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LEE v. PENNSYLVANIA BD. OF PROBATION & PAROLE

March 29, 1979

Curtis R. LEE
v.
PENNSYLVANIA BOARD OF PROBATION & PAROLE, William F. Butler, Individually and in his official capacity as a member together with his agents and successors in interest John Jefferson, Individually and in his official capacity as a member together with his agents and successors in interest Paul Descano, Individually and in his official capacity as a member together with his agents and successors in interest (Miss) V. Dean, Individually and in her official capacity as a member together with her agents and successors in interest John J. Burke, Individually and in his official capacity as an officer together with his agents and successors in interest Ronald Sharper, Individually and in his official capacity as an agent, together with his agents and successors in interest, and R. Trachtenberg, Individually and in his official capacity as Supervisor together with his agents and successors in interest



The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

Presently before the Court are the motions of all defendants (hereinafter referred to as "the Parole Board") to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b) (6); and, for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the Court will deny the defendants' motions to dismiss for lack of subject matter jurisdiction *fn1" and for failure to state a claim upon which relief can be granted, *fn2" but will grant their motion for summary judgment.

 The relevant facts in the instant case are not in dispute. The plaintiff, Curtis R. Lee ("Lee"), was sentenced to a prison term of from one to three years, beginning effectively on November 21, 1973, as a result of his conviction on a charge of larceny. On October 9, 1974, Lee was granted parole and was released from prison on October 28, 1974. Upon his release, Lee signed a form denoted "Conditions Governing Parole" which stated, Inter alia, that if he were arrested while on parole the Parole Board would have the authority to place a detainer against him which would prevent him from making bail pending disposition of the new charges against him.

 Lee's complaint, filed while awaiting disposition of the robbery and related charges, alleges jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and makes claims for monetary, declaratory and injunctive relief. Named as defendants are the Parole Board and its individual members, as well as various officers and agents of the Board. Lee attempts to allege causes of action pursuant to 42 U.S.C. § 1983 for deprivations of rights guaranteed by the Eighth and Fourteenth Amendments.

 The complaint is inartfully drawn, but construing it liberally as we must, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); United States ex rel. Montgomery v. Brierley, 414 F.2d 552 (3d Cir. 1969), Cert. denied, 399 U.S. 912, 90 S. Ct. 2206, 26 L. Ed. 2d 566 (1970), and in light of the memorandum prepared by Lee's appointed counsel, we find that he relies on two theories. First, Lee contends that the Parole Board's imposition of a detainer against him after his arrest on the robbery and related charges, pending disposition of those charges, constituted a deprivation of his liberty without due process of law, in violation of the Fourteenth Amendment. *fn3" Second, he contends that the effect of the detainer was to deprive him of his Eighth Amendment right to bail by preventing him from posting bail and gaining his liberty pending disposition of the outstanding criminal charges. *fn4"

 A motion for summary judgment can be granted only when the Court determines "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P.

 Scott v. Plante, 532 F.2d 939 (3d Cir. 1976).

 The actions of the Parole Board are subject to certain due process constraints. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Morrissey makes it clear that, before parole can be revoked, the parolee whose conditional freedom is in jeopardy must be afforded two separate hearings and those hearings must be conducted in accordance with certain due process requirements.

 Neither plaintiff nor his appointed counsel contend that these requirements were not met by the Parole Board. Their first contention is that the decision of the Parole Board to impose a detainer upon Lee merely because of his arrest violated his right to due process as guaranteed by the Fourteenth Amendment.

 The flaw in this argument is that it rests on the proposition that plaintiff, a parolee, was entitled to the full range of due process protections before his liberty could be terminated. The weakness in this proposition is clearly illustrated by the Supreme Court in Morrissey v. Brewer, supra, in which Mr. Chief Justice Burger stated:

 
. . . (t)he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the ...

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