Sultenfuss v. Snow, 91-8002

• Decision Date: 03 November 1993
• Docket Number: No. 91-8002,91-8002
• Citation: 7 F.3d 1543
• Parties: Stephen SULTENFUSS, Plaintiff-Appellant, Charles McMulling, et al., Plaintiffs, v. Wayne SNOW, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

7 F.3d 1543

Stephen SULTENFUSS, Plaintiff-Appellant Charles McMulling, et al., Plaintiffs, v. Wayne SNOW, Jr., James T. Morris, Mobley Howell, Michael H Wing, Bettye O. Hutchings, Michael J. Bowers Defendants-Appellees.

No. 91-8002.

United States Court of Appeals Eleventh Circuit.

Nov. 3, 1993.

Jill A. Pryor, Bondurant Mixon & Elmore, Atlanta, GA, for plaintiff-appellant.

Terry L. Long, Atty. Gen., Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, Circuit Judge, CLARK, Senior Circuit Judge, and PITTMAN ^*, Senior District Judge.

CLARK, Senior Circuit Judge:

This litigation was initiated by appellant Stephen G. Sultenfuss and several other Georgia state inmates alleging that the chairman and members of the Georgia Board of Pardons and Paroles had violated the inmates' constitutional rights by departing from the parole guideline scheme in setting parole dates. On a previous appeal, we remanded this case to the district court to determine whether the current Georgia parole system, as modified following the 1980 legislation mandating adoption and application of a parole guideline system, gives rise to a liberty interest in parole. ¹ On remand, the district court concluded that the current system does not create a liberty interest in parole. We disagree. Having carefully reviewed the Georgia statutes and guidelines governing parole, we hold that the current Georgia parole system creates a liberty interest protected by the due process clause. Accordingly, we reverse the district court's decision and remand the case for further proceedings.

I. BACKGROUND FACTS

Appellant Stephen G. Sultenfuss was convicted of two separate drug charges. He received two sentences, the longest of which is 15 years, calculated from August 24, 1986. This sentence expires on August 23, 2001. Applying the Georgia Parole Decision Guidelines, the Georgia Board of Pardons and Paroles assigned Sultenfuss a Parole Success Likelihood Score of 11, which is classified as "good," and a Crime Severity Level of II, on a scale of VII. The Parole Decision Grid indicated that an inmate with a Parole Success Likelihood Score of 11 and a Crime Severity Level of II should serve 10 months in prison. Nevertheless, in Sultenfuss's case, the Parole Board departed from the Grid recommendation and assigned Sultenfuss a 62-month incarceration period before parole.

Sultenfuss, along with several other Georgia inmates, filed this action pursuant to 42 U.S.C. § 1983 alleging that the Parole Board had violated their rights under the due process and equal protection clauses by departing from the Parole Decision Grid recommendation in setting their parole release dates. The inmates sought both injunctive and declaratory relief and compensatory damages. The district court sua sponte dismissed the inmates' complaint as frivolous pursuant to 28 U.S.C. § 1915(d). Relying on Slocum v. Georgia State Board of Pardons and Paroles, ² the district court held that the Georgia parole system did not create a liberty interest in parole protected by the due process clause and, therefore, that the inmate's due process claim was frivolous. As to the equal protection claim, the district court determined that the inmates had failed to state a claim upon which relief could be granted because they had failed to allege that other prisoners similarly situated had been granted parole. ³ Only Sultenfuss perfected an appeal from the district court's sua sponte dismissal of the complaint.

On appeal, we affirmed the district court's dismissal of Sultenfuss's claim for compensatory damages, but reversed the district court's dismissal of Sultenfuss's complaint for equitable relief. ⁴ We acknowledged that Slocum held that the extant Georgia statutes governing parole did not create a liberty interest in parole, but we noted that Slocum addressed parole decisions made under the Georgia system as it existed in 1979 and 1980 and that, since that time, the Georgia parole system had been revised significantly. We concluded that the changes to the Georgia parole system were sufficiently significant to raise an arguable question of law as to whether the new system created a liberty interest in parole. Accordingly, we remanded the case for further proceedings.

