What will Wilkinson mean? Professor Berman wants to know: Will "Dotson ... bring a new wave of § 1983 litigation." I'd love to hear Norm's answer. Here's mine -- In a word, yes.
Before Wilkinson v. Dotson, parole procedures were almost unreviewable. The parole board usually stamped a big bold "DENIED" on the application. There wasn't much resource for the prisoner, other than to wait patiently for another hearing. Most people thought there was little to do. Indeed, the ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.
My reading of Wilkinson is that the full panoply of constitutional challenges are available to the prisoner. So long as the prisoner styles his action as one for limited declaratory and injunctive relief, the section 1983 action will lie. What do I mean by limited?
The prisoner can not ask that the parole board's findings be overturned. But he can now get a declaratory judgment from a judge stating that the parole procedures were invalid. And thus, the prisoner would be entitled to a new hearing. However, the judge can not rule: "Therefore, the prisoner should be granted parole [his sentence is reduced]." The issue is one of procedure.
The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons (holding that 1983 plaintiff must face imminent injury from unconstitutional practice to meet Article III case or controversy requirement), the prisoner could invalidate a parole board's procedures before facing the parole board.
Of course, please don't forget about the PLRA!
Of course, we can not read Wilkinson in a vacuum. The contours of the constitutional rights, if any, available before the parole board are yet to be drawn. But post-Wilkinson, lawyers as artists can start painting them.
A law student looking for a pro bono project should volunteer to help prisoner's file 1983 actions to ensure that parole procedures are constitutional. It will be rewarding and educational.