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LEPRE v. BUTLER

April 11, 1975

FRANK LEPRE, JR.
v.
WILLIAM F. BUTLER, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 Plaintiff's pro se civil rights complaint alleges that the Pennsylvania Board of Probation and Parole (Parole Board) revoked the grant of parole without prior notice or hearing, in violation of the rule of Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). The essential facts are not in dispute. Both parties have moved for summary judgment. Because the application of the Morrissey rule depends upon factual circumstances not fully developed at this stage of the proceedings, both motions for summary judgment must be denied.

 In May of 1974, plaintiff, while serving a prison sentence imposed by a Pennsylvania Court, was advised in writing by the Parole Board that at a meeting of the Parole Board held May 6, 1974, the following decision was rendered:

 
Parole granted to be effective 6-3-74 to an in-patient drug program only. Removal or termination from this program for any reason other than successful completion is considered a violation of parole.

 On June 10, 1974 plaintiff, still a prisoner, received written notice from the Parole Board that at a meeting of the Parole Board held on June 5, 1974 the following decision was rendered:

 
Rescind Board action of 5-6-74, and now refuse parole and review when outstanding charges are disposed of.

 There was no notice to plaintiff, nor was he granted any hearing prior to the decision of June 5, 1974 to "rescind" the prior grant of parole.

 On June 10, 1974 a criminal complaint was filed charging plaintiff under State law with having on June 4, 1974 obtained a controlled substance (hydromorphone hydrochloride, a Schedule II drug) by misrepresentation. According to the answer filed and plaintiff's "statement of facts" in the brief for summary judgment, the plaintiff was transferred from the Bucks County Rehabilitation Center to the Bucks County Prison on May 22, 1974 and the Parole Board was, on the same date, informed that criminal charges of violation of the drug laws would be filed against plaintiff.

 The Parole Board held a revocation of parole hearing on July 3, 1974 and affirmed its decision of June 5, 1974. No contention is raised that such hearing failed in anyway to comport with "due process."

 Morrissey v. Brewer, supra at 485, mandates that where a prisoner has been released on parole, and the parolee is arrested and detained as a parole violator:

 
[Due] process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

 Morrissey v. Brewer involved two petitioners seeking habeas corpus release, rather than damages under the Civil Rights Act, 42 U.S.C. §§ 1983, 1985. In the Supreme Court respondents asserted for the first time that as to petitioner Brewer, a revocation hearing was held approximately two weeks after revocation and as to petitioner Booker, a revocation hearing was held ...


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