Robert J. Scarpa v. U. S. Board of Parole, Walter Dunbar, Chairman

TUTTLE, Circuit Judge,

with whom WISDOM, GOLDBERG and GODBOLD, Circuit Judges, join, dissenting:

With deference, I dissent from the opinion and the judgment of the court. Also, with deference, I must say that I think the difference between the result reached by the majority and that which I believe to be correct arises from a failure of the majority opinion to meet the issues actually raised by Scarpa’s complaint.

Since the opinion of the court recognizes, as, of course, it must, that the allegations of Scarpa’s complaint are to be taken as true, Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957); Hargrave v. McKinney (5th Cir.) 413 F.2d 320 , it seems that there should be little difficulty in stating the issues simply by reading the petition in light of any legal principles that may touch on the rights of an applicant for parole.

I regret my inability, in spite of every effort to do so, clearly enough to state the issues in the original opinion written for the court. The result is that the present majority opinion contains several critical statements dealing with Scar-pa’s allegations which I think inadequately state his contentions.

(1) The first statement which I think inadequately states the true situation (especially because of Scarpa’s primary contention that the Board acted solely on his record of convictions and did not consider his record while at Sing Sing) is the following: “Having completed his state sentence” (emphasis added). This may or may not be technically a correct statement, but it fails to state that he was paroled from his state sentence in New York.

(2) The second impression given by the language of the majority opinion which I think misses the principal basis of Scarpa’s attack is the following: “He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole” (emphasis added). Scarpa’s whole case, on the other hand, was based on his contention that the Board did not investigate any of the information submitted by him at all. This is reiterated in his allegations that the Board “predicated their denial of parole with nothing before them except reports from various sources belonging to the Federal Government, solely pertaining to the criminal history of plaintiff”. 1

(3) The third statement that, with deference, it seems to me, misses the real point is this statement in the opinion : “The [trial] court held that it was not improper for the Board to place con *285 trolling emphasis on Scarpa’s previous criminal record in denying parole”. What seems to me to be faulty about this statement is that it implies that the trial court was dealing with a record that disclosed a Board proceeding in which several factors (such as those mentioned in the majority opinion) 2 were considered by the Board and the Board then placed “controlling” emphasis on Scarpa’s criminal record. To the contrary, according to the complaint, “the consideration afforded the plaintiff for possible release was predicated solely upon plaintiff’s past criminal record” (emphasis in original).

(4) The fourth statement which I think indicates a failure of the court to come to grips with the real issue is the following: “Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole”. Of course, it is true that Scarpa, in different words, alleged that the Board placed undue emphasis on his prior criminal convictions, but the truth is he alleged a lot more — so much more, in fact, that it completely changes the entire issue. He alleges that the Board placed exclusive, sole reliance on his past criminal record — this is quite a different allegation from the one stated in the majority opinion, even though it can be said to be included within the language used by the majority opinion. I would, of course, agree that it is not the court’s province to re-weigh the evidence or re-place the emphasis. The question is whether the Board can fail even to consider anything except the criminal record, and then deny the parole on that alone.

(5) Finally, in discussing Scarpa’s constitutional arguments, the majority opinion says: “He does not allege that the Board’s actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case” (emphasis added).

It is difficult to understand the statement that Scarpa did not allege that the Board’s actions were “unlawful” when the short statement of fact at the beginning of the majority opinion says: “He based his claim for relief on the internal procedures and practices of the Board which he asserted, denied him due process of law" (emphasis added). With deference, I would think that an allegation that he had been denied due process would fit within the definition of “unlawful” no matter how narrowly the majority of the court means to use that word. Moreover, while this pro se petitioner did not use the precise word “arbitrary” I would think that the clear statement that the Board failed to carry out its own prescribed procedures would be a sufficient allegation of “arbitrary” action.

Then, as to the concluding clause, “but only that it did not fully investigate his case,” I have already pointed out how this is a clearly inadequate statement of Scarpa’s contention. He says that the Board did not truly investigate his case at all, other than reviewing the criminal reports.

In sum, I think the issue posed by the majority is not the issue which Scarpa sought to raise at all. I think the issue is whether, when a defendant is given a maximum sentence coupled with the right to have consideration for parole at any time, all as provided under the indeterminate sentence procedures of 18 U. S.C.A. § 4208(a)(2), see footnote 2, majority opinion supra, and he is given a hearing before a parole examiner, the courts have any power to hear a complaint that he has been denied a hearing and will continue to be denied a hearing at which anything will be considered other than his past criminal record.

