USCA1 Opinion
June 7, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1902
JAMES J. WHITMAN,
Plaintiff, Appellant,
v.
DONALD R. VENTETUOLO,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Selya and Cyr, Circuit Judges.
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James J. Whitman on brief pro se.
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Michael B. Grant, Senior Legal Counsel, Rhode Island Department
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of Corrections, on brief for appellee.
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Per Curiam. James W. Whitman, a Rhode Island
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prisoner, filed a pro se complaint seeking declaratory relief
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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.
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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 Laws 42-56-25 (repealed June 1988).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
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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."
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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.
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Moran, 551 F. Supp. 294 (D.R.I. 1982),1 and that the
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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
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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
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1. Raso decided that the statute created two separate
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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
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blood donation is made, entitles an inmate to a reduction in
sentence. Id. Raso also decided that the statute required
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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
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of the opportunity to give blood, Raso concluded that there
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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.
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state remedies, 28 U.S.C. 2254(b). Preiser v. Rodriguez,
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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.
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McDonnell, 418 U.S. 539, 555 (1974). Nonetheless, even
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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
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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
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v. McDonnell, and found foreclosed under Preiser. Wolff, 418
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U.S. at 554, 561; Raso, 551 F. Supp. at 300. Raso viewed the
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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
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the complaint as a habeas petition and to require exhaustion.
Preiser, 411 U.S. at 500; see Young v. Kenny, 907 F.2d 874,
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876 (9th Cir. 1989) ("habeas must be the exclusive federal
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remedy not just when a state prisoner requests the
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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
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v. Solem, 823 F.2d 1256, 1257 (8th Cir. 1987) ( 1983
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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
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Cir. 1990), cert. denied, 498 U.S. 1127.
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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
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995, 999-1000 (2d Cir. 1987); Offet, 823 F.2d at 1258 & n.2;
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Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112,
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1120 (5th Cir. 1987); Harper v. Jeffries, 808 F.2d 281, 285
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(3d Cir. 1986); see also Guerro v. Mulhearn, 498 F.2d 1249,
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1252 (1st Cir. 1974); cf. Heck v. Humphrey, 997 F.2d 355,
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357-59 (7th Cir. 1993) ( 1983 suit was properly dismissed
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2. While we note that Granberry v. Greer, 481 U.S. 129, 135
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& n.7 (1987), would not require exhaustion of a
nonmeritorious habeas petition, Whitman's petition raises a
colorable federal claim.
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rather than stayed indefinitely), cert. granted, 62 U.S.L.W.
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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
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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
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dismisses the 1983 action. The action is remanded for
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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
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further proceedings.
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3. Alternatively, the district court may consider the
propriety of a conditional stay. See, e.g., Dewyer v. Davis,
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842 F. Supp. 1304, 1305 (W.D. Wash. 1993).
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