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March 17, 1976

Paula CICERO et al., Plaintiffs,
Ennis J. OLGIATI, individually and as Chairman of the New York State Board of Parole, et al., Defendants

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

 This suit by prisoners in New York State correctional facilities challenges the standards and methods by which the New York State Board of Parole (Parole Board) grants or denies parole on the ground that they are so arbitrary as to violate the requirements of due process. At issue is the constitutionality of the statute (on its face and as applied) which specifies the basis for parole release, New York Correction Law § 213. Plaintiffs seek a declaratory judgment that § 213 is unconstitutional on its face because it is "incapable of being applied rationally, fairly, consistently and non-arbitrarily," (para. 31, Amended Complaint) and that the Parole Board in practice "unfairly discriminates among prisoners" (para. 35) and fails "to make parole release decisions which are rational, fair, consistent and non-arbitrary from case to case." (para. 34)

 The plaintiffs are prisoners who have either been denied parole or who will soon become eligible for parole consideration. Defendants are the Chairman and members of the Parole Board, and the Commissioner of the New York State Department of Correctional Services, under whom the Board serves.

 The defendants move to dismiss the amended complaint. Plaintiffs seek a class action determination.


 The Statutory Provision and the Challenge to Parole in New York

 New York Correction Law § 213, which sets forth the grounds for granting parole release, reads:

"§ 213. Reasons for release
Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of parole is of opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society. If the board of parole shall so determine, such prisoner shall be allowed to go upon parole outside of prison walls and enclosure upon such terms and conditions as the board shall prescribe and shall remain while thus on parole in the legal custody of the board of parole until the expiration of the maximum term or period of the sentence or return to an institution under the jurisdiction of the commissioner of corrections." *fn1"

 Plaintiffs attack the facial validity of § 213 not only on the ground that the language authorizing release on parole -- "if the board of parole is of opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society" -- is so vague as to vest unbridled discretion in the Parole Board, but also because it requires the Board to make predictions regarding an inmate's future conduct upon release that are claimed to lie beyond the grasp of human knowledge and expertise. The amended complaint also alleges that the Parole Board "unreasonably and unfairly discriminates among prisoners . . . because of race, class and ethnic prejudices" (para. 35) and fails to make decisions "which are rational, fair, consistent and non-arbitrary from case to case." (para. 34) Plaintiffs assert that those decisions are based on inaccurate and insufficient data and are hastily and carelessly determined.

 Defendants move to dismiss the amended complaint on a variety of grounds: That plaintiffs' exclusive remedy is a habeas corpus petition, not a civil rights action; that this court should abstain from exercising jurisdiction to allow state courts to deal with the issues presented; that action by this court would offend principles of comity; that a declaratory judgment would unduly interfere with state proceedings; that plaintiffs' claims should be determined solely on a case by case analysis; that the due process clause is inapplicable to the parole release system; that Correction Law § 213 is not unconstitutionally vague and overbroad; that the allegation that the Parole Board's decisions are arbitrary is fatally deficient because the amended complaint does not allege that the decisions are unsupported by the evidence; and that the allegation of racially discriminatory conduct by the Board is unsupported and conclusory. Prolific as these assertions may be, they fall analytically into two categories: first, that a federal court does not have jurisdiction of the subject matter, or if it does, should decline to exercise jurisdiction; and second, that the amended complaint fails to state a cognizable constitutional claim.


 The Applicability of Doctrines Precluding A Federal Court's Consideration of the Merits of a Case

 Plaintiffs sue under 42 U.S.C. § 1983 which empowers federal courts to consider alleged violations of constitutional rights by those acting "under color of state law" without requiring a plaintiff first to seek redress in a state forum. Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 481-82, 5 L. Ed. 2d 492, 502-03 (1961). However, recognition of the potential tension between the powers accorded federal courts under the Civil Rights Act and respect for the ability of state courts to safeguard constitutional guarantees has prompted the Supreme Court in certain circumstances to narrow the scope of federal court action in cases alleging § 1983 claims. The Court has also specified the circumstances in which no jurisdiction exists under § 1983.

 A. Relief Under the Habeas Corpus Statute (28 U.S.C. § 2241ff) As Opposed to 42 U.S.C. § 1983

 In Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) the Supreme Court held that when a prisoner's challenge goes to

"the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate . . . or a speedier release,"

 the sole available remedy is a writ of habeas corpus which requires that a plaintiff first exhaust state remedies under 28 U.S.C. § 2254(b). Id. at 500, 93 S. Ct. at 1841-42, 36 L. Ed. 2d at 456-57. Preiser ruled that where the action is "close to the core" of habeas corpus, Congress' "specific determination" that habeas petitioners initially exhaust state judicial remedies must be respected despite a plaintiff's choice of jurisdictional base. Id. at 489, 490, 93 S. Ct. at 1836-37, 36 L. Ed. 2d at 450-51.

 The State characterizes the complaint here as seeking a "wholesale reform of the New York parole system" and argues that the remedy sought fits the Preiser definition of a petition for a writ of habeas corpus. We disagree. Although plaintiffs admittedly seek a close examination of the criteria and methods used in making parole release determinations, they do not claim that they or any members of the class they wish to represent are entitled to immediate release or that they have a right to parole at all. Moreover, they seek neither an earlier nor a speedier hearing at which they will be considered for parole. In short, plaintiffs do not ask for release from state custody, and their claims do not fall under the habeas corpus statute.

