6. At all times material to this action, plaintiff's mother was able and willing to post bail in order to secure the release of plaintiff pending his trial on the March 10 charges. The parole detainer lodged by defendants prevented her from securing his release.
7. On March 24, 1971, plaintiff was found guilty of the lesser charge of disorderly conduct. He was sentenced to pay a fine of $61.00.
8. On March 25, 1971, defendants voted to release plaintiff from detention. That same day, they issued an order to that effect.
9. On March 27, 1971, while plaintiff was still incarcerated in the Montgomery County Prison, a riot occurred there.
10. Plaintiff alleges that, though he did not participate in the March 27 riot, he received a head injury while attempting to return to his cell during it, and that his purportedly illegal detention was the proximate cause of this injury. Defendants allege that they lack information about the truth of the averments about plaintiff's injury, and deny the allegation of probable cause. The Court makes no findings of fact on these disputed issues.
11. Defendants mailed plaintiff's release order (para. 8, supra.) to Parole Agent Lawrence Montgomery.
At 9:31 a.m. on March 29, 1971, the order was received by District No. 7 Parole Board in Allentown, Pennsylvania. March 28, 1971 was a Sunday.
12. On March 31, 1971, plaintiff's release order was hand-delivered to the Warden or his subordinate at the Montgomery County Prison.
13. On March 31, 1971, plaintiff was released from the Montgomery County Prison.
Generally, federal courts are wise to avoid the adjudication of constitutional questions when they can properly dispose of a case on nonconstitutional grounds. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring opinion). In some § 1983 cases, however, a court need not consider certain relatively complex non-constitutional issues unless the facts reveal that a constitutional violation has in fact occurred. In these cases, particularly if the facts are not contested, it may be entirely proper for the court to decide the constitutional issue first. For example, in Fidtler v. Rundle, 497 F.2d 794 (3d Cir. 1974), the District Court had dismissed plaintiff's complaint without reaching the merits of his constitutional claims. The Court of Appeals reversed. It noted that on remand, since the facts did not appear to be contested, "the district court might well decide the legal question -- i.e., whether those facts amount to a constitutional violation." 497 F.2d at 802. It suggested that "[in] such situation, judicial resources may be conserved by the district court's deciding the constitutional question." Id. Like Fidtler, the instant case is one where the critical facts are not contested, and I have no doubt that judicial resources will be conserved by my deciding the constitutional question. Accordingly, I have concluded that it is entirely proper for me to reach the merits of plaintiff's constitutional claims.
THE DUE PROCESS CLAIMS
A. Detention Without a Hearing
In his initial constitutional claim, plaintiff argues that his detention after arrest without a hearing by parole officers was a violation of due process. As authority for his contention, plaintiff relies primarily on Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). This reliance fatally flaws plaintiffs' argument, because Morrissey is not retroactive. 408 U.S. at 490; Valdez v. Perini, 474 F.2d 19, 20 (6th Cir. 1973); Zizzo v. United States, 470 F.2d 105, 108 (7th Cir. 1972); Birzon v. King, 469 F.2d 1241, 1244 (2d Cir. 1972); M'Clary v. California Adult Authority, 466 F.2d 1122, 1124 (9th Cir. 1972).
A state parole board cannot be held liable for non-compliance with constitutionally mandated parole revocation procedures when the alleged noncompliance occurred more than a year before the procedures were announced and the procedures themselves were specifically identified as prospective. That is the case here. The alleged noncompliance took place in March of 1971; Morrissey was decided on June 29, 1972. Accordingly, plaintiff cannot prevail on his initial constitutional claim.
B. Was the Board's Policy of Hand-Delivering Release Orders Unreasonable?
As Mr. Justice Douglas, writing for the majority, said in Monroe v. Pape, 365 U.S. 167, 187, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), Section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Plaintiff's second due process claim sounds in tort, specifically the tort of false imprisonment, for "[unreasonable] delay in releasing a person after he has a right to be released may constitute false imprisonment." 32 Am.Jur.2d, False Imprisonment § 27 (1967), and cases cited therein. Plaintiff contends that the six-day delay between the Board's decision to lift the detainer and his release from the Montgomery County Prison was unreasonable and thus deprived him of his constitutional right to liberty.
The precise gravamen of plaintiff's complaint on this issue is not easily determined. It is certainly a facial challenge to the constitutionality of the Board's 1971 release procedures.
Arguably, it is a challenge to the application of those procedures in the instant case as well. On neither ground, however, has plaintiff made an adequate showing that his constitutional right to liberty was in fact violated by the six-day delay between the Board's decision to lift the detainer and his release from incarceration.
Plaintiff's facial challenge to the constitutionality of the Board's release procedures reduces to a difference of opinion over matters of policy. Plaintiff argues that the Board's practice of hand-delivering release orders to correctional institutions is an unnecessary precaution. See Plaintiff's Memorandum in Support of Cross-Motion for Summary Judgment, Doc. #43, at 17. Even if plaintiff's argument were valid, however, its validity would not render the Board's practice unconstitutional. The touchstones for the application of the Due Process Clause of the Fourteenth Amendment are reasonableness and fairness in view of all the facts and circumstances of a particular case. Barker v. Hardway, 283 F. Supp. 228, 237 (S.D.W.Va.), aff'd, 399 F.2d 638 (4th Cir. 1968), cert. denied, 394 U.S. 905, 22 L. Ed. 2d 217, 89 S. Ct. 1009 (1969); see Hyland v. Procunier, 311 F. Supp. 749, 750 (N.D. Cal. 1970). Admittedly, plaintiff's liberty is at stake, but liberty, under the Constitution, is subject to the restraints of due process, and a regulation complies with the demands of due process when it is reasonable in relation to its subject and is adopted in the interest of the community. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 81 L. Ed. 703, 57 S. Ct. 578 (1937).
The specific Board policy challenged by plaintiff is that of hand-carrying release orders to correctional institutions. At all times material to this action, it was the Board's policy to have agents hand-carry such release orders in order to effect the release of individuals who had been paroled or reparoled. The policy is still in effect. In an affidavit filed in support of defendants' motion for summary judgment, John H. Jefferson, a member of the Board, listed the reasons for that policy:
"a. Detention facilities are not authorized to release a person who has a legally lodged warrant against him or her unless there is a release authorized by the issuing agency presented to the head of the detention facility. By hand-carrying a release order, chances of unauthorized release are far decreased.