Cook v. Whiteside, 74-2457

• Decision Date: 16 December 1974
• Docket Number: No. 74-2457,74-2457
• Citation: 505 F.2d 32
• Parties: George James COOK, Plaintiff-Appellant, v. Clyde WHITESIDE et al., Defendants-Appellees. Summary Calendar.* *Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970).
• Court: U.S. Court of Appeals — Fifth Circuit

Page 32

505 F.2d 32

George James COOK, Plaintiff-Appellant, v. Clyde WHITESIDE et al., Defendants-Appellees.

No. 74-2457 Summary Calendar.* *Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970).

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1974.

George James Cook, pro se.

John L. Hill, Atty. Gen., Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Before COLEMAN, DYER and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this action alleging use of unconstitutional procedures in the consideration of plaintiff inmate's eligibility for parole, the district court held that the complaint 'fails to satisfy the narrow standards for judicial challenges to parole denials as established by Scarpa v. United States Board of Parole, 477 F.2d 278 (5th Cir. 1973).'

The sole argument briefed to us by the Attorney General of Texas is that 'the District Court below was correct in dismissing Appellant's complaint based upon the authority of Scarpa.'

The district court order entered on April 25, 1974, and the attorney general's brief filed in this Court on July 18, 1974, completely overlook the fact that Scarpa has been questionable authority in this Court since October 9, 1973. On that date the Supreme Court vacated our judgment in Scarpa and remanded for determination of mootness. Scarpa v. United States Board of Parole, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973). Thereafter this Court by order dated November 30, 1973, vacated the judgment of the district court with directions to dismiss the complaint as moot.

On June 26, 1974, a panel of this Court stated that 'Scarpa has no precedential value.' Ridley v. McCall, 496 F.2d 213 (5th Cir. 1974).

A review of this case reveals, however, that the judgment of the district court should be affirmed without regard to the authority of Scarpa.

George James Cook, an inmate of the Texas Department of Corrections, brought the instant 1983 civil rights action pro se against individual members of the Texas Board of Pardons and Paroles seeking injunctive and declaratory relief. He alleged that the Board members had deprived him of rights protected by the Constitution and laws of the United States by (1) failing to appoint or provide counsel to represent him as an indigent prisoner at parole proceedings, (2) denying him access to his papers on file with the Board, (3) employing arbitrary and capricious procedures in considering prisoners for parole, thereby subjecting inmates to cruel and unusual punishment, (4) denying him a meaningful notification of the reasons for the denial of his parole, and (5) interfering with his right to rehabilitation. Without an evidentiary hearing, the District Court for the Southern District of Taxas dismissed Cook's complaint for failure to state a claim upon which relief could be granted.

As a basis for review, we note that a 1983 complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We are also cognizant that the pleadings of pro se litigants should not be held to standards as stringent as the formal pleadings of attorneys. With these guidelines in mind, we examine the five counts of Cook's complaint individually.

In the first count of his complaint, Cook claims that the members of the Board deprived him of his constitutional rights to due process and equal protection of the laws by failing to provide him, as an indigent prisoner, with representation by counsel at parole eligibility proceedings. In Buchanan v. Clark, 446 F.2d 1379 (5th Cir.), cert. denied, sub nom. Buchanan v. United States, 404 U.S. 979, 92 S.Ct. 347, 30...