20 F.3d 636 (5th Cir. 1994), 92-3525, Welch v. Thompson

Docket Nº:92-3525.
Citation:20 F.3d 636
Party Name:Danny WELCH, Plaintiff-Appellant, v. Glenn THOMPSON, et al., Defendants-Appellees.
Case Date:May 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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20 F.3d 636 (5th Cir. 1994)

Danny WELCH, Plaintiff-Appellant,


Glenn THOMPSON, et al., Defendants-Appellees.

No. 92-3525.

United States Court of Appeals, Fifth Circuit

May 13, 1994

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Danny Welch, pro se.

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Andre Charles Castaing, LA Dept. of Justice, Risk Litigation Div., Baton Rouge, LA, for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge:

Today we decide whether the Louisiana statute establishing the state's prison work release program creates a protected liberty interest for eligible prisoners, the deprivation of which cannot be sustained without due process. The district court held that it does not. We affirm.

I. History of the Case

The plaintiff, Danny Welch, is a former prisoner of the Louisiana Department of Public Safety and Corrections ("the Department"). Welch brought an action under 42 U.S.C. Sec. 1983 against several Department officials at the Louisiana State Penitentiary ("LSP") where he was incarcerated until his release in October of 1990. 1 Welch alleged that he was denied due process and equal protection when he was excluded from the prison's work release program during the final six months of his term. Welch sought both punitive and compensatory damages and requested injunctive and declaratory relief. In addition, he asked the federal court to exercise pendent jurisdiction over his state law claims.

The magistrate judge to whom the case was assigned entertained both parties's motions for summary judgment. He recommended that Welch's suit be dismissed with prejudice on the federal claims and without prejudice on the state law claims. Specifically, the magistrate judge held that the Louisiana statute establishing the work release program did not create a liberty interest and, therefore, Welch was not entitled to, nor had he been denied, due process. The district court adopted the magistrate judge's recommendation and granted the defendants's motion for summary judgment. Welch appeals that judgment. 2

During the course of this appeal, the parties were instructed to file supplemental briefs addressing the following issue:

Whether the Louisiana work release provisions create a protected liberty interest in light of Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); and Kindred v. Spears, 894 F.2d 1477 (5th Cir.1990).

II. Facts

The facts of this case are not in dispute. Welch received a 25-year sentence after being convicted of attempted aggravated rape. Although his full-term date of release would have been October 8, 2001, he was released with good-time credit on October 2, 1990. On March 8 and March 30 of that year, Welch requested placement in Louisiana's work release program. 3 On April 6, 1990, Classification Officer Glenn Thompson, one of the defendants, denied the request on the ground that prisoners convicted of attempted aggravated rape were not eligible to participate in the work release program. Thompson denied Welch's second request as well, citing the same reason. 4

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To exhaust his administrative remedies, Welch took his complaint to the "second step" and reiterated his request. The second step response, prepared by Warden John Wittey and Director of Classification Joseph Lee, stated that "a recently implemented procedure at LSP will routinely consider all persons for work release six (6) months prior to release. Therefore, your request for remedy is granted in part."

The recently implemented procedure to which the letter alluded reflected a policy change at LSP. In a memorandum dated April 13, 1990, the Assistant Secretary of the Department explained to all Department wardens that an increase in the number of available beds for inmates on work release required a major policy shift. From the date of the memorandum forward, the Department would

change [its] philosophy from one of identifying the most appropriate, suitable inmates to one of "they'll be on the streets in six months anyway".

Accordingly, the memorandum overruled the previous categories of ineligibility and replaced them with an across-the-board eligibility for all prisoners in the last seven months of their terms. For Welch, it meant that attempted aggravated rape convicts were no longer barred from participating in the work release program.

Welch nonetheless remained unsatisfied. His new-found "eligibility" did not translate into an approval for one of the available work release beds. Welch appealed to the Secretary of the Department. In response, the Secretary explained that being considered for work release is not the same as being approved for work release. Welch again was denied work release but told that he would remain under active consideration. 5 Welch was released without being placed on work release.

III. Discussion

We review a grant of summary judgment de novo. In so doing, we apply the same standard applied by the district court. 6 A grant of summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." 7 Welch raises no factual issues.

Welch alleges that he was deprived of his right to participate in the Department's work release program without due process of law. The Department contends that the Due Process Clause is not implicated because no federal or state law creates a right to participate in a work release program. Because our exploration of La.R.S. 15:1111 locates no such liberty interest, we side with the Department.

We look to federal constitutional law to determine whether La.R.S. 15:1111 creates a legitimate claim or entitlement protected by the Due Process Clause of the Fourteenth Amendment. 8 Moreover, the due process analysis is the same in measuring the Louisiana statute against the strictures of the Fourteenth Amendment as it would be under the Fifth Amendment. 9 We analyze procedural due process questions using a two-step inquiry: First, we determine whether the state has deprived a person of a liberty or property interest; if there has been such a deprivation, we must determine whether the procedures relative to that deprivation were constitutionally sufficient. 10

In the prison context, a state creates a protected liberty interest when it limits official discretion in approving or denying an inmate's request or eligibility for a prison

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program. 11 If the prison officials have wide authority and discretion, usually no liberty interest is at stake. As a guidepost, we look for an "if-then" relationship; i.e., if certain criteria are met, then the outcome must follow. 12 This relationship will be reflected by "particularized standards or criteria that guide the State's decisionmakers". 13

This case turns on whether Louisiana created a liberty interest when it established the work release program. We start with the Supreme Court's important analytical observation in Kentucky v. Thompson:

The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court's judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations. 14

As a result, the cases addressing this issue vary widely because they turn on the language of the particular statute or regulation in question. 15

La.R.S. 15:1111, the Louisiana statute establishing the work release program, provides in part:

  1. The Department shall establish rules for the administration of the work release program and shall determine those inmates who may participate in the release program. Any convict sentenced to imprisonment at hard labor shall be eligible at any time during his sentence to participate in the work release program, subject to the provisions of this Part.

    * * * * * *

    I. Notwithstanding the provisions of Subsection B above or any other law to the contrary, any inmate who had been convicted of ... attempted aggravated rape ... shall be prohibited from participation in the work release program except during the last six months of their terms. 16

    The Department adopted several regulations carrying out this statute. Regulation 30-14(A), the basis for the Department's initial denial of Welch's request for work release, dictated that inmates convicted of attempted aggravated rape would not be eligible for work release, even in the last six months of their terms. In addition, Department Regulation 30-14(A) explicitly granted the Department wide discretion in selecting inmates for work release.

    As mentioned, the Department issued a memorandum overruling that regulation on April 13, 1990, one month after Welch first requested placement in the program. This superseding memorandum directed that all inmates within seven months of their release would be considered unless "blatantly ineligible" (emphasis in original). Although this memorandum did not define "blatantly ineligible", it provided some examples: prisoners with poor records, those convicted of heinous crimes, and those likely to evoke an adverse public reaction if placed in a community rehabilitation center. In sum...

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