filed as amended february 13 1989.: December 30, 1988.
On Appeal from the United States District Court for the District of New Jersey, (D.C. Civil Action No. 87-2043).
Becker, Hutchinson and Scirica, Circuit Judges.
HUTCHINSON, Circuit Judge.
This is an appeal from an order of the United States District Court for the District of New Jersey granting appellees' Rule 12(b)(6) motion to dismiss appellant Melvin's pro se complaint. Melvin claims appellees conspired against him with respect to actions they took as members of the New Jersey Parole Board.*fn1 Those actions returned Melvin to prison and postponed his parole date. Melvin claims they then failed to grant him a timely hearing, as New Jersey law requires, on the stabbing charge which was the basis for returning him to jail and postponing his release on parole. In his complaint Melvin said these acts resulted in his unlawful detention and sought damages.
We have appellate jurisdiction over the district court's order granting the state officials' Rule 12(b)(6) motion pursuant to 28 U.S.C.A. § 1291 (West Supp. 1988). The scope of appellate review over an order granting a Rule 12(b)(6) motion is plenary.
On April 14, 1986, the New Jersey State Parole Board approved Melvin's application for parole. Parole was to take effect August 12, 1986. At the same time, Melvin was approved for a halfway house program until his parole date. While in the halfway house program, Melvin was charged with stabbing his brother and was returned to prison. The Parole Board ordered that Melvin was not to be released on parole pending further investigation. Several hearings were scheduled, but none held until April 22, 1987.
On May 28, 1987,*fn2 Melvin filed this action against Parole Board members and the county prosecutor, charging conspiracy to deprive him of parole without due process. Melvin asked for damages, a jury trial and a mandatory injunction directing that a parole hearing be held. Appellees moved to dismiss on the ground that the suit was in reality a petition for writ of habeas corpus and Melvin had not exhausted state remedies. After briefing on this issue, the district court held the complaint sounded in habeas corpus and ordered it dismissed. An amended order entered October 28, 1987 denied the writ and stated there was no probable cause for appeal.*fn3
This case presents the question of whether a complaint should be construed as a habeas corpus petition or as a civil rights action. In Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), the Supreme Court held that a suit seeking only restoration of good time credits was within the core of habeas corpus because it attacked the very duration of confinement. Accordingly, such a suit was subject to the statutory requirement of exhaustion of state remedies. 28 U.S.C.A. § 2254(b) (West 1977). The Court, however, stated:
If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release--the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly . . . a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies.
Id. at 494 (emphasis in original). The Court specifically contemplated a situation in which a prisoner would simultaneously litigate a civil rights claim relating to the condition of confinement in federal court and a claim challenging the fact or length of confinement in state or federal court. Id. at 499, n. 14. In Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Court examined a class action suit claiming prison disciplinary proceedings violated due process. The Court concluded that 42 U.S.C.A. § 1983 could support a claim for damages but not restoration of good time credits. Moreover, it said that a court could, as a ...