The opinion of the court was delivered by: HIGGINBOTHAM, JR.
In this civil rights action, brought pursuant to 42 U.S.C. § 1983, plaintiff Walter A. Burgess challenges the constitutionality of certain specified practices of the Pennsylvania Board of Probation and Parole ("the Board"). At all times relevant to this complaint, the individual defendants were members of the Board. Plaintiff alleges that defendants, by detaining him after his arrest for a new crime pending his acquittal or conviction for that offense, and by detaining him after his conviction on that offense until his sentencing before affording him a parole revocation hearing, deprived him of rights secured to him by the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States. Defendants have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has also moved for summary judgment. The material facts in this matter have either been stipulated to by the parties or appear in affidavits submitted by them. The case is therefore ripe for summary judgment. For reasons that will hereinafter appear, I have concluded that in the instant case, where nine months elapsed between plaintiff's conviction and his sentencing, defendants' practice of delaying parole revocation hearings until after sentencing violated plaintiff's Fifth and Fourteenth Amendment rights. Plaintiff is therefore entitled to summary judgment on that issue. On all other issues, however, plaintiff's motion for summary judgment will be denied, and defendants' motion for summary judgment will be granted.
1. Plaintiff Walter Burgess is a citizen of the Commonwealth of Pennsylvania, and is presently incarcerated at the State Correctional Institution at Graterford, Pennsylvania.
2. On December 29, 1967, plaintiff was sentenced in Montgomery County, Pennsylvania, to serve a two to ten-year term of imprisonment on a series of robbery-related criminal charges.
3. Between June 14, 1970 and December 11, 1972, plaintiff was at liberty on parole, under the jurisdiction and supervision of the Pennsylvania Board of Probation and Parole.
4. While on parole between June 14, 1970 and December 11, 1972, plaintiff was required to comply with specific parole conditions imposed by the Board.
5. One of the aforementioned conditions, Condition No. 3, read as follows:
"You will comply with all Municipal, County, State and Federal criminal laws, and abide by any written instructions of the Pennsylvania Board of Probation and Parole or your Parole Agent. You will immediately notify your Parole Agent of any arrest or investigation by law enforcement agencies."
6. On December 11, 1972, plaintiff was arrested and charged with the new criminal offenses of robbery while armed by force, burglary, conspiracy and aggravated assault and battery.
7. On December 12, 1972, plaintiff was arraigned, a detainer warrant was lodged against him, and bail was set at $10,000.00. Bail remained set at that figure until May 23, 1973, when plaintiff was convicted of the new criminal charges against him.
8. From December 12, 1972, until May 23, 1973, even if plaintiff had posted bail on the December 11 charges, the detainer warrant would have prevented his release from prison.
10. Plaintiff was afforded a detention hearing on December 20, 1972.
11. On January 2, 1973, the Board ordered that plaintiff be detained pending disposition of the new criminal charges filed against him.
12. On January 5, 1973, plaintiff was afforded a second detention hearing. His counsel was ...