Brandon v. District of Columbia Bd. of Parole

• Decision Date: 28 March 1986
• Docket Number: Civ. A. No. 83-0007.
• Citation: 631 F. Supp. 435
• Parties: Roosevelt BRANDON, Plaintiff, v. DISTRICT OF COLUMBIA BOARD OF PAROLE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

631 F. Supp. 435

Roosevelt BRANDON, Plaintiff, v. DISTRICT OF COLUMBIA BOARD OF PAROLE, et al., Defendants.

Civ. A. No. 83-0007.

United States District Court, District of Columbia.

March 28, 1986.

COPYRIGHT MATERIAL OMITTED

John H. Suda, Acting Corp. Counsel, D.C., Martin L. Grossman, Deputy Corp. Counsel, D.C., Civil Div., Cary D. Pollak, Chief, General Litigation Section III, Civil Div., and Karen Dworkin by Kathleen A. Carey, Asst. Corp. Counsel, D.C., Washington, D.C., for defendants.

Peter A. Barnes and Donna E. Patterson, Hughes, Hubbard & Reed, Washington, D.C., for plaintiff.

OPINION AND ORDER

CHARLES R. RICHEY, District Judge.

INTRODUCTION

The Court has before it cross motions for summary judgment and the oppositions and replies thereto. Plaintiff in the above-entitled action is a prisoner at Lorton Reformatory presently serving a ten to thirty year consecutive sentence for a charge of rape while armed. Prior to this, he was sentenced to a term of ten to thirty years for second degree murder and served nine years before being paroled.

Originally, plaintiff filed his complaint pro se. Another deceased member of this Court dismissed the complaint sua sponte. The Court of Appeals, 734 F.2d 56 (D.C.Cir. 1984), reversed the sua sponte dismissal and remanded the case to this Court. Counsel was appointed pro bono publico, and an amended complaint and petition for habeas corpus was subsequently filed.

Plaintiff alleges in his Amended Complaint and Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 (1982) that defendants violated his Due Process and Equal Protection Rights under the Fifth Amendment of the Constitution. Plaintiff further contends that the actions of the Parole Board violated 42 U.S.C. § 1983, and, prior to the application of 42 U.S.C. § 1983 to the District of Columbia, the principles set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Plaintiff requests that the Court (1) declare that defendants violated his Due Process and Equal Protection Rights; (2) order the defendants to amend the plaintiff's Certificate of Parole; (3) award general damages of $200.00; and (4) award attorney's fees and costs.

Upon consideration of the briefs, argument of counsel, the administrative record, the declarations, and depositions in evidence, the Court finds that it must grant defendants' Motion for Summary Judgment and deny plaintiff's Cross Motion. In so doing, the Court, with the consent of both sides, has resolved any issues of fact in accordance with the agreement of the attorneys at the Summary Judgment hearing on October 2, 1985.

BACKGROUND

Plaintiff, Roosevelt Brandon, pled guilty to second degree murder on January 20, 1966. In April of that year, he was sentenced to ten to thirty years in prison. After serving nearly nine years at Lorton Reformatory, the plaintiff was paroled in April, 1975. Seven months later, plaintiff was arrested and charged with rape while armed. Subsequently, his parole was revoked in February of 1976; he was sentenced to ten to thirty years in April, 1976. This sentence was to run consecutively to his prior sentence for second degree murder.

In November, 1976, the plaintiff was scheduled for a parole hearing. However, the Parole Board continued his hearing date because his presentence report was unavailable. In January, 1977, the Board of Parole held a hearing and denied reparole. Again, in October, 1977, reparole was denied, but this time the Board of Parole requested a Forensic Psychiatric Office evaluation. According to the Chairperson of the Board of Parole, it was the Board's policy during these years to require a Forensic Psychiatric Office report for any person, such as the plaintiff, convicted of a violent crime. Just Deposition at 59. In May, 1978, plaintiff had a single consultation with the staff clinical psychologist who determined that he needed more data to assess the plaintiff's psychiatric needs.

In February, 1979, the Board held another reparole hearing. However, this hearing was continued pending the completion of the psychiatric report requested in October, 1977. In April, 1979, the plaintiff was examined by a psychiatrist, Dr. Mould, who referred the plaintiff to the psychiatric clinic. The plaintiff began psychotherapy four months later.

