Howard E. BRADFORD, Individually and on behalf of all others similarly situated, Appellant, v. Robert WEINSTEIN et al., Appellees; Levi JENKINS, on behalf of himself and all others similarly situated, Appellant, v. Walter D. TYLER et al., Appellees, 519 F.2d 728

WINTER, Circuit Judge: These two appeals present two important questions: Does the due process clause of the fourteenth amendment have any application to the conduct of proceedings by a parole board in states which undertake to grant paroles to certain prisoners before service in full of the sentences imposed upon them? If so, may the prisoners complain of a denial of due process in a suit under 42 U.S.C. § 1983, where the sole basis of their complaint is the manner in which the proceedings were conducted and there is no claim that they are entitled to immediate or even earlier release?

We think that both questions should be answered in the affirmative; but, for present purposes, we refrain from defining the effect of the application of the due process clause to the procedure for granting paroles.

No. 73 — 1751 is a class action in which the named plaintiffs, inmates of North Carolina correctional institutions, sued for themselves and others similarly situated under 42 U.S.C. § 1983, alleging that they were eligible to be considered for parole, that it had been denied them but that the proceedings were constitutionally defective because they were afforded no hearing before the parole board, they had no notice of or opportunity to comment upon adverse information to be relied on in the process of decision, and they were never advised of the reasons for denial of parole or the evidence upon which denial was based.

The district court denied class action status and it dismissed the individual claims, holding that the “Due Process Clause does not apply in procedures designed to determine suitability for parole.” We reverse and remand for further proceedings. In No. 73 — 1921, plaintiff, an inmate of a South Carolina prison, sued for himself and others similarly situated under 42 U.S.C. § 1983. He alleged that he had become eligible for parole under South Carolina law but that parole was denied him.

The proceedings were constitutionally defective, according to him, because of (1) the character of the evidence on which the parole board relied, (2) its failure to grant him a “full” and impartial hearing with advance notice of adverse information, (3) its failure to establish in advance of judgment the criteria of judgment, and (4) its failure to state reasons for denial of parole. The district court dismissed the complaint for failure to exhaust available state remedies. It was of the view that Preiser v.

Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1974), was applicable since plaintiffs’ ultimate goal was release on parole, and therefore plaintiffs’ exclusive remedy was to seek a writ of habeas corpus to which the exhaustion requirement of 28 U.S.C. § 2254(

b) applied. We again reverse and remand for further proceedings. I. It is important to note at the outset that in their pleadings, their briefs, and in their oral argument, plaintiffs make no claim that they are entitled to immediate release. Nor do they claim that they have a right to parole so that they would be released prior to the full service of their sentences less whatever credits the states of North Carolina and South Carolina may grant them.

They also make no claim that they have the right to inquire into the internal functioning of the parole boards or the adjudicatory processes by which paroles are granted or denied. Cf. United States Board of Parole v. Merhige, 487 F.2d 25 (4 Cir. 1973). The sole thrust of their complaints is a constitutional attack upon the procedures of the respective parole boards. As characterized by their counsel, the substantive question is not the right to parole but the right to procedural due process in the consideration of parole.

Since North Carolina and South Carolina have both adopted legislation affording even the prisoner serving the longest term upon conviction of even the most heinous crime the right to be considered eligible for release, usually upon one or more conditions, prior to service of the entire term imposed on him, we have no difficulty in concluding that the due process clause has some application to the proceedings in which it is determined whether that option shall be granted him.

This is so even though we fully recognize that no prisoner ever acquires a right to earlier release; at most he has a right only to be considered for earlier release and a privilege, which may be withheld, to be granted it. As Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1970), teaches: The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount.

But the range of interests protected by procedural due process is not infinite. (Footnote eliminated.) Both Roth and its companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1970), were concerned with the discharge of teachers employed by state-owned-and-operated educational institutions.

