
USCA1 Opinion

	




        June 7, 1994            [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1902                                   JAMES J. WHITMAN,                                Plaintiff, Appellant,                                          v.                                DONALD R. VENTETUOLO,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                       Torruella, Selya and Cyr, Circuit Judges.                                                 ______________                                 ____________________            James J. Whitman on brief pro se.            ________________            Michael B.  Grant, Senior Legal  Counsel, Rhode Island  Department            _________________        of Corrections, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   James  W.  Whitman,  a Rhode  Island                      ___________            prisoner, filed a pro se complaint seeking declaratory relief                              ___ __            and  damages pursuant to 42  U.S.C.   1983.   Whitman claimed            that from 1979 to 1988 prison officials had repeatedly denied            him the opportunity to donate  blood in exchange for sentence            reduction under a  state statute  then in effect.   See  R.I.                                                                ___            Gen.  Laws    42-56-25 (repealed  June 1988).    The district            court,    endorsing    a   magistrate-judge's    report   and            recommendation, dismissed the complaint for failure  to state            a  claim  because, at  its  core,  the complaint  essentially            sought sentence reduction to  which money damages were merely            subordinate, and,  as such, presented only unexhausted habeas            claims.  With the modification discussed below, we affirm for            substantially the reasons stated in the magistrate's June 15,            1993  report  and  recommendation,  to  which  we  add  these            comments.                      To begin,  Whitman's complaint for  relief does not            explicitly request  a reduction of sentence;  rather, he asks            to be  granted an "accreditation," i.e.,  a recognition, that                                               ____            but  for defendant's  conduct, he  would otherwise  have been            entitled  to 320  days of  good-time.   In addition,  Whitman            seeks $150  per day for each  day he would have  had deducted            from  his sentence  had defendant  not deprived  him "of  the            opportunity to  donate blood  in exchange for  a commensurate            sentence reduction."                                         -2-                      Although  Whitman does not go so far as to say that            he  wants neither  sentence reduction  nor early  release, he            insists  that the  relief  sought is  solely  to redress  his            deprivation of  the due process rights recognized  in Raso v.                                                                  ____            Moran,  551  F.  Supp.  294  (D.R.I.  1982),1  and  that  the            _____            district court mistakenly construed his complaint as a habeas            corpus action solely  because Whitman had phrased part of the            relief sought as sentence related.  Whitman contends that the                                      _______            designated  320-day good-time loss  was simply to demonstrate            for purposes of  calculating damages how  much time he  could            have  earned if  he had  not been  denied the  opportunity to            donate blood.                      To  the extent  that Whitman  seeks to  shorten the            duration  of his  confinement, the  district court  correctly            found  that such relief is cognizable  only in federal habeas            corpus, with  its  concomitant requirement  of exhaustion  of                                            ____________________            1.    Raso  decided  that the  statute  created  two separate                  ____            constitutionally protected liberty interests.  The first, and            the one  about which Whitman complains, is that "inmates have            a  legitimate  expectation  that   they  will  be  given  the            opportunity to donate blood up to four times a year in return            for a  ten-day sentence reduction absent disqualification for            health reasons."   Id. at 299.  The second,  triggered once a                               ___            blood  donation is made, entitles an inmate to a reduction in            sentence.  Id.   Raso also decided that the  statute required                       ___   ____            prison officials to establish and administer a blood donation            program in  which all  qualified  inmates could  participate.            Id. at 298.   To protect an inmate from  wrongful deprivation            ___            of the opportunity  to give blood, Raso  concluded that there                                               ____            must  be  notice   and  a  statement   of  reasons  for   any            disqualification as well as procedures by which inmates could            challenge  the  accuracy  of  that  determination  and submit            written evidence of their health status.  Id. at 301.                                                      __                                         -3-            state remedies, 28 U.S.C.    2254(b).  Preiser  v. Rodriguez,                                                   _______     _________            411 U.S.  475,  500 (1973).    Whitman, however,  also  seeks            declaratory relief and an award  of monetary damages to which            exhaustion would not  apply.  Id.  at 494; see also  Wolff v.                                          ___          ___ ____  _____            McDonnell,  418  U.S. 539,  555  (1974).   Nonetheless,  even            _________            though  Whitman's  complaint  does   not  seek  release  from            custody,  the  adjudication of  his    1983  claims,  at this            juncture, would invariably require a federal court to address            the question  of  the constitutionality  of state  procedures            utilized  to  determine  eligibility  for  the  blood   donor            program.   