APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 73-2085).
Van Dusen, Biggs and Rosenn, Circuit Judges.
The appellant, Thompson, a state parolee, brings this appeal from an adverse directed verdict in a civil action for damages brought pursuant to 42 U.S.C. § 1983. Thompson alleges that the procedure of the Pennsylvania Board of Parole and Pardon (Board) and of Member Jefferson violated the Fourteenth Amendment guarantee of procedural due process as set out and defined by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (decided June 29, 1972). Thompson seeks damages from Board member Jefferson, Parole Supervisor Burke, and Parole Agent Strickler. We affirm the directed verdict in favor of Burke and Strickler for no evidence was presented showing them to be culpable of any violation of the statute. The Board, of course, cannot be sued for it is not a "person" within the meaning of Section 1983. Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S. Ct. 278, 24 L. Ed. 2d 234 (1969). Facts are stipulated as follows:
"1. On June 16, 1971 plaintiff was sentenced before the Philadelphia Court of Common Pleas to a term of 6 months to 5 years for the offenses of Burglary, Larceny and Receiving Stolen Goods. [ Burglary, 18 P.S. (Appendix) § 4901.] Plaintiff was also sentenced to concurrent terms of probation on other charges. On June 16, 1971 plaintiff entered the State Correctional Institution at Graterford to begin serving his sentence.
"2. On September 27, 1971 the Pennsylvania Board of Probation and Parole (hereafter referred to as the Parole Board) granted plaintiff parole. On that same day plaintiff was released to the Eagleville Hospital and Rehabilitation Center.
"3. On October 7, 1971 plaintiff was discharged from the Eagleville Hospital and Rehabilitation Center.
"4. On June 22, 1972 plaintiff was arrested in Philadelphia and charged with Burglary and related offenses. On that same day a Warrant to Commit and Retain*fn1 was issued by the Philadelphia District Office of the Parole Board.
"5. On July 11, 1972 plaintiff was interviewed by an agent [Bednarczyk] of the Parole Board at the Philadelphia Detention Center. On September 27, 1972 the Parole Board in Executive Session ordered plaintiff returned as a technical parole violator pending disposition of open charges.
"6. On October 20, 1972 the Parole Board in Executive Session voted to recommit plaintiff as a technical parole violator.
"7. Plaintiff's trial on the charges lodged against him on June 22, 1972 was listed for December 12, 1972; January 18, 1973; March 20, 1973 and May 18, 1973. On each of these dates the trial was postponed.
"8. On April 26, 1973 the Parole Board in Executive Session rescinded its recommitment action of October 20, 1972 and recommended that plaintiff be allowed to post bond for his release on the condition that plaintiff formulate a complete parole plan and submit to intensive supervision. Plaintiff was unable to meet these conditions and consequently was not released.
"9. On May 30, 1973 plaintiff was finally tried before the Philadelphia Common Pleas Court on the charges arising out of the June 22, 1972 arrest. He was found guilty and sentenced on July 12, 1973 to a term of 11 1/2 to 23 months and consecutive terms of probation. On July 13, 1973 plaintiff was returned to the State Correctional Institution at Graterford.
"10. During the late afternoon of August 6, 1973 plaintiff received notice that the Parole Board intended to hold on August 8, 1973 a hearing for plaintiff as a convicted parole violator. This notification was sent by Mr. Thomas J. Feeney, Parole Case Specialist at the State Correctional Institution at Graterford.
"11. On August 8, 1973 plaintiff was interviewed by Mr. Ernest Conley, Parole Board Member. On August 17, 1973 the Parole Board met in Executive Session and voted to recommit plaintiff as a convicted parole violator.
"12. On September 25, 1973 plaintiff filed this lawsuit in the Federal District Court for the Eastern District of Pennsylvania.
"13. On October 10, 1973 plaintiff received notice from the Parole Board that it had recommitted him as a convicted parole violator."
It is necessary to state further facts. A jury trial was held. Thompson testified that after his arrest on June 22, 1972, he had a meeting with Jefferson, the Parole Board member, on September 19, 1972, at the Philadelphia Detention Center. Thompson testified that Jefferson came to the Detention Center with a public defender. Thompson related that he discussed with Jefferson the parole detainer and what had happened to him.*fn2 ...