Both cases turned primarily on whether the teachers concerned had a “property” interest in their employment, although Roth contained instructive dicta about when a public-employed teacher’s “liberty” might be limited, as, for example, where he was discharged for a reason which impugned his good name, reputation, honor or integrity. 408 U.S. 573 — 74, 92 S.Ct. 2701. As a consequence, Roth and Sindermann did little to provide a definitive definition of “liberty” which we could easily apply and which would be dispositive of these appeals.

Roth did say that “liberty” protected by due process extends “beyond the sort of formal constraints imposed by the criminal process” and that the term is “not confined to mere freedom from bodily restraint” (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)). 408 U.S. at 572, 92 S.Ct. at 2706. We are of the view that plaintiffs’ right to consideration for parole eligibility is, at least, an aspect of liberty to which the protection of the due process clause extends.

Indeed, in North Carolina, which guarantees to each prisoner with respect to parole “a review and consideration of his case upon its merits,” the right may be one of “property.” This conclusion stems from three of the latest cases to consider the myriad of situations in which the due process clause is applicable: Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973); and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). All were cases in which “liberty” was at stake.

In Morris-sey, the due process clause was held applicable to proceedings having the potential of revocation of parole; in Gagnon, the proceedings having the potential of revocation of probation; and in Wolff, to disciplinary proceedings within a correctional institution. It is true that in Mor-rissey and Gagnon the continued actual liberty of the subject of the proceeding was at stake, but in Wolff, what was at stake was discipline — usually more onerous conditions of servitude — of one already confined. In the instant cases, there is no present liberty at stake.

There is only the right to be considered for parole and the inchoate privilege of some earlier future release if the parole board, in its discretion, concludes to grant it. The case is really the converse of Wolff. There, one who was confined was subjected to the risk of durance more vile; here, one who is confined is afforded the right of consideration of partial release from restraint and the privilege of partial release. The first is a right not to be restrained; the second, the privilege of release from restraint.

The distinction is without a difference, because the historical dichotomy of protection, de-' pending upon whether something is a right or a privilege, has now been eradicated. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Morrissey v. Brewer, 403 U.S. at 481, 92 S.Ct. 2593; Board of Regents v. Roth, 408 U.S. at 571, 92 S.Ct. 2701. Instead, the test of “[wjhether 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, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) . . . .” We think it would be a grievous loss for a prisoner by reason of a completely ex parte proceeding, and the resulting increased opportunity for committing error, to be denied parole and required to serve more of his term because the attention of the parole board was not called to data tending to indicate that parole should be granted, or for a prisoner whose incarceration has as its ultimate objective the prisoner’s rehabilitation to fail to know, let alone understand, why parole is denied him and hence what changes in attitudes, habits, and the like will be required if he is ever to be successful in obtaining parole, unless, of course, there is found to be some compelling state interest in why he should not be advised.

In the case of the latter, absent proof to the contrary, we would presume prejudice also in the fact that a denial of parole carries with it an adverse innuendo probably making a successive application for parole more difficult to sustain. It follows that since procedural due process was required to be afforded in Wolff, it must be afforded here. In sum, we think that the due process clause has application to parole eligibility proceedings. Our views are in accord with those expressed in Childs v. United States Board of Parole, 371 F.Supp. 1246 (D.D.C.1973); and United States ex. rel. Johnson v.

Chairman of New York State Board of Parole, 500 F.2d 925 (2 Cir. 1974), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289. We are not persuaded by those cases which have indicated a contrary conclusion. See, e. g., Menechino v. Oswald, 430 F.2d 403 (2 Cir. 1970), cert. den., 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971); Walker v. Oswald, 449 F.2d 481 (2 Cir. 1971); Scarpa v. United States Board of Parole, 477 F.2d 278 (5 Cir. 1973), vacated on other grounds, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973); Buchanan v. Clark, 446 F.2d 1379 (5 Cir. 1971); Barnes v.

United States, 8 Cir., 445 F.2d 260; Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10 Cir. 1968). It should be noted that each, except Scar-pa, was decided before Morrissey, Gag-non and Wolff, from which we take our cue. In Scarpa, what was the correct reading of Morrissey was identified in the main opinions of the in banc court as one of the principal points over which the division occurred. We think that in the light of Gagnon and Wolff, Morris-sey should receive the reading placed on it by Judges Tuttle, Wisdom and Goldberg, in dissent, in Scarpa.