The "core"  of Whitman's complaint  is the alleged            denial  of  the  constitutionally  protected  opportunity  to            reduce  his sentence  by donating blood.   Raso,  in deciding                                                       ____            what process was  due before that opportunity  could be taken            away, observed  that such a denial  was substantially similar            to the  restoration of good-time credits  considered in Wolff                                                                    _____            v. McDonnell, and found foreclosed under Preiser.  Wolff, 418               _________                             _______   _____            U.S. at 554, 561; Raso, 551 F. Supp. at 300.  Raso viewed the                              ____                        ____            statutory right to participate in the  blood donor program as            one  that  "directly  affects  the duration  of  an  inmate's            sentence  and possibly  affects  the actual  duration of  his            confinement."  Id.  To that extent, it was proper to construe                           ___            the complaint as a habeas petition and to require exhaustion.            Preiser, 411 U.S. at 500;  see Young v. Kenny, 907  F.2d 874,            _______                    ___ _____    _____            876 (9th Cir.  1989) ("habeas must  be the exclusive  federal                                         -4-            remedy  not   just  when   a  state  prisoner   requests  the                                                            ________            invalidation or  reduction of his sentence,  but whenever the            requested relief  requires as its  predicate a  determination            that a sentence being served is invalid or unconstitutionally            long") (collecting cases), cert. denied, 498 U.S. 1127; Offet                                       _____ ______                 _____            v.  Solem,  823  F.2d 1256,  1257  (8th  Cir.  1987) (   1983                _____            complaint  for  declaratory  relief  and  damages  indirectly            attacks the length of confinement and directly implicates the            policies  of  federal-state  comity   requiring  exhaustion).            Whitman's  request  to  amend  would not  yield  a  different            result.   See Bressman v.  Farrier, 900 F.2d  1305, 1307 (8th                      ___ ________     _______            Cir. 1990), cert. denied, 498 U.S. 1127.                        _____ ______                      Ordinarily, where, as here,  the complaint could be            read  as invoking both a civil rights and habeas remedy,2 the            district  court should  stay  rather than  dismiss the  suit.            See, e.g., Young,  907 F.2d at 878; Mack v. Varelas, 835 F.2d            ___  ____  _____                    ____    _______            995, 999-1000 (2d Cir. 1987); Offet, 823  F.2d at 1258 & n.2;                                          _____            Serio v. Members of La. State Bd. of Pardons, 821 F.2d  1112,            _____    ___________________________________            1120 (5th Cir. 1987);  Harper v. Jeffries, 808 F.2d  281, 285                                   ______    ________            (3d Cir. 1986); see  also Guerro v. Mulhearn, 498  F.2d 1249,                            ___  ____ ______    ________            1252 (1st Cir.  1974); cf.  Heck v. Humphrey,  997 F.2d  355,                                   ___  ____    ________            357-59 (7th Cir.  1993) (  1983  suit was properly  dismissed                                            ____________________            2.  While  we note that Granberry v. Greer, 481 U.S. 129, 135                                    _________    _____            &   n.7   (1987),  would   not   require   exhaustion  of   a            nonmeritorious  habeas petition, Whitman's  petition raises a            colorable federal claim.                                         -5-            rather than stayed indefinitely), cert.  granted, 62 U.S.L.W.                                              _____  _______            3470  (1994).    Thus,  the district  court  should  consider            staying Whitman's    1983 action  until the state  courts are            given   the   opportunity    to   resolve   allegations    of            constitutional  error  involving  the  administration  of the            inmate early release blood donor program under R.I. Gen. Laws              42-56-25.                      The district court judgment is  affirmed insofar as                                                      ________            it directs  exhaustion of state remedies  relating to alleged            violations  of any  liberty interests  inherent in  R.I. Gen.            Laws    42-56-25;  the judgment  is  reversed insofar  as  it                                                 ________            dismisses  the    1983 action.   The  action is  remanded for                                                             ________            further proceedings consistent with this opinion.  Unless the            district court  determines that the    1983 claims  are time-            barred, or that a dismissal without prejudice is  adequate to            preserve them,  further district  court proceedings on  the              1983  claims should  be  stayed pending  exhaustion of  state            remedies.3                      Affirmed in  part; reversed  in part; remanded  for                      ________ __  ____  ________  __ ____  ________  ___            further proceedings.            _______ ___________                                            ____________________            3.  Alternatively,  the  district   court  may  consider  the            propriety of a conditional stay.  See, e.g., Dewyer v. Davis,                                              ___  ____  ______    _____            842 F. Supp. 1304, 1305 (W.D. Wash. 1993).                                         -6-
