ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
HAUK, District Judge.
Plaintiff comes before the Court seeking declaratory and injunctive relief from the supervision of the Board of Parole. However, he has failed to submit any facts in support of his petition other than the meager statement that he received a sentence of ten years and has been released under the mandatory release provision of 18 U.S.C. § 4163 (1948). His complaint lacks information on such basic facts as:
(1) the offense for which he was convicted ;
(2) the date and place of his trial;
(3) the place of his incarceration; and
(4) the date of his release.
Pursuant to the policy of this Court, the petition in this case was permitted to be filed without prepayment of fees, subject to the subsequent order of this Court. 28 U.S.C. § 1915(a) (1948).
The petition alleges that Plaintiff was given a mandatory release under 18 U. S.C. § 4163,
§ 4164
prior to the expiration of his full sentence because of “good time” credit earned under 18 U. S.C. § 4161
and/or § 4162
. The basis
of Plaintiff’s claim is that since his release, the Defendant has been treating him as if he were on parole, purporting to regulate his conduct and threatening to return him to custody upon his violation of any of the rules and regulations of the Parole Board or upon his failure to fulfill the conditions of his mandatory release. It is the Plaintiff’s contention that this attempt by the Board of Parole to subject him to their supervision is unlawful and violates his constitutional rights since the Board is allegedly without authority to supervise him under the Mandatory release statute, 18 U.S.C. § 4163 (1948). Although Plaintiff seeks declaratory and injunctive relief, we choose to treat his complaint as a petition for habeas corpus since Plaintiff has, in effect, attacked the right of the Defendant to exercise its supervision over him.
Contrary to Plaintiff’s contention, the Board of Parole not only has the authority to supervise an individual under the mandatory release program, but in fact has sole and exclusive jurisdiction over any parolees concerning their paroles. Hiatt v. Compagna, 178 F.2d 42 (5th Cir. 1949). However, Plaintiff alleges that since he has been released under the mandatory release provision of 18 U.S.C. § 4163 he is in a different category than the typical parolee and therefore is not subject to the supervision of the Board of Parole. Plaintiff chooses to overlook the fact that 18 U.S.C. § 4164, the section under which Plaintiff was released, specifically provides that "a prisoner [released under this section] shall, upon release,
be deemed as if released on parole”
18 U.S. C. § 4164 (1948) (emphasis added).
A mandatory release under this section is identical in all respects to a parole release and subjects an individual coming within its purview to supervision by the Board of Parole until the expiration of his maximum term, less one hundred and eighty days. Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965).
The only difference between a usual parolee and a mandatory releasee is that supervision by the Board of Parole over the latter terminates one hundred and eighty days before the end of his maximum term. 18 U.S.C. § 4164 (1948); Cleaver v. Richardson, 298 F. Supp. 758 (C.D.Cal.1969).
It is well settled that the granting of parole by the United States Parole Board is not a matter of right, but is a matter of legislative grace. Arketa v. Wilson, 373 F.2d 582 (9th Cir. 1967); Richardson v. Rivers, 118 U.S. App.D.C. 333, 335 F.2d 996 (1964). And thus it has been held that an individual on parole is still considered to be under a form of custody. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962); Padilla v. Lynch, 398 F.2d 481 (9th Cir. 1968). Since the granting of parole does not affect the legal length of a prisoner’s term of commitment to custody, an individual who has been mandatorily released is subject to applicable statutes and the rules and regulations administered by the Board of Parole. For misconduct while conditionally released, up and until the last 180 days of his maximum term, he is subject to being retaken into custody on a warrant, having his previously earned good time forfeited, and being required to recommence service of his sentence “at a point where this had been left off when he was conditionally released.” Sprouse v. Settle, 274 F.2d 681, 684 (8th Cir. 1960); Williams v. Ciccone, 293 F. Supp. 271, 273 (W.D.Mo.1968). Plaintiff has also failed to consider either 18 U.S.C. § 4203(a)
which specifically authorizes the Board of Parole to set up certain terms and conditions of parole, including personal reports, until the expiration of the maximum term of the prisoner’s sentence, or 18 U.S.C. § 4205 (1948)
which authorizes the Board of Parole to issue a warrant and return to custody any individual who violates any of its rules.
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ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
HAUK, District Judge.
Plaintiff comes before the Court seeking declaratory and injunctive relief from the supervision of the Board of Parole. However, he has failed to submit any facts in support of his petition other than the meager statement that he received a sentence of ten years and has been released under the mandatory release provision of 18 U.S.C. § 4163 (1948). His complaint lacks information on such basic facts as:
(1) the offense for which he was convicted ;
(2) the date and place of his trial;
(3) the place of his incarceration; and
(4) the date of his release.
