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Georgevich v. Strauss

September 5, 1985


On Appeal from the United States District Court for the Middle District of Pennsylvania (Scranton) (D.C. Civil No. 81-0801)

Author: Adams

Before: ADAMS, HIGGINBOTHAM, and SLOVITER, Circuit Judges,


ADAMS, Circuit Judge.

This is an equal protection challenge to parole procedures governing certain Pennsylvania state prisoners. The plaintiff class consists of inmates serving less than two year sentences in state institutions. They claim that they have not been afforded parole procedures granted by state statute to similarly situated prisoners serving less than two year sentences in county prisons. Counsel for the defendant class of Pennsylvania Common Pleas judges essentially agrees that plaintiffs are entitled to the parole procedures they seek to obtain here by federal constitutional attack, but it is the position of the defendant class that these procedures are established by state law, and that under the circumstances here federal judicial oversight is unnecessary. We conclude that whether state law affords the plaintiffs the relief they seek is at least an "unsettled question of state law, the resolution of which would affect the decision of a federal constitutional issue." Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir.), cert. denied, 456 U.S. 990, 73 L. Ed. 2d 1285, 102 S. Ct. 2270 (1982), and that therefore abstention is required under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941).

The extent of the parties' agreement as to the ultimate issue in the case -- whether prisoners serving similar sentences in county and state prisons are entitled to similar parole procedures -- is reflected in the fact that the parties initially agreed to a consent decree providing for such procedures. the fate of that decree, however, also demonstrates quite dramatically that the real issue in dispute here concerns federal-state comity, and not prisoner rights. When notice of the proposed settlement was sent out, the principal objections received focused on the issue of the propriety of unnecessary federal jurisdiction over more than 300 state court judges.

The district judge, who had tentatively approved the consent decree, subsequently revoked his approval, and eventually granted defendants summary judgment on the ground that comity required that plaintiffs exhaust their state remedies before that plaintiffs exhaust their state remedies before seeking federal jurisdiction. While we do not agree with the judge's holding regarding exhaustion, we conclude that his comity concerns were appropriate, and that they properly support Pullman abstention. Accordingly, the district court's judgment will be vacated, and the case remanded so that the district court can retain jurisdiction but abstain from resolution of the state law issue until the state judiciary has been afforded a fair opportunity to do so.


Parole for Pennsylvania state prisoners is governed by a legislative scheme consisting of three statutes. The first, 61 Pa. Stat. Ann. § 331.22 (Purdon Supp. 1984-85), establishes parole procedures for the Pennsylvania Board of Probation and Parole, which is authorized to parole prisoners who have received sentences greater than two years.*fn1 The second, 61 Pa. Stat. Ann. § 331.26 (Purdon 1964), authorizes sentencing judges to parole all prisoners serving less than two years, but sets up no procedures.*fn2 Finally, 61 Pa. Stat. Ann. § 314 (Purdon 1964) creates parole procedures for prisoners serving sentences of less than two years in county institutions.*fn3 When the current parole arrangement was created, in 1941, it was intended to and did in fact provide procedures for all possible parole situations, for prisoners sentenced to less than two years were confined exclusively to county institutions.*fn4

In 1974, however, in response to county jail overcrowding, the legislature passed 42 Pa. Stat. Ann. § 9762(3) (Purdon 1982). That statute authorized the governor to transfer prisoners serving less than two years from the county jail in which they ordinarily would be incarcerated to state correctional facilities. Members of the plaintiff class fall within this category of transferred prisoners; their parole is still in the hands of their sentencing judges, but technically they appear not to be covered by the 1941 parole procedures.

Plaintiff, Anthony Georgevich, instituted this class action under 42 U.S.C. § 1983 (1982), claiming that inmates serving less than two years sentences in state facilities are denied equal protection because they are not given the same due process protections as inmates in county facilities or those who are under the Board's authority.*fn5 The named defendant was Judge Samuel Strauss, Georgevich's sentencing judge, and suit was filed against a class of similarly positioned Pennsylvania judges.

The case was listed for trial on the June 1982 trial list. Shortly thereafter, the parties submitted a proposed consent decree, which provided, in essence, that sentencing courts would hold hearings on parole decisions for prisoners in state institutions (as it must do for prisoners in county institutions) and would give each prisoner denied parole a written statement of the reasons for the action (as the Board must provide to prisoners within its jurisdiction).*fn6 The court tentatively approved the consent decree, and notice of the proposed settlement was sent to members of both classes.

In response to this notice, four objections were filed on behalf of thirteen members of the defendant class: (1) Six judges from Bucks County objected. Stating that it was not appropriate for a state court judge to be subject to the contempt powers of a single federal judge; that they did not consent to representation by defense counsel (who is legal counsel to the administrator of Pennsylvania Courts); that the issues were not proper for resolution by a class action consent decree; that the Pennsylvania legislature and courts were competent to deal with the issues; and that the exercise of federal jurisdiction over more than 300 state court judges was an unwarranted intrusion upon the state judiciary. App. at 58-60; (2) Three judges of Lycoming County proposed that the decree be modified to permit hearings to be held before hearing officers appointed by the sentencing judge. App. at 54-55; (3) A Beaver County judge objected, primarily to the requirement that the sentencing judge hold hearings "at or before the inmate's minimum release date," and stated that he did not assent to being bound by the consent decree if it was approved. App. at 61-62; and (4) Three other judges (who did not identify their county) objected on the grounds that the proposed consent decree exceeded that statutory requirements by adding a provision for a written statement of reasons for denial at or before the minimum release date, and complained that the courts would be inundated with petitions and hearings, effectively creating a substantive right to parole. App. at 63-64.