On remand, the district court appointed counsel to represent Sultenfuss, and counsel filed a restated complaint on Sultenfuss's behalf. The State answered and filed a motion for summary judgment, arguing that the current Georgia parole system does not create a liberty interest in parole. The district court agreed and granted the motion for summary judgment. ⁵ Sultenfuss filed this appeal.

II. DISCUSSION

A. Creation of a Liberty Interest

In Greenholtz v. Nebraska Penal Inmates, ⁶ the Supreme Court held that the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. The Supreme Court went on to hold, however, that a state statute governing parole release may create an "expectation of parole" protected by the due process clause. ⁷ Since Greenholtz, the Supreme Court has on several occasions addressed whether state laws and regulations create an enforceable liberty interest in the prison setting. For example, in Connecticut Board of Pardons v. Dumschat, ⁸ the Supreme Court held that the Connecticut statute governing commutation of prison sentences does not create a liberty interest; in so holding, the Court said: "The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board." ⁹ Similarly, in Olim v. Wakinekona, ¹⁰ the Supreme Court held that Hawaii's prison regulations governing prison transfers do not create a liberty interest:

The[ ] cases demonstrate that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." If the decisionmaker is not "required to base its decisions on objective and defined criteria," but instead "can deny the requested relief for any constitutionally permissible reason or for no reason at all," the State has not created a constitutionally protected liberty interest.

Hawaii's prison regulations place no substantive limitations on official discretion and thus create no liberty interest entitled to protection under the Due Process Clause. ¹¹

On the other hand, in Board of Pardons v. Allen, ¹² the Supreme Court determined that the Montana parole statute does create a liberty interest in parole. This statute provides, in pertinent part, that the parole board " 'shall release on parole [any inmate] when in [the board's] opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.' " ¹³ In reaching its conclusion that this statute creates a liberty interest, the Court focused on the statute's mandatory language: "Significantly, the Montana statute ... uses mandatory language ('shall') to 'creat[e] a presumption that parole release will be granted' when the designated findings are made." ¹⁴ The Court recognized that the Montana statute grants the parole board very broad discretion, but nevertheless held that this discretion was not incompatible with the existence of a liberty interest. The Court explained:

The Court thus held in Greenholtz that the presence of general and broad release criteria--delegating significant discretion to the decisionmaker--did not deprive the prisoner of the liberty interest in parole release created by the Nebraska statute. In essence, the Court made a distinction between two entirely distinct uses of the term discretion. In one sense of the word, an official has discretion when he or she "is simply not bound by standards set by the authority in question." R. Dworkin, Taking Rights Seriously 32 (1977). In this sense, officials who have been told to parole whomever they wish have discretion. In Greenholtz, the Court determined that a scheme awarding officials this type of discretion does not create a liberty interest in parole release. But the term discretion may instead signify that "an official must use judgment in applying the standards set him [or her] by authority"; in other words, an official has discretion when the standards set by a statutory or regulatory scheme "cannot be applied mechanically." Dworkin, supra, at 31, 32; see also id., at 69 ("[W]e say that a man has discretion if his duty is defined by standards that reasonable [people] can interpret in different ways"). The Court determined in Greenholtz that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist. ¹⁵

Thus, even a grant of broad discretion may give rise to a liberty interest if the decisionmaker is required to apply "standards set him [or her] by authority." For example, in Hewitt v. Helms, ¹⁶ the Supreme Court held that Pennsylvania prison regulations governing confinement in administrative segregation create a liberty interest in remaining in the general prison population. In so holding, the Court focused on the required application of certain procedural guidelines:

[I]n this case the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed, see n. 6 supra, and that administrative segregation will not occur absent specified substantive predicates, viz. "the need for control," or "the threat of a serious disturbance." ... [O]n balance we are persuaded that the repeated use of explicitly mandatory language in connection with...