Pursuant to the policy of this Court, the petition in this case was permitted to be filed without prepayment of fees, subject to the subsequent order of this Court. 28 U.S.C. § 1915(a) (1948).
The petition alleges that Plaintiff was given a mandatory release under 18 U. S.C. § 4163,
§ 4164
prior to the expiration of his full sentence because of “good time” credit earned under 18 U. S.C. § 4161
and/or § 4162
. The basis
of Plaintiff’s claim is that since his release, the Defendant has been treating him as if he were on parole, purporting to regulate his conduct and threatening to return him to custody upon his violation of any of the rules and regulations of the Parole Board or upon his failure to fulfill the conditions of his mandatory release. It is the Plaintiff’s contention that this attempt by the Board of Parole to subject him to their supervision is unlawful and violates his constitutional rights since the Board is allegedly without authority to supervise him under the Mandatory release statute, 18 U.S.C. § 4163 (1948). Although Plaintiff seeks declaratory and injunctive relief, we choose to treat his complaint as a petition for habeas corpus since Plaintiff has, in effect, attacked the right of the Defendant to exercise its supervision over him.
Contrary to Plaintiff’s contention, the Board of Parole not only has the authority to supervise an individual under the mandatory release program, but in fact has sole and exclusive jurisdiction over any parolees concerning their paroles. Hiatt v. Compagna, 178 F.2d 42 (5th Cir. 1949). However, Plaintiff alleges that since he has been released under the mandatory release provision of 18 U.S.C. § 4163 he is in a different category than the typical parolee and therefore is not subject to the supervision of the Board of Parole. Plaintiff chooses to overlook the fact that 18 U.S.C. § 4164, the section under which Plaintiff was released, specifically provides that "a prisoner [released under this section] shall, upon release,
be deemed as if released on parole”
18 U.S. C. § 4164 (1948) (emphasis added).
A mandatory release under this section is identical in all respects to a parole release and subjects an individual coming within its purview to supervision by the Board of Parole until the expiration of his maximum term, less one hundred and eighty days. Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965).
The only difference between a usual parolee and a mandatory releasee is that supervision by the Board of Parole over the latter terminates one hundred and eighty days before the end of his maximum term. 18 U.S.C. § 4164 (1948); Cleaver v. Richardson, 298 F. Supp. 758 (C.D.Cal.1969).
It is well settled that the granting of parole by the United States Parole Board is not a matter of right, but is a matter of legislative grace. Arketa v. Wilson, 373 F.2d 582 (9th Cir. 1967); Richardson v. Rivers, 118 U.S. App.D.C. 333, 335 F.2d 996 (1964). And thus it has been held that an individual on parole is still considered to be under a form of custody. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962); Padilla v. Lynch, 398 F.2d 481 (9th Cir. 1968). Since the granting of parole does not affect the legal length of a prisoner’s term of commitment to custody, an individual who has been mandatorily released is subject to applicable statutes and the rules and regulations administered by the Board of Parole. For misconduct while conditionally released, up and until the last 180 days of his maximum term, he is subject to being retaken into custody on a warrant, having his previously earned good time forfeited, and being required to recommence service of his sentence “at a point where this had been left off when he was conditionally released.” Sprouse v. Settle, 274 F.2d 681, 684 (8th Cir. 1960); Williams v. Ciccone, 293 F. Supp. 271, 273 (W.D.Mo.1968). Plaintiff has also failed to consider either 18 U.S.C. § 4203(a)
which specifically authorizes the Board of Parole to set up certain terms and conditions of parole, including personal reports, until the expiration of the maximum term of the prisoner’s sentence, or 18 U.S.C. § 4205 (1948)
which authorizes the Board of Parole to issue a warrant and return to custody any individual who violates any of its rules.
Since the Plaintiff does not allege that he is within the last one hundred and eighty day period of the maximum term of his sentence, his supervi
sion and regulation by the Board of Parole is not only authorized, but is actually mandated by the provisions of 18 U. S.C. sections 4164, 4203, 4205 and the cases cited thereunder.
The law is so well settled, by statute and court decision, that the present demand made by Plaintiff for a declaration of rights and injunctive relief against the persons legally charged with supervising him is wholly without substance. No colorable argument is made that a constitutional violation is inherent in the statutory provisions requiring Plaintiff to file periodic personal reports (18 U.S.C. § 4203) or providing for the retaking of a parolee who violates the conditions of his parole. (18 U.S.C. § 4205). '
A petition which is utterly frivolous and without merit may be dismissed. 28 U.S.C. § 1915(d) (1959) Brown v. Schneckloth, 421 F.2d 1402 (9th Cir. 1970), cert, denied, 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970); Armstrong v. Brown, 387 F.2d 908 (9th Cir. 1967).
Accordingly, leave to proceed in forma pauperis is denied and the complaint is dismissed.