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March 20, 1970

Robert E. PHIPPS, Plaintiff,
Paul D. McGINNIS, Commissioner of Correction and Harold W. Follette, Warden, Green Haven Prison, Stormville, New York, Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


LASKER, District Judge.

 Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for an order dismissing plaintiff's complaint on the ground that the complaint fails to state a claim upon which relief may be granted. Defendants contend that plaintiff's claim "does not raise a valid issue for consideration by this Court." I disagree.

 After arrest, but before conviction, plaintiff spent 488 days in county jail. He is presently in the custody of the Warden of Green Haven Prison, Stormville, New York, where he was received June 5, 1968, after a conviction in Nassau County Court of the crimes of burglary in the third degree, possession of burglar's tools as a felony, and petty larceny. He is serving an indeterminate sentence of 3 1/2 to 5 years. He has been granted jail time credit of 488 days for the time he spent in county jail prior to transfer to state prison. However, he has received no "good behavior time" credit ("good time" credit) for the time so served in jail.

 Plaintiff has brought the instant action to compel defendants to recompute his minimum release date (that is, the date upon which he would first have the right to appear before the parole board), contending that he should have received good time credit for the time served in jail prior to his reception at the state prison. As indicated below, if the plaintiff's position is correct he would be entitled to appear before the parole board approximately five months earlier than he would on the basis of the state's computation. Plaintiff urges that the withholding from him of good time credit for the period of his incarceration in county jail (from the date of his arrest to the date of his delivery to state prison) deprives him of equal protection of the laws in violation of the Fourteenth Amendment in that such a method of computing good time discriminates against a prisoner who cannot afford to obtain bail while awaiting sentencing.

 Plaintiff therefore seeks a declaratory judgment that Section 230 of the New York Correction Law, McKinney's Consol. Laws, c. 43, under which his so-called good time was computed is unconstitutional, and for an injunction against the alleged discriminatory practices pursued by defendants in application of that statute.

 Plaintiff (moving pro se) brings his suit under 42 U.S.C. §§ 1981, 1983 (the "Civil Rights Act") and invokes the jurisdiction of the court under 28 U.S.C. § 1343(3). He also seeks the convocation of a three-judge district court *fn1" pursuant to 28 U.S.C. §§ 2281, 2284, to consider the allegations of unconstitutionality and enjoin enforcement of the state statute in question. Plaintiff seeks no money damages, but only the recomputation of his time to appear before the parole board.

 Defendants present two arguments in support of their motion to dismiss: first, that the court lacks jurisdiction since plaintiff's suit seeks release from prison and attempts improperly to avoid the requirements of 28 U.S.C. § 2254; and second, that in any event the complaint fails to state a claim upon which relief may be granted. I treat these contentions separately below.


 It is settled that the Civil Rights statute cannot be used by a state prisoner to circumvent established rules of comity and the requirement of the federal statute that habeas corpus shall not be granted unless it appears that the applicant has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254; Smartt v. Avery, 411 F.2d 408 (6th Cir. 1969); Greene v. State of New York, 281 F. Supp. 579 (S.D.N.Y. 1967); Lombardi v. Peace, 259 F. Supp. 222 (S.D.N.Y. 1966). Thus, it has been held that redress of alleged civil rights violations incurred in state criminal proceedings or release from custody of persons imprisoned by state courts may not be secured under the Civil Rights Act. See, e.g., Martin v. Roach, 280 F. Supp. 480 (S.D.N.Y. 1968); Peinado v. Adult Authority of Department of Corrections, 405 F.2d 1185 (9th Cir. 1969); Johnson v. Walker, 317 F.2d 418 (5th Cir. 1963).

 In the instant action, however, plaintiff makes no charge of unconstitutional detention resulting from any illegality in his state court trial and conviction. While it is true that the complaint (prepared exceedingly well for a layman, but nevertheless inartistically) does request "discharge to parole", I construe this to constitute a prayer for the right to appear before the parole board and not for release from prison.

 Neither the plaintiff's complete nor his immediate liberty is at stake, for even if the relief requested were granted and plaintiff secured an immediate hearing before the parole board, nevertheless the parole board's power is discretionary and an adverse decision would not be subject to judicial review. United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968). However, if plaintiff's time has not been properly computed, what he does lose is, as the Campbell court phrased it, "the possibility that if he appeared before the board he might persuade it to decide in his favor. Of course this loss, in practical, human, terms is serious and involves a chance for at least qualified liberty." Id.

 The traditional view is undoubtedly that federal courts have no power to interfere in the internal discipline of state penal institutions. See, e.g., Wright v. McMann, 387 F.2d 519, 522 (2d Cir. 1967); Siegel v. Ragen, 180 F.2d 785, 788 (7th Cir. 1950). It is now settled, however, that, although the rights of a person serving a valid state sentence are limited, "he does have some federally protected rights which he may redress by a sec. 1983 action against those who have custody of him." United States ex rel. Campbell v. Pate, supra, 401 F.2d at 57; Wright v. McMann, supra.

 The applicable legal principles are no longer in serious dispute. The Civil Rights Act specifically creates a cause of action for deprivations, by persons acting under color of state law, of rights secured by the Constitution. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Furthermore, that state prisoners fall within the protection of 42 U.S.C. § 1983 and may bring an action under the Civil Rights Act is established, Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); Wright v. McMann, supra; Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966); and a district court has power to grant injunctive relief where there has been a deprivation of civil rights, Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Moreover, as distinct from the provisions of 28 U.S.C. § 2254, the Civil Rights Act, when properly relied upon for federal jurisdiction, does not require the exhaustion of state judicial remedies. *fn2" As the Second Circuit Court stated in Wright v. McMann, supra, 387 F.2d at 522-523:

"Any remaining belief in the vitality of the exhaustion principle was dispelled when the concurrent jurisdiction of the federal courts in cases under the [Civil Rights] Act was reaffirmed in clear terms in McNeese v. Board of ...

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