Troubled particularly by the federal-state comity objections, the district court directed the parties to file additional briefs on the issues of comity, the status of the judicial defendants as proper parties, and the appropriateness of bringing the action pursuant to 42 U.S.C. § 1983. At the point, counsel for the defendant class changed position and urged the court not to approve the consent decree, because of the federal-state problems that had become apparent. Thereafter, the district court declined to approve the consent decree. Georgevich v. Strauss, 96 F.R.D. 192, 196 (M.D. Pa. 1982).

Cross-motions for summary judgment were subsequently filed, and the district court granted defendant's motion. The district court held that although plaintiffs challenged the manner in which parole decisions are made, they sought "habeas corpus type relief" and therefore they were fist required to exhaust their state court remedies. This appeal followed.


Plaintiffs argue that the district court erred in refusing to give final approval to the consent decree. Since resolution of this issue in plaintiff's favor would terminate the appeal, we address it first. Plaintiffs contend that the defendant class waived its right to argue against approval of the consent decree because it initially requested the court to approve the proposed settlement. This is not a case, however, where the class representative or his counsel merely changed his mind. See e.g., Tate v. Werner, 68 F.R.D. 513, 519, 521-22 (E.D. Pa. 1975). Here, the court directed briefing on issues that counsel for the class may not have sufficiently considered before. The shift in position by the class representative and his counsel apparently came about as a result of the issues raised by the court. Under these circumstances, we reject plaintiffs' claim of waiver.

Moreover, even if both parties had continued to support the consent decree, the district court retained the authority to disapprove of the settlement. See Fed. R. Civ. P. 23(e). Before a court approves a class action settlement, it must determine that the settlement is fair, adequate, and reasonable. See Grunin v. International House of Pancakes, 513 F.2d 114, 118 (8th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 124, 46 L. Ed. 2d 93 (1975); City of Detroit v. Grinnell Corp., 495 F.2d 448, 455-56, 462 (2d Cir. 1974). "The district court has considerable discretion in determining whether a settlement is fair and reasonable, and its determination will be reviewed only for abuse of discretion." Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 801 (3d Cir.), cert. denied, 419 U.S. 900, 95 S. Ct. 184, 42 L. Ed. 2d 146 (1974). See Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980); Lowenschuss v. C. G. Bluhdorn, 613 F.2d 18, 19 (2d Cir.) (per curiam), cert. denied, 449 U.S. 840, 101 S. Ct. 117, 66 L. Ed. 2d 46 (1980); Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975). See generally 3 H. Newberg, Newberg on Class Actions § 5690 (1978 & 1984 Supp.).

In light of the objections raised by some members of the defendant class, the court's legitimate concerns about federal-state relations, and the changed position of the defendant class representative, we cannot say that the district court abused its discretion in declining to approve the consent decree.


Because we conclude that approval of the consent decree was properly revoked, we must consider the propriety of the district court's grant of summary judgment. Plaintiffs contend on appeal that the court erred by requiring exhaustion of state remedies in a § 1983 action. Defendants urge affirmance of the district court's decision on three separate grounds: (1) exhaustion should be required because plaintiffs' suit is more properly characterized as a habeas corpus petition than a § 1983 action; (2) state judges are not proper parties; and (3) dismissal is appropriate under the Pullman abstention doctrine. We will address these issues in turn.


The judicially imposed requirement that state prisoners exhaust available state remedies before they may seek a writ of habeas corpus in federal court, see, e.g., Ex parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734 (1886), has now been codified in 28 U.S.C. § 2254(b) and (c) (1982). Equally firm is the principle that litigants who properly seek redress in federal court under 42 U.S.C. § 1983 (1982) are not required to exhaust state judicial or administrative remedies. See Patsy v. Board of Regents, 457 U.S. 496, 500-16, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). Thus, when a state prisoner invokes § 1983, analysis of the relief sought is necessary to determine whether exhaustion of state remedies is required.

The Supreme Court addressed the question of the interrelationship between 42 U.S.C. § 1983 and 28 U.S.C. § 2254 in Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). In Preiser the Court held that a constitutional challenge by state prisoner plaintiffs to the cancellation of their good-behavior-time credits should have been brought in a habeas corpus action, notwithstanding the fact that plaintiffs' claim came within the literal terms of § 1983. The Court enunciated the following rule to determine which action is appropriate:

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.

Id. at 500.

The Court has been careful to distinguish cases seeking release, which must be brought by writ of habeas corpus, from those challenging procedures, which may go forward under § 1983. Thus, in Wolff v. McDonnell, 418 U.S. 539, 554-55, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Court held that although an action seeking restoration of good time credits could be brought only as a petition for habeas corpus, a litigant could sue for damages and an injunction under § 1983 based on a claim that good time credits were lost without proper procedural protections. In Gerstein v. Pugh, 420 U.S. 103, 107 n.6, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), the Court noted that where the relief sought was a hearing, not release from confinement, the action need not be brought as a habeas corpus petition. Cf. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (§ 1983 action raising the issue of whether the due process clause applied to parole-release determinations addressed on the merits without requiring exhaustion).

Relying on Preiser, the district court here concluded that plaintiffs sought "habeas corpus type relief" and, therefore, were required to exhaust their state remedies prior to proceeding in federal court. Plaintiffs argue that Preiser is not applicable because they do not seek release form confinement, only an equalization of the procedures used for making parole decisions. They ...

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