In November, 1979, the Classification Board at the District of Columbia Correctional Complex recommended that the plaintiff be reparoled to his consecutive term because of the gains he had made in the program and in his psychiatric counselling. On February 1, 1980, the plaintiff was reparoled to his consecutive sentence.

PLAINTIFF MUST HAVE A PROTECTED LIBERTY INTEREST FOR DUE PROCESS TO APPLY

Due process analysis begins with an inquiry as to whether the government's action deprived the plaintiff of a constitutionally protected interest in life, liberty, or property. Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 843 (9th Cir. 1985); see U.S. Const. amend. V. Only after the plaintiff has shown that a constitutionally protected interest is involved will a court examine what process was due. It is axiomatic that due process is not implicated every time an individual suffers a "grievous loss" because of some government action. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), quoted in Baumann, 754 F.2d at 843. Moreover, an individual must have more than an unilateral expection; he must have a "legitimate claim to entitlement." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), quoted in Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Here the plaintiff must establish that he has a protected liberty interest in reparole for the Due Process Clause to apply. For the reasons set forth below the Court finds that the plaintiff does not have a protected liberty interest.

PLAINTIFF DOES NOT HAVE A LIBERTY INTEREST IN REPAROLE

Liberty interests may arise under the Constitution or through state statutes or regulations imposing "substantive limitations" on official discretion. Baumann, 754 F.2d at 844; see Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465-67, 101 S.Ct. 2460, 2464-66, 69 L.Ed.2d 158 (1981). As the Supreme Court has stated unequivocally in Greenholtz, "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Since the Constitution does not afford the plaintiff a liberty interest in parole or reparole, he must look to the statutes and regulations of the District of Columbia for such an interest.

A state may create a liberty interest in parole under certain conditions. See Greenholtz, 442 U.S. at 11-12, 99 S.Ct. at 2105-06. However, the mere existence of a parole system and the possibility of parole are not enough to implicate due process considerations. See id. at 11, 99 S.Ct. at 2105-06; Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir.1979). Cf. Dumschat, 452 U.S. at 467, 101 S.Ct. at 2465-66. To establish that he had a liberty interest in reparole, the plaintiff must show that the District of Columbia Board of Parole was required to follow "particularized standards or criteria" in its decisionmaking. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) (quoting Dumschat, 452 U.S. at 467, 101 S.Ct. at 2466); Baumann, 754 F.2d at 844

In Greenholtz, the Supreme Court held that the Nebraska state statute created a liberty interest in parole. That statute provided that the parole board "shall" grant parole "unless" the board found that it should be denied for one of the four reasons enumerated in the statute. Neb. Rev.Stat. § 83-1,114(1) (1976). The statute also provided 15 factors that the board was obligated to consider when making a parole decision. Neb.Rev.Stat. § 83-1,114(2)(a)-(n) (1976). The Court emphasized that the statute's "unique structure and language" created an expectancy of release and this expectancy was entitled to some constitutional protection. Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106.

Since the Greenholtz decision, the circuit courts, with one exception, have either required the specific "shall/unless" language or other mandatory language comparable to that found in the Nebraska statute. See Baumann, 754 F.2d at 845 (Arizona statute has no mandatory language comparable to the standard in Greenholtz, and thus, plaintiff had no constitutionally protected liberty interest in work release or home furlough.); Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 941 (11th Cir.) cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 612 (1982) (Georgia statute had no "scheme that requires release `unless adverse findings based on specific criteria are made'" thus there was no protected liberty interest.); Candelaria v. Griffin, 641 F.2d 868, 870 (10th Cir.1981) (Here the plaintiff alleged that he was denied due process when the parole board failed to give him a psychiatric evaluation. The court held that the New Mexico statute contained discretionary language and no "shall/unless" directive and did not create a liberty interest in parole.); Williams v. Briscoe, 641 F.2d 274, 276-77 (5th Cir.) cert. denied, 454 U.S. 854, 102 S.Ct. 299, 70 L.Ed.2d 147 (1981) (Texas statute authorizes the parole board to grant parole at its discretion, and thus does not create a liberty interest.); Boothe, 605 F.2d at 664 (New York statute does not establish a scheme where parole is required unless certain conditions are met.).

Like the statutes in the above-cited cases, the relevant District of Columbia statute grants the Board of Parole discretionary power to...