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

JOHN R. BROWN, Chief Judge,

concurring :

Although I had entertained a view requiring reversal, I now join in an affirmance largely on the basis of the factors emphasized in Judge Clark’s concurrence. To it I would add that the whole complaint reflected that petitioner was demanding that within about three months of his arrival at the Federal prison, the parole authorities had to make all of the investigations and determinations which might, on Judge Tuttle’s analysis, later be required. The complaint, read with the rosy Conley glasses, asserted that it was an abuse of administrative discretion not to set all these wheels then and there in motion.

I think, on the other hand, the District Court was entitled to say that any genuine realistic plan for rehabilitation of a prisoner, whose record included the character of convictions here, should require that the prisoner at least be around for some observation, study and evaluation by prison authorities. Indeed that is the objective behind a § 4208(a) (2) indeterminative sentence.

It is easy to say that some character of factual hearing must be had to determine whether these conclusory allegations are supportable. But to apply mechanically procedural rules appropriate to an ordinary damage suit to the situation of prisoner parole problems imperils the parole structure and its beneficent aims. With unrestricted access to the nearest Federal Court and the ease with which denial of broad constitutional claims can be asserted, the prison-parole authorities might have to answer almost daily the complaints of numberless prisoners dissatisfied with the progress or lack of progress with their current requests. Federal Courts must, of course, be open to prisoners. But unless access to a Court is to become an illusion from the judicial system being powerless to act from the sheer volume of such claims, we must be certain when importuned to interfere that the complaint realistically read shows arbitrary action constituting abuse of administrative discretion.

The complaint here fails to meet that test.

*284CLARK, Circuit Judge,

with whom SIMPSON, Circuit Judge, joins, concurring:

The en banc majority does not disagree with Judge Tuttle’s dissenting observation that parole hearings provided to prisoners must comply with the regulations promulgated by the Board, nor does the majority disagree with the Conley v. Gibson principle that the petitioner’s complaint, which stands unchallenged in this dismissal proceeding, governs the application of the law to this case. The difference between the two views is basically factual and to me reconciliation lies in what the whole complaint asserted. A reading of the extensive quotations from Scarpa’s pleading which asserted the fact background of his case (see the original panel opinion in this case, 468 F.2d 31) makes it crystal clear that the Board had before it not just Scarpa’s criminal record, but also a great deal of other information provided by Scarpa in his application for parole and by the Board’s investigative forces. Without reservation, I concur in Judge Gewin’s opinion for the en banc court.