APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civ. No. 74-210)
Before Gibbons, Van Dusen and Rosenn, Circuit Judges. Argued Dec. 11, 1978. Argued Before Court En Banc Nov. 8, 1979. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
This appeal requires us to determine whether certain Delaware prison officials violated an inmate's constitutional rights when, because of their fear of adverse public reaction and legislative reprisals against the prison system, they denied his applications for work release.
Following the denial of his work release applications, the inmate, Thomas H. Winsett, brought a civil rights action in the United States District Court for the District of Delaware under 42 U.S.C. § 1983 (1976) and the fourteenth amendment to the federal constitution. In this action, Winsett sought compensatory and punitive damages as well as injunctive and declaratory relief. The prayer for injunctive relief, inter alia, sought to restrain the prison officials from considering possible public reaction and possible reprisal by the Delaware General Assembly when evaluating his future applications for admission to the program. Following a lengthy trial, the district court rejected Winsett's claims and entered judgment in favor of the defendants. This appeal followed.
We conclude that the request for injunctive relief is moot; that Winsett's prayer for damages is permissible as to two of the defendants, subject to certain findings to be made by the district court concerning official immunity and the measure of plaintiff's injury; and that his request for declaratory relief, insofar as it is a predicate to damages, should be granted if the trial court finds that damages may be awarded. Accordingly, the district court judgment will be vacated in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.
Winsett was convicted in 1964 and sentenced to life imprisonment for the felony murder of Robert Paris, a Delaware State Police Officer. The killing aroused a pervasive public outrage throughout the state.*fn1 As certain prison officials would later put it, "Winsett (was) singled out for more public and political attention than other inmates we know of (,) even those whose crimes were more serious. . . ."
Winsett was duly confined in the Delaware Correctional Center to begin his sentence. During the next ten years leading up to the initiation of this litigation, Winsett was a model prisoner. He pursued courses in heating and air conditioning, did maintenance work for the prison, wrote weekly articles about prison life in a prison newspaper, and got along well with other inmates and officers. On September 16, 1974, believing himself to be sufficiently rehabilitated to adjust to life outside the prison, Winsett requested classification to work release status. 425 F. Supp. at 610. Work release is a program by which prisoners are permitted to maintain employment in the community while still under correctional supervision. Releasees return to a correctional institution or a residential center after the completion of each workday. The work release program in Delaware is governed by 11 Del.C. § 6533(a). That section, at the time of Winsett's initial application, provided:
(a) The Department may adopt rules and regulations governing the employment or education of trustworthy inmates outside the institutions . . . except that whenever the Department requests placement of inmates in a school of a reorganized school district, the approval of the board of education of that district shall be a prerequisite to such placement. . . .*fn2
Pursuant to this statutory authority, the Delaware Department of Corrections adopted a set of rules, also applicable at the time of Winsett's September 1974 application for work release.*fn3 Together, the statute and the rules established a vital rehabilitative system, one which the Delaware Division of Adult Corrections has acknowledged as among "the final steps in . . . provid(ing) treatment and training of inmates with an end result of their being able to take their place in society as law-abiding citizens upon their release."
Approval for work release requires the concurrence of three levels of decisionmakers. A prisoner must first apply to an appropriate "classification team." In Winsett's case, this first level review was carried out by the Minimum Security Building Classification Team. That team approved his application for work release. Its recommendation was then forwarded to the so-called Institution Classification Committee which also approved Winsett's application. 443 F. Supp. at 1370; 425 F. Supp. at 610.
As Winsett's application was working its way up to Superintendent Raymond W. Anderson for his final approval, public opposition to granting work release to Winsett became increasingly evident. One manifestation of this growing opposition was an August 7, 1974 letter addressed to Delaware Correctional Center Superintendent Anderson and written by Delaware State Senator Cicione. The letter strongly condemned what the Senator believed to be Anderson's intention to prepare Winsett for work release. "As a State Senator," the author declared, "I demand that you reconsider and retract the actions already taken and take immediate steps to return Winsett to the ranks of regular prison restrictions."
The letter elicited an equally strong response from Superintendent Anderson. On August 8, 1974, more than a month before Winsett applied for work release, defendant Anderson wrote the Senator, informing him that "as long as I am Superintendent of the institution, I shall never be able to entertain any requests from Tom (Winsett) in regards to Work Release. . . ." The Senator "greatly appreciated" this response and "commend(ed Anderson) for (his) stand on not allowing Mr. Winsett to participate in the work-release program." On September 26, 1974, Superintendent Anderson rejected Winsett's application for work release.
