# Micklus, Gregory Bernard v. Carlson, Norman, Director, U. S. Bureau of Prisons Fenton, Charles, Warden, U.S.P. Lewisburg, Pa

> Court of Appeals for the Third Circuit · September 3, 1980 · 632 F.2d 227

URL: https://www.frixlaw.com/law-library/cases/9467162

## Case

- **Full name:** MICKLUS, Gregory Bernard, Appellant, v. CARLSON, Norman, Director, U. S. Bureau of Prisons; Fenton, Charles, Warden, U.S.P. Lewisburg, Pa
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 3, 1980
- **Citations:** 632 F.2d 227; 30 Fed. R. Serv. 2d 359; 1980 U.S. App. LEXIS 14372
- **Precedential status:** Published
- **Opinion:** Dissent by Seitz
- **Judges:** Seitz, Rosenn, Higginbotham
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467162

## How later opinions describe it (automated extraction)

- noting that the parole commission “cannot be totally arbitrary, [but] may nevertheless revoke [his] parole status if at any time ... [it] is of the opinion that [he] will be benefited by further treatment in an institution or other facility” (quotation marks omitted)
- rejecting the argument that once the defendant was served in his official capacity, he was properly before the court in both his individual and official capacities
- rejecting argument that once a defendant was served in his official capacity, he was properly before the court in both his individual and official capacities

## Opinion text

SEITZ, Chief Judge,
dissenting in part.
I agree with the majority that the Youth Corrections Act (YCA) does not create an implied cause of action in favor of an offender sentenced pursuant to its terms but that appellant has a cause of action for damages under the due process clause of the fifth amendment for the violations of the YCA alleged in this case. I also agree that the district court did not obtain personal jurisdiction over appellee Carlson because of insufficient service of process. I part company with the majority in its conclusion that appellant’s claims for declaratory and injunctive relief are not moot.
Although appellant has been granted parole on the YCA sentence and now is serving only an adult sentence, the majority concludes that his claims for declaratory and injunctive relief based on alleged violations of the YCA are not moot because he faces a realistic possibility of parole revocation and reincarceration under the YCA sentence. Even accepting the premise that the low standard for reincarceration incorporated in 18 U.S.C.A. § 5020 (West Supp. 1980) creates a “real threat” of appellant’s future confinement under the YCA sentence, I nevertheless think that appellant’s claims are moot unless there is a real and immediate possibility that such incarceration again will violate the YCA.
This court recently has emphasized that the YCA imposes on federal prison authorities a mandatory duty to segregate offenders sentenced under its terms from adult prisoners and to afford such offenders treatment according to their needs. See Thompson v. Carlson, 624 F.2d 415, 420 (3d Cir. 1980); United States ex rel. Dancy v. Arnold, 572 F.2d 107, 113-14 (3d Cir. 1978); 18 U.S.C. § 5011 (1976). Moreover, prior to the filing of the complaint in this case, the United States District Court for the Middle District of Pennsylvania concluded that appellant’s confinement violated the YCA. It therefore granted appellant’s petition for habeas corpus and ordered that he be transferred to a facility where he would receive treatment and be segregated from adult prisoners. 1
Given these rulings, I do not think that the possibility that appellant again might be denied the treatment and segregation required by the YCA is sufficiently immediate and real to render this a live controversy. This possibility is further diminished by the fact that appellant may never be confined under the YCA again.
Nor is my conclusion undercut by appellees’ prior placement of appellant in adult prisons. It was not clear that segregation of offenders sentenced under the YCA was mandatory under § 5011 until our 1978 decision in Dancy. Although appellant also re *242 mained in an adult prison for several months after Dancy, almost all of this confinement was pursuant to a stay pending appeal from the district court’s grant of appellant’s habeas corpus petition. Under these circumstances, I do not view appellees’ prior conduct as in any way indicating that appellant will again be denied treatment and segregation if his parole is revoked and he is reincarcerated under the YCA. Accordingly, I would hold that appellant’s claims for declaratory and injunctive relief are moot and would affirm the district court on this issue.
. Although the government’s appeal from this order was dismissed as moot by this court after plaintiff’s parole, the district court’s ruling has put defendants on notice of the YCA’s requirements of treatment and segregation in this particular case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467162. Public record. Not legal advice.