Of course, to conclude that the due process clause has application to parole eligibility proceedings is only the beginning of the inquiry, because immediately and inevitably the next question is how much process is “due.” On this, we express no view. In these records, plaintiffs’ allegations have not been proved. More importantly, defendants’ practices and procedures with respect to parole eligibility proceedings have not been shown. Nor have defendants’ interests in preserving the practices and procedures currently followed been developed.

All of these must be known because “due process” is a flexible concept and the due process clause, where it is applicable, does not carry with it a fixed panoply of rights or a fixed mode of procedure. “ [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 Workers v.

McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Morrissey, 408 U.S. at 471; Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935. This is so because the due process clause only requires a “balance” between what may be conflicting interests to arrive at what is substantially fair and just. Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935. Hence, we leave to the district courts in the first instance the determination of what the due process clause requires in the instant cases after the district courts have conducted the requisite full evidentiary exploration. II.

We turn to the question of whether plaintiffs can litigate the effect of the application of the due process clause to the procedure for granting paroles in a suit under 42 U.S.C. § 1983. The argument that they cannot is erected on Preiser v. Rodriguez, supra, and so we begin by a consideration of that case.

In Preiser, the Supreme Court held that 28 U.S.C. § 2254(b), which requires an applicant for federal habeas first to exhaust “the remedies available in the courts of the State,” superseded the unqualified right to sue under 42 U.S.C. § 1983 to redress a state denial of a federal constitutional right where the substance of the suit is a challenge that is “just as close to the core of habeas corpus as an attack on the prisoner’s conviction.” The Court further explained that a suit is close to the “core of habeas corpus” if it challenges “directly to the constitutionality of [the prisoner’s] physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration.” 411 U.S. at 489, 93 S.Ct. at 1836.

In Preiser, the prisoners had alleged that they had been deprived of good-time credits as a disciplinary measure in administrative proceedings that were conducted with a lack of procedural due process. The specific relief sought was restoration of such credits. By the time their complaints were filed in the district court, such relief would have resulted in their immediate release. Accordingly, these suits were held to be within the core of habeas corpus.

The Court carefully indicated, however, that the result would have been the same had the practical effect of a grant of the requested relief been merely a shortening of the duration of the sentence rather than immediate release. The Court articulated as a rationale for its ruling the policy of avoiding needless friction in federal-state relationships caused by premature intervention by the federal courts in matters of intimate state concern. As we have said, plaintiffs disclaim that the purpose of their suits is to effect their release or to shorten the duration of their confinement.

Thus, we do not deem this is a case where the suits were close to the core of habeas corpus or “as close to the core of habeas corpus as an attack on the prisoner’s conviction,” as discussed and defined in Preiser. Notwithstanding the apparent inapplicability of Preiser, in the instant cases the defendants argue that the policy of federal-state comity is broad enough to apply to suits seeking redetermination of parole suitability under court mandated procedures affording procedural due process.

It is true that the Supreme Court spoke of the interest of a state in having an initial opportunity to correct difficulties and disputes which arise in the course of its relationship with its prisoners, and that the language employed was broad enough to cover any dispute between the state and its prisoners concerning the manner in which the state’s parole system was administered. See 411 U.S. at 475, 93 S.Ct. 1827. However, the Supreme Court also took pains to reaffirm its holdings in a series of prior cases that 42 U.S.C. § 1983 was a proper vehicle for challenge of certain kinds of prison conditions.

See, e. g., Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). See also Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (decided after Preiser). Thus, it appears that the exhaustion requirement under the habeas statute does not apply to all suits by prisoners seeking to challenge the manner in which the state penal system is administered. Only such suits as challenge the “constitutionality of . physical confinement itself and [seek] either immediate release from that confinement or the shortening of its duration” are subject to the exhaustion requirement.