Thereupon, on October 15, 1974, Winsett initiated this action. He alleged that the defendants' decision was predicated on the "sensitivity" of his offense, and charged that such a factor is "a legally impermissible" basis for evaluating work release applications. Winsett proceeded against F. Earl McGinnes, Secretary of the Delaware Department of Health and Social Services, Paul W. Keve, Director of the Delaware Division of Adult Corrections and later Acting Commissioner of the Delaware Department of Corrections, Raymond W. Anderson, Superintendent of the Correctional Center, and Donald Davis, Deputy Superintendent of the Delaware Correctional Center.*fn4
While this action was pending in the trial court, Winsett applied a second and third time for work release. His second application, filed in early March of 1976, was approved by both the Minimum Security Building Classification Team and the Institution Classification Committee. However, Milton Horton, then Assistant Director of the Adult Division, recommended that Winsett's "application be deferred until (a) decision on (the) transfer" was made.*fn5 Paul Keve, who was Acting Commissioner of the Department of Corrections at the time, agreed and the application was deferred, but was formally recorded as a denial.
Winsett filed his third and final application for work release in November, 1976. Again he was approved by the Minimum Security Building Classification Team and the Institution Classification Committee. A third committee, newly created by the General Assembly and entitled the Institutional Release Classification Board, also approved Winsett's application. The application was vetoed, however, by Milton Horton, now Assistant Bureau Chief of Adult Correction. Horton advanced three reasons for his veto decision: (1) the seriousness of the offense; (2) the lack of a certified parole release date, which he believed was required by the existing guidelines; and (3) Winsett's previous history of model conduct during incarceration in other institutions for offenses committed prior to the Paris murder, and that his good conduct during his present incarceration should therefore be given less weight. This veto was approved by then Commissioner James T. Vaughn.
Following the denials of Winsett's second and third applications for work release, additional defendants Milton Horton, James Vaughn, and Superintendent Walter W. Redman were joined in the action.*fn6 On December 30, 1976, the district court, in a preliminary jurisdictional ruling, held that plaintiff's request for injunctive relief, insofar as it sought his immediate admission to work release, would be denied. 425 F. Supp. at 613. The court based its ruling on the Supreme Court's decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), which held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus(,)" with the attendant requirement of exhaustion of state remedies. Id. at 500, 93 S. Ct. at 1841. Winsett has not appealed from that decision. The court also held that Winsett's claims for damages, and for declaratory relief as a predicate to damages, could be entertained on the merits. 425 F. Supp. at 612-13. Implicitly, the court further held that, insofar as Winsett's plea for injunctive relief was intended not to secure his immediate release but simply to prevent the future application of impermissible standards in evaluating his work release requests, that injunctive action could be heard in a federal forum.
Winsett's case went to trial on July 21, 1977. At the outset, his lawyer made clear that the primary objection was to the allegedly impermissible standards used in rejecting Winsett's applications for work release. Superintendent Anderson acknowledged the correspondence with Senator Cicione, and admitted that the Senator's Chairmanship of the Joint Finance Committee was a matter of particular concern to the administration of the corrections system. He also acknowledged that he had been aware of the possibility that Paul Keve might not be confirmed by the Senate, given its displeasure with the prison system. Anderson was also examined with respect to his answers to certain interrogatories which seemed to indicate that his rejection of Winsett's initial application was influenced primarily by public pressure in general and the complaints of "(t)he State Police and certain Senators" in particular.
Appellee Keve's testimony was even more revealing. The Legislature, Keve noted, had given the corrections department certain privileges pertaining to programs such as work release and furloughs and had amply demonstrated to him "its readiness very quickly to withdraw such privileges . . . whenever there was disappointment on their part with the way that the Department exercised these." Keve saw his role as one of protecting the "inmate population as a whole" where their privileges might be jeopardized by actions taken in a particular case. Although he did not think that his rejection of Winsett's second application was influenced by the Legislature's possible refusal to confirm him as Commissioner, he admitted that he was conscious of this hazard. However, he satisfied himself that he adhered to decisions which he conscientiously regarded "as right and best for the Department rather than those decisions which simply would protect my job."
