Crump v. Kansas, CIV.A.97-3018-CM.

• Citation: 143 F.Supp.2d 1256
• Decision Date: 30 March 2001
• Docket Number: No. CIV.A.97-3018-CM.,CIV.A.97-3018-CM.
• Parties: Danny CRUMP, Plaintiff, v. State of KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

143 F.Supp.2d 1256

Danny CRUMP, Plaintiff, v. State of KANSAS, et al., Defendants.

No. CIV.A.97-3018-CM.

United States District Court, D. Kansas.

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

Danny Crump, Lansing, KS, Pro se.

James W. Coder, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

This matter is before the court on the defendants' motion for summary judgment (Doc. 22). Because the court finds that (1) plaintiff has no liberty interest in parole pursuant to Kansas law, (2) the classifications applied by the state to the plaintiff are rationally related to a governmental interest and therefore do not constitute a violation of plaintiff's equal protection right pursuant to the Fourteenth Amendment, and (3) Kan. Stat. Ann. § 22-3717 (Supp.2000) does not violate the Ex Post Facto Clause of the United States Constitution, the court grants the defendants' motion.

1. Facts¹

The plaintiff was convicted in 1981 in the Johnson County, Kansas, District Court of using a booby-trap dynamite bomb² in the first degree murder of his ex-wife and five members of her family, aggravated battery of three other persons, including plaintiff's son, and arson and attempted arson in destroying the house of his ex-wife's family and other property. Plaintiff was sentenced to six concurrent terms of life imprisonment to be served consecutively³ with three sentences of five to twenty years each for aggravated battery, a sentence of three to fifteen years for arson, and a sentence of one to five years for attempted arson.

Plaintiff went before the Kansas Parole Board (KPB) for consideration for parole in August 1995. The board denied parole and gave plaintiff a three year deferral before his next hearing for the following reasons: (1) serious nature and circumstances of the crime, (2) denies responsibility, (3) objections regarding parole, and (4) disciplinary reports.

The Kansas legislature amended Kan. Stat. Ann. § 22-3717 effective July 1, 1996 to allow the parole board to defer an inmate for parole hearing up to ten years if the "board finds that it is not reasonable to expect that parole would be granted at a hearing if held in the next 10 years or during the interim period of a deferral." Act of May 17, 1996, Ch. 267, § 15, 1996 Kan. Sess. Laws 1943, 1959 (codified as amended at Kan. Stat. Ann. § 22-3717 (Supp.2000)). In January 1997, plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 claiming that the procedures used at his parole hearing violated his due process rights under the United States Constitution.

In 1998, the plaintiff was again before the KPB, which denied him parole and deferred consideration until September 2008. The board stated its decision: "Pass to September 2008. Pass reasons: Serious and violent nature and circumstances of the crime, objections regarding parole .... [T]he board makes a special finding that a subsequent parole hearing should be deferred for 10 years, because it is not reasonable to expect that parole would be granted at a hearing if held before then, for the reasons indicated below: Extended pass reasons: Six counts of murder, 3 additional persons seriously injured, entire home destroyed." (Defs.' Mem., Ex. 2).

On September 29, 1999, plaintiff amended his complaint to add a claim that Kan. Stat. Ann. § 22-3717 as amended in 1996 violated the Ex Post Facto Clause, Art. I, § 10, of the United States Constitution. Defendants subsequently made the motion for summary judgment at issue here.

2. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

3. § 1983 Due Process Claims

To establish a claim under § 1983, a plaintiff must allege a deprivation under color of state law of a right protected by federal law or the Constitution. Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir.1994). Plaintiff argues that, because the KPB received protest letters and victim impact statements in its consideration of plaintiff's parole, and because it used the amended statute to pass him for ten years before his next parole hearing, the KPB has violated plaintiff's due process rights under the United States Constitution. "The Due Process Clause applies when government action deprives a person of liberty or property." Id. (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)). If plaintiff has a liberty interest in parole, it must come from some constitutional or statutory grant. Id.

The Constitution does not itself provide an inherent right to receive parole before expiration of a valid sentence. Id. Plaintiff implies that he has a liberty interest in parole created by state law or parole regulations. State law or regulations create a liberty interest in parole only where they create a "legitimate expectation of release" or use "mandatory language which creates a liberty interest and places significant limits on the board's discretion." Id. at 1015-16 (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; and citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-80, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). Plaintiff cites to Greenholtz, in which the Court held that Nebraska statutes established a protected liberty interest in parole, Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100, and an Eighth Circuit decision in which the court held that a regulation of the Arkansas Parole Board established a protected liberty interest in parole. Parker v. Corrothers, 750 F.2d 653, 661 (8th Cir.1984).

Greenholtz and Parker are readily distinguished from this case. In Greenholtz, the statute at issue required that the board "shall" order release "unless" it found one of four substantive reasons to deny parole. Greenholtz, 442 U.S. at 11-12, 99 S.Ct. 2100. The regulation at issue in Parker stated that it is the "policy of the Board to order ... release" "unless" the board finds one of nine substantive reasons to deny parole. Parker, 750 F.2d at 658. The Kansas statute at issue is worded in the opposite fashion from the statute or regulation in Greenholtz or Parker. The Kansas statute presumes that the inmate will not be released unless the parole board makes certain affirmative findings. The statute provides that "the Kansas parole board may release on parole those persons ... who are eligible for parole when: ... the board believes that" certain requirements are met. Kan. Stat. Ann. § 22-3717 (Supp.2000) (emphasis added). It is hard to conceive how the statute could be more discretionary short of granting the board unbridled discretion.

The statute in effect when plaintiff committed his crimes is of similar construction. "An inmate shall be placed on parole only when the Kansas adult authority believes that the inmate is able and willing to fulfill the obligations of a law-abiding citizen." Act of Apr. 16, 1979, Ch. 94, § 2, 1979 Kan. Sess. Laws 534, 538 (codified as amended at Kan. Stat. Ann. § 22-3717 (Supp.2000)) (emphasis added). Neither statute contains mandatory language which places significant limitations on the board's discretion and neither creates a legitimate expectation of release.

Plaintiff does not point to any regulation of the parole board which might create a protected liberty interest in parole. The court has made an independent review of the Kansas Parole Board regulations, Kan. Admin. Reg. § 45-1-1 et seq., and finds no basis to conclude that the regulations create such an interest. The...