Conlogue v. Shinbaum, No. 90-7760
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before EDMONDSON and COX, Circuit Judges, and CLARK; PER CURIAM |
| Citation | 949 F.2d 378 |
| Decision Date | 26 December 1991 |
| Docket Number | No. 90-7760 |
| Parties | William Scott CONLOGUE, Plaintiff-Appellant, v. Dr. Marion SHINBAUM, Director of Classification, Alabama Department of Corrections, Defendant-Appellee. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit |
Page 378
v.
Dr. Marion SHINBAUM, Director of Classification, Alabama
Department of Corrections, Defendant-Appellee.
United States Court of Appeals,
Eleventh Circuit.
Page 379
William S. Conlogue, pro se.
Harry A. Lyles, Andrew W. Redd, State of Alabama Dept. of Corrections, Montgomery, Ala., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before EDMONDSON and COX, Circuit Judges, and CLARK, Senior Circuit Judge.
PER CURIAM:
William Scott Conlogue pled guilty to a 1977 offense of second degree murder, and has been serving a 28 year sentence in an Alabama state prison since 1988. He is
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apparently a model prisoner, and prison officials have recommended that he be placed on Incentive Good Time (IGT) status. The Department of Corrections, however, denied Conlogue IGT status at this time because of his record of multiple violent offenses.Conlogue brings this section 1983 claim pro se charging that the Alabama Department of Corrections violated the due process and equal protection clauses of the fourteenth amendment, and the ex post facto law clause of article 1, section 10, clause 1 of the U.S. Constitution. He also charges that Administrative Regulation 420 violates the Alabama state legislature's intent.
Administrative Regulation 420 sets out the basis for determining a prisoner's eligibility for IGT. Section II(h) of this regulation in effect in 1977, when Conlogue committed his crime, stated:
Psychological and/or Sociological. Any inmate whose psychological or sociological profile contraindicates an early release back to society will not receive IGT. A history of repeated disciplinaries will constitute evidence of an inability to adjust and, therefore, a contraindication to IGT status.
In 1986, the Department of Corrections added the following to this section:
Since criminal record is an important element of sociological profile, repeated convictions for violent crimes against persons may be a contraindication to award of IGT status.
The district court adopted the magistrate's recommendation to dismiss the case as frivolous pursuant to 28 U.S.C. § 1915(d), as it found that plaintiff's legal theories were meritless. 1 This court granted Conlogue's motion to appeal in forma pauperis, and we affirm the district court on the issues it addressed.
The Alabama regulation in effect in 1977 awards IGT on a discretionary basis. The terms "psychological or sociological profile" are broad and not defined. Disciplinary history and criminal record are only "evidence" or an "element" of such a profile. This leaves the Department discretion to consider other factors. There is no suggestion that "repeated disciplinaries" were the only criteria contraindicating early release in 1977.
The 1986 addition makes no mandatory constraints on the regulation's original discretion. An inmate's criminal record "may" be considered in determining IGT status. The addition thus serves only to further define the meaning of "sociological profile", not create new law.
"When [a] statute is framed in discretionary terms there is not a liberty interest created." 2 Regulation 420 II(h) gives the Department of Corrections discretion in awarding IGT to prisoners. We thus hold that Regulation 420 II(h) does not create a liberty interest protected by the due process clause. 3
Denying IGT to prisoners based on their criminal record is rationally related to the state's interest in preventing the early release of serious offenders. 4 We thus hold that Regulation 420 II(h) does not violate the equal protection clause.
The magistrate and district court could not address Conlogue's claim that the state Administrative regulation violates the intent of the state legislature, because this conduct does not deprive him of any rights
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secured by the laws or constitution of the United States. 5 We too are bound by the same limitations on our jurisdiction.Conlogue also claims that when the Department of Corrections denied him IGT because of...
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Brown v. Dillard, CASE NO. 2:13-CV-815-WHA (WO)
...state interest of ensuring that only those inmates best suited for parole are actually granted this privilege. Cf. Conlogue v. Shinbaum, 949 F.2d 378 (11th Cir. 1991); see also Thornton v. Hunt, 852 F.2d 526 (11th Cir. 1988). Brown has therefore failed to present any evidence indicating arb......
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Alverson v. Allen, CIVIL ACTION NO. 2:09cv780-TFM
...deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Conlogue v. Shinbaum, 949 F.2d 378, 380-81 & n.5 (11th Cir. 1991). The actions about which the plaintiff complains, standing alone, do not violate the constitution. The mere ......
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Aponte-Pinto v. Woods, Case No.: 3:18cv443/LAC/EMT
...on official discretion and thus created no liberty interest entitled to protection under the Due Process Clause); Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir. 1991) (concluding no liberty interest arose from possibility of discretionary grant of incentive good time); Venegas v. Henman......
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Blair v. Thomas, CASE NO. 2:12-CV-909-WHA [WO]
...state interest of ensuring that only those inmates best suited for lower custody classifications are so placed. Cf. Conlogue v. Shinbaum, 949 F.2d 378 (11th Cir. 1991); see also Thornton v. Hunt, 852 F.2d 526 (11th Cir. 1988) (holding that the denial of eligibility for incentive time benefi......
-
Brown v. Dillard, CASE NO. 2:13-CV-815-WHA (WO)
...state interest of ensuring that only those inmates best suited for parole are actually granted this privilege. Cf. Conlogue v. Shinbaum, 949 F.2d 378 (11th Cir. 1991); see also Thornton v. Hunt, 852 F.2d 526 (11th Cir. 1988). Brown has therefore failed to present any evidence indicating arb......
-
Alverson v. Allen, CIVIL ACTION NO. 2:09cv780-TFM
...deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Conlogue v. Shinbaum, 949 F.2d 378, 380-81 & n.5 (11th Cir. 1991). The actions about which the plaintiff complains, standing alone, do not violate the constitution. The mere ......
-
Aponte-Pinto v. Woods, Case No.: 3:18cv443/LAC/EMT
...on official discretion and thus created no liberty interest entitled to protection under the Due Process Clause); Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir. 1991) (concluding no liberty interest arose from possibility of discretionary grant of incentive good time); Venegas v. Henman......
-
Blair v. Thomas, CASE NO. 2:12-CV-909-WHA [WO]
...state interest of ensuring that only those inmates best suited for lower custody classifications are so placed. Cf. Conlogue v. Shinbaum, 949 F.2d 378 (11th Cir. 1991); see also Thornton v. Hunt, 852 F.2d 526 (11th Cir. 1988) (holding that the denial of eligibility for incentive time benefi......