Keve acknowledged that if he had taken steps toward granting Winsett work release, relations between the prison system and the legislative leadership would have suffered.*fn7 Indeed, he noted, the rejection of Winsett's second application had nothing at all to do with the existing eligibility criteria. Rather, it was the result of "intense legislative pressure." Had it not been for this pressure, Keve admitted, Winsett would have gone on work release. Although this pressure apparently was not formal legislative action, it was very difficult for him to take "any kind of decisive action in that particular job without incurring some displeasure of somebody and very, very frequently legislators." He knew he could expect some "praise from one kind of legislator and intensive criticism from another kind." He therefore had to weigh Winsett's best interests and the effect of his release on the overall program and other inmates.*fn8 The trial court rendered its decision on January 31, 1978. It found that the denials of Winsett's first and second applications for classification to work release "were motivated at least in substantial part by prison officials' concern about a possible retaliation by the Delaware General Assembly." 443 F. Supp. at 1371. In the case of the second denial, the court was convinced that "Acting Commissioner Keve believed that he had an alternative approach to work release which would better serve Winsett's interests." Id. The court further found that the rejection of Winsett's third application "was not motivated by (a) concern with possible retaliation by the General Assembly or by a concern for public reaction." Id.
Although it found the first two rejections to have been largely the product of prison officials' concern of possible legislative retaliation, the trial court nevertheless held that neither Winsett's due process nor equal protection rights had been violated. To invoke a due process claim, the court noted, a party must first establish that he had a protectible interest. Surveying the work release statute and the regulations promulgated thereunder, the court rejected Winsett's contention that they created a vested state law right to which due process should attach.
The trial court also rejected Winsett's equal protection claim. It held that his failure to allege or prove any class-based discrimination precluded recovery under the Equal Protection Clause. Accordingly, although it acknowledged the rather striking irregularities in the first two refusals of his work release applications, the trial court denied all of Winsett's requests for relief.
Winsett appealed. On May 17, 1977, while the appeal was pending, Winsett was granted parole with the condition that he be transferred to a correctional institution in another state and serve four years in that institution prior to his release to parole supervision. On November 16, 1978, Winsett was transferred to Kilby Correctional Facility near Montgomery, Alabama. As we explain in more detail below, this transfer measurably changes the scope of available relief.
We note at the outset that whatever may be the defendants' substantive liability, Winsett's demand for injunctive relief is now moot. The only injunction sought by Winsett in this appeal is one to restrain the defendants from continuing to rely on allegedly impermissible criteria in evaluating his future applications for work release. Because Winsett has now received a conditional parole, is no longer subject to Delaware's jurisdiction, and shows no interest in returning,*fn9 his injunctive request no longer implicates "an actual controversy . . . at (this) stage . . . of review . . . ." Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S. Ct. 1209, 1216, 39 L. Ed. 2d 505 (1974).*fn10 There is no evidence on the record suggesting that Winsett is currently harmed in any respect by whatever legislative animosity influenced past evaluations of his work release petitions. Cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974) (even though injunction was dissolved with the end of a strike, employers still retained sufficient interests and injury to warrant declaration that state welfare benefits plan for strikers was invalid); Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 178, 89 S. Ct. 347, 350, 21 L. Ed. 2d 325 (1968) (court decision continues to affect official response to rally). Nor do we have any reason to suppose that there may be future occasions on which Winsett will again confront similar treatment. Cf. Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911) (short term orders of ICC are capable of repetition, yet evading review). Furthermore, Winsett did not file his complaint as a class action, in which the need for injunctive relief often survives the mootness of the class representative's interest. See, e. g., Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975).
Winsett's transfer to Alabama vitiates any need to enjoin the application of allegedly impermissible criteria in his case, and because none of the exceptions to the traditional mootness doctrine is present, we will vacate the district court's disposition of plaintiff's injunctive claim and remand with a direction to dismiss.*fn11 United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct. 104, 106, 95 L. Ed. 36 (1950).
Although Winsett's claim for injunctive relief is now mooted, his claims for damages, and for declaratory relief as a predicate to damages, are not. Although he has not demonstrated that the threatened application of impermissible criteria poses any likelihood of ongoing or prospective harm, it is conceivable that past applications may give rise to damages. For example, prison officials acknowledged at trial that work release may favorably affect an inmate's chances for an early parole. In addition, work release is a source of wages for the working inmate. Where such claims remain, the foreclosure of injunctive relief does not moot a party's ...