The Preiser Puzzle: Continued Frustrating Conflict between the Civil Rights and Habeas Corpus Remedies for State Prisoners

96 Pages Posted: 1 Jun 2014

See all articles by Martin A. Schwartz

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 1988


In Preiser v. Rodriguez, the United States Supreme Court attempted to resolve the potential overlap in federal remedies that are available to state prisoners. Preiser resolved that claims seeking immediate or speedier release from confinement could only be brought as habeas corpus proceedings, while other types of prisoner claims might be brought under section 1983. As a result, federal courts must often determine whether a state prisoner's claim may be asserted under section 1983 or only in a federal habeas corpus proceeding after state remedies have been exhausted.

The resolution of this issue is important, due to exhaustion requirements and differing legal provisions for the recoupment of attorneys’ fees. Due to the increase in civil rights filings by state prisoners, federal courts have been faced with the civil rights — habeas corpus issue in myriad and novel contexts. The lower federal courts, however, have received insufficient guidance from the United States Supreme Court. Preiser, the only Supreme Court decision to extensively analyze the issue, is ambiguous and leaves open more questions than it answers. The lower federal court decisions are not surprisingly in disarray, with jurists frequently bemoaning the difficulties and frustrations they encounter in attempting to solve Preiser puzzles.

This Article organizes and reviews the extensive decisional law that has developed during the fifteen years following Preiser, with the hope of adding clarity to this difficult area. It attempts to determine the preferred approach with regard to the many instances where the case law is conflicting. Part I commences with an overview of the section 1983 civil rights and federal habeas corpus remedies. Part II analyzes the distinctions between the two remedies. Part III undertakes an analysis of the Supreme Court precedent. Part IV discusses three fundamental issues that the Supreme Court had thus far failed to resolve. Part V discusses the relationship between the Preiser issue and Younger v. Harris abstention. Part VI categorizes various areas where the Preiser issue has arisen and analyzes the response of the lower federal courts. Part VII reviews the major procedural issues that arise out of the section 1983 — federal habeas corpus overlap, such as res judicata questions and statute of limitation problems. The Article concludes with observations concerning the vast body of law in this area.

Keywords: Preiser v. Rodriguez, U.S. Supreme Court, state prisoners' claims, Section 1983 litigation, habeas corpus proceedings, exhaustion requirements, attorneys' fees, Younger v. Harris, res judicata, statute of limitations

Suggested Citation

Schwartz, Martin A., The Preiser Puzzle: Continued Frustrating Conflict between the Civil Rights and Habeas Corpus Remedies for State Prisoners (1988). DePaul Law Review, Vol. 37, p. 85, 1988, Touro Law Center Legal Studies Research Paper, Available at SSRN:

Martin A. Schwartz (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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