 Our view is consistent with post- Preiser rulings in this and other circuits that attacks by prisoners on the manner of parole decision making as distinct from its outcome are not subject to the exhaustion requirements of 28 U.S.C. § 2254(b). Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975); Leonard v. Mississippi State Probation & Parole Board, 509 F.2d 820 (5th Cir. 1975); Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974), vacated and remanded as moot sub nom., Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); U. S. ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925 (2d Cir. 1974), vacated and remanded as moot sub. nom., Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974). Accord, Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S. Ct. 2963, 2973-74, 41 L. Ed. 2d 935, 949-50 (1974) (due process challenges to prison procedures are properly brought under § 1983). *fn2"

 The authorities cited by the defendants are not to the contrary. None deals with a complaint restricted to a prayer for declaratory judgment that the parole statute and process are unconstitutional. The closest to the mark is Baskins v. Moore, 362 F. Supp. 187 (D.S.C.1973) which involved parole release proceedings. While the Baskins petitioners did seek a declaration that the procedures by which they were denied parole were unconstitutional, they also sought the relief of new parole hearings. We may agree or disagree with Baskins that prayer for such relief constituted a habeas corpus action as defined in Preiser, but the plaintiffs in the case at hand do not seek a new hearing, and this suit accordingly is not ". . . within the core of habeas corpus in attacking the very duration of their physical confinement itself." Preiser v. Rodriguez, supra, 411 U.S. at 487-88, 93 S. Ct. at 1835, 36 L. Ed. 2d at 449.

 The other cases cited by defendants are equally inapplicable. Mason v. Askew, 484 F.2d 642 (5th Cir. 1973) involved a complaint in which the petitioner sought actual release. The inmates in United States ex rel. Dereczynski v. Longo, 368 F. Supp. 682 (N.D.Ill.1973) asked not only for an injunction requiring procedural due process in parole revocation procedures, but also for "immediate and more speedy hearings" to determine whether they were entitled to release.

 B. Abstention

 Defendants argue that the court should invoke the doctrine of abstention because plaintiffs' claims involve a statute uninterpreted by state courts, and adjudication of the merits would "needlessly thrust the federal courts into a particularly sensitive and complex area of state regulation."

 As recently as seven weeks ago, the Court of Appeals for this Circuit reaffirmed the proposition framed by Justice Frankfurter in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) that the doctrine of abstention is a narrow exception to the overriding principle that

"one having a bona fide claim is normally entitled as a matter of right to have the claim adjudicated by a federal tribune [without] relegating the matter to the state court or . . . requiring the plaintiff to exhaust state remedies." McRedmond v. Wilson, 533 F.2d 757, at 760- (2d Cir. 1976).

 Accord, Kusper v. Pontikes, 414 U.S. 51, 54, 94 S. Ct. 303, 306, 38 L. Ed. 2d 260, 264-65 (1973); Lake Carriers' Association v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 1756, 32 L. Ed. 2d 257, 268 (1972). Under the doctrine of abstention, a federal court should defer its own action in favor of state court interpretation of a state statute where

"resolution of a federal constitutional issue is controlled by the interpretation of an unclear or complex state statute that is susceptible to a construction which would avoid or modify the necessity of a constitutional adjudication." McRedmond v. Wilson, supra, 533 F.2d at 760.

 As summarized by the McRedmond court, abstention is appropriate only if the case presents three particular preconditions:

"1) the statute must be unclear or the issue of state law uncertain;
2) the resolution of the federal issue must depend upon the interpretation to be given to the state law; and
3) the state law must be susceptible to an interpretation that would avoid or modify the federal constitutional issue." McRedmond v. Wilson, supra, at 761. (citations omitted)

 The combination of these three elements is missing here.

 Although plaintiffs assert that the parole statute is void for vagueness, the issue of constitutionally impermissible ambiguity in a statute does not by itself necessitate resolution by state courts. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515, 520 (1971). Defendants have pointed to no provision in New York Correction Law § 213 or its companion statutes and regulations which construction by state courts could narrow in such a way as to modify or obviate the need to address plaintiffs' constitutional claims. Indeed, the constitutionality of the vast discretion explicitly accorded the Parole Board in § 213 and 7 N.Y.C.R.R. § 1910.5 is the very issue at stake here. *fn3" As the Supreme Court stated in Wisconsin v. Constantineau, supra, where "the naked question . . . is whether that Act on its face is unconstitutional, . . . abstention should not be ordered merely to await an attempt to vindicate the claim in state court." Id. at 439, 91 S. Ct. at 511, 27 L. Ed. 2d at 520, citing Zwickler v. Koota, 389 U.S. 241, 251, 88 S. Ct. 391, 397, 19 L. Ed. 2d 444, 451-52 (1967). See also, Lake Carriers' Association v. MacMullan, supra, 406 U.S. at 510, 92 S. Ct. at 1757, 32 L. Ed. 2d at 268-69.

 In any event, the New York Court of Appeals has ruled on three separate occasions that the Parole Board's "discretion is absolute and beyond review in the courts." Hines v. State Board of Parole, 293 N.Y. 254, 257, 56 N.E.2d 572, 573 (1944); see Matter of Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 29, 298 N.Y.S.2d 704, 710, 246 N.E.2d 512 (1969); People v. Fink, 29 N.Y.2d 443, 446, ...

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