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October 29, 1975

ROBERT L. JOHNSON, Superintendent State Correctional Institution Graterford, Pa. and RICHARD W. LINDSEY, Former Chairman, Pennsylvania Board of Probation and Parole Harrisburg, Pa. and WILLIAM C. BOOR, Former Acting Chairman, Pennsylvania Board of Probation and Parole, Harrisburg, Pa. and WILLIAM BUTLER, Acting Chairman, Pennsylvania Board of Probation and Parole, Harrisburg, Pennsylvania

The opinion of the court was delivered by: FOGEL



 Before us are cross-motions for summary judgment in a civil rights suit seeking damages for (1) failure of the members of the Pennsylvania Board of Probation and Parole (Parole Board) to ascertain that plaintiff's parole violator status had changed from that of a "convicted violator" *fn1" to that of a "technical violator"; *fn2" (2) their failure to grant him a satisfactory hearing at any time during a period of some eighteen months; and (3) the resultant continued incarceration in violation of plaintiff's civil right to be free from deprivation of liberty without due process of law, in violation of the fourteenth amendment. Because we find that the defendants are not protected by immunity from suit under the circumstances presented here, and because material facts remain at issue, we will deny both motions and will set forth further proceedings which are to follow.


 Plaintiff John Jones, a former prisoner now free on parole, originally sued on account of alleged civil rights violations, pursuant to 42 U.S.C. § 1983 and § 1985. The jurisdiction of this Court was invoked under 28 U.S.C. § 1343. We granted him the right to proceed in forma pauperis, and appointed a student from a local law school to represent the prisoner, pursuant to Rule 9-1/2 of the Local Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania (Local Rules). Thereafter, several defendants and several counts were dismissed by stipulation, and leave to file an amended complaint was granted. Plaintiff propounded interrogatories, which were answered, and cross-motions for summary judgment were then filed.

 The amended complaint charged that Jones, an individual resident of Pennsylvania then residing at Graterford State Correctional Institution, either as a prisoner of the Commonwealth or as a parole violator under the direct supervision of the Parole Board, had been denied due process of law, first, by the failure of the Board to grant him a parole hearing on several specific occasions and, second, by his continued detention when he had not been afforded a hearing in line with the standards set forth in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). The defendants are Robert Johnson, the Superintendent of Graterford; Richard Lindsey, the Chairman of the Parole Board; and William Boor and William Butler, Acting Chairmen of the Parole Board. Each defendant was sued individually and in his official capacity. At the hearing on the summary judgment motions, it was stipulated that the complaint be dismissed as to Johnson. Therefore, only Lindsey, Boor and Butler remain in the action as defendants.

 The relief sought consists of (1) a declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 that defendants' actions or omissions violated plaintiff's civil rights; (2) a preliminary and permanent injunction (a) to compel removal from the Parole Board files of any reference to certain acts committed by him for which he was subsequently convicted while in prison during the allegedly illegal period of incarceration, and to bar consideration of those events in any determination of his parole status, (b) to compel recomputation of a new maximum release date to reflect his unconstitutional detention of four and one-half months; and (c) to prohibit any punishment or retaliation for filing this action; and (3) compensatory damages of $3900.00 jointly from the defendants. It was agreed at the summary judgment argument that only damages remained at issue, as all other relief had been rendered moot by plaintiff's release on parole.

 Certain facts are not in dispute. A recitation of them will provide the background of this matter. On February 15, 1972, plaintiff was released on parole from the State Correctional Institution at Graterford, Pennsylvania (Graterford). Two days later he was arrested on charges of larceny, receiving stolen goods and operating a motor vehicle with stolen license plates. No trial was ever held on these charges, and they were discharged in June of 1973. On March 17, 1972, Mr. Jones was arrested and detained on charges of larceny of an automobile, operating an automobile without the consent of the owner, and receiving stolen goods. He was tried and convicted of these charges on April 11, 1972, and, on April 17, 1972, he was sentenced to five years on probation. This conviction was appealed on April 20, 1972, and a writ of certiorari was granted by Judge Anderson of the Court of Common Pleas for Philadelphia County on August 17, 1972, which resulted in vacation of the conviction; petitioner was then ordered to be discharged.

 On March 23, 1972, a warrant for parole violations had been lodged by the Parole Board. The basis of the warrant was a change of address and the failure to notify the parole officer of the arrest on February 17. On May 22, 1972, the plaintiff was ordered returned to the prison for a hearing on his parole status. He was returned on June 15, 1972, was given a hearing on August 9, 1972, and was ordered recommitted as a convicted parole violator on September 13, 1972.

 Mr. Jones was involved in an altercation at the prison in November, 1972. However, no charges were filed for approximately two months. His trial and conviction on those charges did not occur until July 25, 1974.

 On January 4, 1973, the Clerk of Quarter Sessions for Philadelphia County sent a letter to the prison informing the prison officials of the vacation of the conviction and the discharge order. This was admitted to have been received by a parole specialist on or before January 8, 1973. Coincidentally or otherwise, a detainer on charges arising out of the November, 1972, prison incident was lodged on January 8, 1973.

 Parole Board reviews were held on several occasions. The first one, scheduled in February, 1973, was cancelled because the prisoner was still confined in maximum security because of the November, 1972, incident. He was seen on April 5 and August 8, 1973, on which occasions reparole was refused because of the open charges. Additional prison misconduct occurred in late 1973, but no charges were ever lodged.

 The "official notification" *fn3" of vacation of the April 17, 1972 conviction was received on March 18, 1974. The Parole Board reaffirmed its recommittment action of September, 1972, at this time, but as a technical violator, and listed the case for hearing. A Board member saw plaintiff on April 4, 1974, and the case was then listed for a hearing by a quorum of the Board. The first hearing was continued when Mr. Jones failed to appear, and a full hearing was then held on June 5, 1974. At an Executive Session on June 13, 1974, the Board voted to recommit plaintiff as a technical violator for changing residence without notice, to reparole on June 26, 1974, and to require that the detainer be answered. Trial on the charges listed in the detainer was held on July 25, 1974, and the Board was notified on the following day of the imposition of a sentence of one to three years, with an effective date of November 10, 1972. Thus, the minimum release date was November 10, 1973, and the maximum date was November 10, 1975.

 An interview before a Board member was thereafter held on August 7, 1974, and, in an Executive Session held on August 20, 1974, the Board voted to parole as of August 28, 1974.

 Plaintiff's maximum release date for the sentence from which he was originally paroled had been modified from December 23, 1975, to January 25, 1976, a difference of one month and two days, by Board action on September 13, 1972. This date was recomputed to the original maximum release date by the Board on March 18, 1974, the date of receipt of official notification of vacation of the April 17, 1972 conviction.


 Pennsylvania law distinguishes between and defines "convicted parole violators" and "technical parole ...

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