*286 What is most disturbing to me here is that the court affirms a dismissal of this case by a trial court on the bare bones pleadings. The Board filed no denial of the charge that it violated its own regulations in conducting the hearing. It did not deny the allegations that it considered solely the criminal reports. Yet the trial court in granting a motion to dismiss made a factual finding “though the court supports a full, fair hearing and consideration prior to parole decision 3 it cannot say on the facts of this case that petitioner was denied due process”. The court then found facts that appear nowhere in the record. The court merely recited what the regulations require. See 28 C.F.R. § 2.15 . What is required by the regulations is precisely what Scarpa alleges did not occur and there is no contradiction — except in the government’s brief. Nevertheless, the trial court made a finding that they did occur.

There is nothing to be gained by repeating what was said in the original opinion, Scarpa v. United States Board of Parole et al., 468 F.2d 81 , 5th Cir. (1972) as to the danger and cost of judicial time resulting from dismissal under F.R.Civ.P. 12(b), for failure to state a claim, especially where new and possibly constitutional questions are at issue. Byers v. Byers, 254 F.2d 205 , 5th Cir. (1958), Public Affairs Associates, Inc. v. Richover, 369 U.S. 111 , 82 S.Ct. 580 , 7 L.Ed.2d 604 (1962).

The vice of the order appealed from is that it appears (and the majority now approves this result) to have laid down broad prohibitions to prisoner complaints about the fairness of a very important part of our system of criminal justice without a record by which the true facts have been developed. It is no answer to say that “the Board of Parole is given absolute discretion in matters of parole,” Tarlton v. Clark, 441 F.2d 384 , 385, 5th Cir. (1971). Of course, courts cannot reverse a denial of parole, nor order parole granted, but I suggest that no member of this court would hesitate a second to join in court action invalidating either a regulation, by the Board or a proceeding by it if it were acknowledged that its action was a result of a policy or regulation to the effect that no consideration for parole would be given to any particular class of prisoners or to any person convicted of a particular crime. Such a course of action would be so obviously arbitrary and an abuse of discretion that it would be stopped in a moment. So much, then, for the “absolute discretion” proposition. In point of fact the majority opinion itself does not seem to me to stand on that basis. It stands rather on the proposition that what Scarpa says happened to him (although as I have pointed out above, I think the opinion does not adequately describe what Scarpa says happened) and what he says will continue to happen to him does not raise an issue of abuse of discretion or due process.

To the contrary, I think the petition alleges a clear case of abuse of discretion and failure to follow the regulations of the Board itself such as to require that further proceedings be pursued in order to resolve the truth or falsity of Scarpa’s complaint. Moreover, I think the recent thrust of Supreme Court opinions may well indicate that arbitrary and unfair procedures of the Parole Board are subject to court review because of want of due process. See in this connection Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) where the Court in a revocation of parole case said that “parole has become an integral part of the penological system.” The Court also said: “society has a further interest in treating the parolee with a basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” 408 U.S. 471, 484 , 92 S.Ct. 2593, 2602 . Is not the *287 same reasoning applicable to the manner in which parole applications are to be treated? Cf. Goldberg v. Kelly, 397 U. S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 .

The distinction drawn by the majority between a hearing to revoke parole and a hearing to grant parole is, of course, a valid one. However, the fact that there is a distinction is still a far cry from saying that while a revocation hearing is subject to due process requirements Morrissey v. Brewer, supra, a parole hearing itself can be conducted in absolute disregard of all due process requirements. The Court in Morrissey said:

“Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 [ 71 S.Ct. 624, 646 , 95 L.Ed. 817 ] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 [ 90 S.Ct. 1011, 1018 , 25 L.Ed.2d 287 ] (1970). The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [ 92 S.Ct. 1983 , 32 L.Ed.2d 556 ] (1972). Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. ‘ [Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 [ 89 S.Ct. 1820 , 23 L.Ed.2d 349 ] (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 .

The facts have not been developed in this case. I am convinced that if they are as alleged by Scarpa, then he is entitled to relief. As was stated in the original opinion in the case, I think it inappropriate to attempt to prescribe precisely what relief might be available to him until all of the facts are known. At the very least it seems to me the government should be required to admit or deny the factual allegations in Scarpa’s complaint. Further proceedings would then depend upon the issues drawn.

I think the judgment of the trial court should be reversed, as stated in the original opinion and the case remanded for further proceedings as here outlined.

. The opinion is technically correct in saying that Scarpa criticized the Board for not investigating all of the items of information he supplied, but the court misses the point that the crux of his complaint is that it did not consider any of them.

. These are:

(1) Length and seriousness of prior criminal records.

(2) Family history.

(3) Marital situation.

(4) Vocational and professional skills.

(5) Education.

(6) Physical condition.

(7) Living habits in a free community.

(8) Behavior and progress while incarcerated.

. Presumably the court meant it would take jurisdiction if the hearing did not measure up to its idea of what is a “full, fair hearing”.