Cole v. Nebraska State Bd. of Parole
| Decision Date | 12 August 1993 |
| Docket Number | No. 92-1678,92-1678 |
| Parties | Frankie Levi COLE, Appellant, v. NEBRASKA STATE BOARD OF PAROLE; Ronald L. Bartee; Carlos Alvarez; Mary Wiesman; Leland Oberg; Kenneth Anderson; Judy Barnes; Nova Therapeutic Community, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Elaine A. Chapman, Asst. Atty. Gen., Lincoln, NE, for appellees.
Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Frankie Levi Cole appeals the district court's 1 August 1989 order dismissing certain defendants and the court's February 1992 grant of summary judgment to the remaining defendants in his 42 U.S.C. § 1983 action. We affirm in part and reverse in part.
Cole served a prison sentence for burglary and theft, and was paroled in November 1987, with special conditions that included his weekly attendance at Narcotics Anonymous meetings. In June 1988, after Cole failed to report to the meetings, Carlos Alvarez, a member of the Nebraska Board of Parole, requested that Kenneth Anderson, Cole's parole supervisor, order Cole to submit to a urinalysis and to place him in custody if the results were positive. Cole refused to submit, was placed under arrest by Anderson, and was transported to the Omaha Correctional Center (OCC).
In July 1988, following a revocation hearing, the parole board voted to revoke Cole's parole, but to immediately reparole him to a work release center with the same conditions. Cole signed a Certificate of Parole, which specified that as a special condition he was to attend NOVA, a drug abuse treatment center. In September 1988, Anderson again arrested Cole, who had been fired from his job and missed several NOVA meetings. Cole was transported to OCC to await his probable-cause hearing. In October the board, following another revocation hearing, voted to continue Cole on parole if he was admitted to an inpatient program at NOVA. In December, following a third revocation hearing, the board revoked Cole's parole after he admitted that he was not accepted to the NOVA program because he denied having a substance abuse problem.
Cole brought this action against NOVA, the Nebraska Board of Parole, Ronald Bartee as chairman of the Nebraska Board of Parole, NOVA counselor Judy Barnes, Anderson, and parole board members Alvarez, Mary Wiesman, and Leland Oberg. He raised several claims relating to the conditions placed on his parole and the revocation of his parole. Cole requested declaratory and equitable relief, and appointment of counsel.
The magistrate judge 2 recommended dismissal of the claims against Anderson, Barnes, NOVA, and the Nebraska Board of Parole. He recommended that Alvarez be required to answer Cole's claim that he was not a neutral and detached parole board member because he also served as a director of NOVA. The magistrate judge also determined that Cole stated a due process claim against the parole board members because there appeared to be no reason for them to require Cole to attend NOVA. Over Cole's objections, the district court adopted the magistrate judge's recommendations.
Defendants moved for summary judgment, relying on absolute or qualified immunity. Bartee attested that he recommended Cole for participation in a drug treatment program as a condition of his parole because Cole had numerous prior drug convictions and had not, despite the recommendation from the beginning of his incarceration, participated in any such program. He also stated that Cole was paroled again on March 25, 1991, and was currently on parole. Alvarez attested that he had been a non-salaried member of the Board of Directors of NOVA while he was a member of the parole board. He added, however, that Parole Administration, not the board, specified NOVA as Cole's treatment center and that he was not personally involved in the decision. Cole did not file a response to the summary judgment motion. The district court granted defendants summary judgment, concluding that the parole board members were entitled to absolute immunity because they acted within the scope of their official duties. The court also determined that Cole's release on parole rendered his request for declaratory relief moot.
The district court correctly concluded that members of the parole board were entitled to absolute immunity in deciding to revoke...
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