Our view that these are not cases which fall within the Preiser doctrine finds support in the construction placed on the holding in Preiser in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (June 26, 1974). In Wolff, an inmate in a Nebraska prison brought a class action asserting that prison disciplinary proceedings violated due process.

The relief sought was threefold: (1) the restoration of good time, (2) that a plan be submitted by the prison authorities for a hearing procedure in connection with withholding and forfeiture of good time which comported with due process, and (3) damages for the deprivation of civil rights resulting from unconstitutional procedures. The claim was made that under Preiser the validity of the procedures for depriving prisoners of good-time credits could not be considered in a suit brought under 42 U.S.C. § 1983.

That claim was rejected, however, in the following language: The complaint in this case sought restoration of good-time credits, and the Court of Appeals correctly held this relief foreclosed under Preiser. But the complaint also sought damages; and Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings. 411 U.S., at 499, n. 14, 93 S.Ct. 1827.

Respondent’s damage claim was therefore properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time, for flagrant or serious misconduct. Such a declaratory judgment as a predicate to a damage award would not be barred by Preiser; and because under that case, only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.

We therefore conclude that it was proper for the Court of Appeals and the District Court to determine the validity of the procedures for revoking good-time credits and to fashion appropriate remedies for any constitutional violations ascertained, short of ordering the actual restoration of good time already cancelled. (Emphasis added; footnote eliminated) 418 U.S. at 554, 94 S.Ct. at 2974.

On the authority of Preiser and Wolff, we therefore hold that plaintiffs may litigate their due process objections to defendants’ parole eligibility proceedings in a suit under 42 U.S.C. § 1983 without the need for exhaustion under 28 U.S.C. § 2254(b). Accordingly, we reverse the judgments of the district courts and remand the cases for further proceedings consistent with the views we have expressed. Reversed and remanded. .

A few brief references to their brief proves the point: No claim is made that the particular sentence being served has expired or that appellant [Jenkins et al., adopted by Bradford] has a right to abbreviate it. The dispute goes only to the manner in which the State judges the prisoner’s potential for successful parole; there is no claim that the review process must or should lead to a specific outcome for a particular prisoner .

While it is doubtless the desire of appellant and others similarly situated to terminate their confinement as soon as possible, the Court is not being asked to rule on the duration of their confinement . :. If appellant prevails in his federal suit, the dates of his release will still depend upon the discretionary judgment of those State officials who pass on the issue of parole. . 3C G.S. N.C. § 148-58 (1974) provides that all prisoners shall be eligible to have their cases considered for parole after the service of (

a) a fourth of their sentence if the sentence is determinate, (

b) a fourth of their minimum sentence if the sentence is indeterminate, and (

c) ten years of a life sentence. The statute provides that it “shall [not] be construed as making mandatory the release of any prisoner on parole, but shall be construed as only guaranteeing to every prisoner a review and consideration of his case upon its merits.” (Emphasis added.) The statutes are silent about if and when a prisoner, denied parole when he first becomes eligible, is entitled to a subsequent review of his case. Presumably the regulations adopted under the authority of § 148-57 cover this matter, but they have not been pleaded.

In South Carolina, 11 Code of Laws S.C. § 55-611 (1973 Cum.Supp.) prescribes eligibility for parole after service of ten years for those sentenced to thirty years, more than thirty years, or life, and after service of the minimum indeterminate sentence for first offenders sentenced to an indeterminate term. The statute is silent about successive applications for parole, and it grants no general rule-making authority to the Probation, Parole and Pardon Board.

Yet, it would seem obvious that a prisoner who is unable to satisfy the criteria for parole contained in § 55-612 when he first becomes eligible may satisfy them at a later date. Presumably a later, successive application may be entertained. . Other authorities support our conclusion that present enjoyment of a protectable interest is not a prerequisite of due process. See Goldsmith v. Bd. of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (right of C.P.A. to practice before the Board of Tax Appeals); Willner v.

Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (admission to the bar); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (right to a tax exemption).