that the order placing him in segregation be deleted from his prison record ("expungement"), and that damages be awarded for the period that he had already spent in segregation. The district judge ruled that service on the U.S. Attorney "shall constitute sufficient service on the respondents," and the U.S. Attorney was duly served on June 20, 1973, six days after the filing of the complaint. In 1974 Del Raine's case was tried, and the judge ruled that Del Raine was entitled to a hearing on the propriety of his confinement to segregation as a disciplinary measure. The judge did not address the issues of expungement and damages. Rather than hold the hearing the prison authorities released Del Raine from segregation.
Del Raine appealed from the district judge's failure to grant him any relief on his requests for expungement and damages. For reasons unknown the processing of the appeal was long delayed, but in 1979, in an unpublished order, we remanded the case with directions that the district court consider Del Raine's request for expungement and damages. On remand the case was assigned to a magistrate. There was additional unaccountable delay but trial was finally scheduled for October 3, 1983. With only three weeks to trial, the U.S. Attorney unexpectedly moved to withdraw from representing the defendants in their personal as distinct from official capacities, on the ground that he had never been authorized to represent them in their personal capacities. It took 10 months for the magistrate to rule on the motion, but on July 18, 1984, he granted it. On July 31 he ordered Del Raine to serve his complaint on the defendants within 60 days.
Del Raine tried. He knew only Carlson's address, and he tried to serve Carlson by mail, but Carlson failed to acknowledge service. Del Raine then managed to have him served personally. He also served interrogatories on Carlson seeking the addresses of the other defendants. Carlson answered these interrogatories, but not until May 31, 1985. On June 19 Del Raine moved for an extension of time within which to serve the remaining defendants and for an order that the U.S. Marshals Service serve them. The magistrate granted the latter request but did not rule on the former. Del Raine delivered copies of the summons and complaint to the Marshals Service forthwith, but the Service took its time about serving them on the defendants. The first of the twelve remaining named defendants was not served until November 13, 1985, the sixth not till January 2, 1986. Four summonses were returned unexecuted and Del Raine apparently never requested service on the last two defendants.
In March 1986 the U.S. Attorney -- whom the seven served defendants had by now asked to defend them in their personal as well as official capacities -- filed a motion to dismiss or (alternatively) for summary judgment, which the magistrate granted, primarily on the ground that Del Raine had failed to make timely service on the defendants. Del Raine has again appealed.
As an original matter one might question whether prisoners should be allowed to bring lawsuits complaining about prison discipline and the conditions of their confinement. Cf. Savage v. CIA, 826 F.2d 561,, (7th Cir. 1987); Tinker-Bey v. Meyers, 800 F.2d 710 (7th Cir. 1986); McKeever v. Israel, 689 F.2d 1315, 1324-25 (7th Cir. 1982) (dissenting opinion). Of course there should be some control over the unbridled discretion of prison officials; but whether the federal courts are the appropriate agency to exert that control may be doubted. These courts are being flooded by prisoner litigation; last year 20,842 prisoner civil rights suits were filed in federal district courts. See 1986 Ann. Rep. of Director, Admin. Off. of U.S. Courts 176 (tab. C2). Most of this litigation has very little merit. See, e.g., Merritt v. Faulkner, 823 F.2d, (7th Cir. 1987) (concurring opinion). However, unless and until either Congress or the Supreme Court changes the ground rules that have evolved for this type of litigation, all judicial officers in this circuit must exert themselves to handle prisoner cases in conscientious compliance with these rules, complex as the rules have become.
An initial mistake in the handling of this litigation was the district judge's ruling in 1973, when the original complaint was filed, that service on the U.S. Attorney would be sufficient. The source of the mistake lies in the dual nature of many prisoner suits, including this one. Suppose, to take a simpler and more common case than this, that a state prisoner wants (1) to be released from custody because the custody violates his federal constitutional rights and (2) to receive damages for the time he has spent in this illegal custody. The first part of the suit would be a suit for habeas corpus under 28 U.S.C. § 2254, brought against the custodian, who would be sued in his official capacity since the prisoner was seeking an official act -- release from custody. Exhaustion of state remedies would be required. 28 U.S.C. § 2254(b). The second part of the suit would be a tort suit under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. Exhaustion of remedies would not be required, Patsy v. Florida Bd. of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982), and the defendants would be sued in their personal capacities, Duckworth v. Franzen, 780 F.2d 645, 649-50 (7th Cir. 1985). Ordinarily the dispensation from exhausting remedies is academic in a dual suit, since the prisoner must exhaust in order to obtain the relief that he is seeking under the habeas corpus statute; and of course he cannot escape the duty to exhaust by suing only under section 1983 yet seeking relief available only under the habeas corpus statute. See Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986) (per curiam), and cases cited there.
The present suit breaks the mold at a variety of points. First, Del Raine is (or was when he brought the suit) seeking release not from prison but just from a more to a less confining form of incarceration; but the habeas corpus statute has been interpreted to embrace this type of plea. See, e.g., McCollum v. Miller, 695 F.2d 1044, 1046 (7th Cir. 1982). Second, he was seeking not just release but also expungement of the disciplinary sanction from his record; but as his objective in seeking this relief was to enhance his prospects for parole, in effect he was seeking to accelerate his release from prison, and this type of plea also is within the habeas corpus jurisdiction. See Larsen v. Sielaff, 702 F.2d 116, 118 (7th Cir. 1983).
Third, Del Raine's original complaint, although filed on a form designed for federal prisoners seeking habeas corpus, contained no express allegation that Del Raine had exhausted his remedies. When as in this case a federal prisoner is seeking federal habeas corpus (see 28 U.S.C. § 2241(c)(1)), he cannot be required to exhaust state remedies; but he is required to exhaust his federal administrative remedies, which is to say his remedies within the prison system. See, e.g., Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986). From Del Raine's complaint it appears that he made considerable efforts to obtain relief within the prison system. Whether these efforts were sufficiently exhaustive we need not decide; the government does not argue that Del Raine failed to exhaust his administrative remedies, and the argument, not being jurisdictional, is therefore waived. Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983); Anderson v. Miller, 772 F.2d 375, 377 (7th Cir. 1985). The Supreme Court's recent decision holding that exhaustion of state remedies in habeas corpus cases is not a jurisdictional requirement confirms the correctness of these decisions, see Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671, 1673, 95 L. Ed. 2d 119 (1987); and while the Court went on to hold that the district court should sometimes relieve the state from the consequences of its waiver, this holding was based on " interests of comity and federalism," id. at 1675, which are not engaged when the question is whether a federal prisoner has exhausted his federal administrative remedies.
There is a fourth respect in which this case departs from the standard format with which we began. Del Raine captioned his original pleading "Complaint for Declaratory Judgment and Injunctive Relief or in the Alternative a Petition for Habeas Corpus," and for many years now the parties have been treating the nondamage portions of the complaint as if this were a civil suit against federal officers under 28 U.S.C. § 1331 rather than a habeas corpus action. Of course Del Raine could not, by the expedient of casting a habeas corpus action as a declaratory or injunctive action against federal officers, escape having to exhaust his administrative remedies, any more than a state prisoner could escape having to exhaust state remedies by casting habeas corpus action as a civil rights suit. Form follows function: a prisoner seeking to get out of custody is suing for habeas corpus regardless ...