Cruz v. Skelton

Decision Date22 November 1976
Docket NumberNo. 75-2554,75-2554
Citation543 F.2d 86
PartiesRoberto Baez CRUZ, Jr., Plaintiff-Appellant, v William H. SKELTON, Individually and as Chariman of the Texas Board of Pardons and Paroles, Charles G. Shandera, Individually and as a member of the Texas Board of Pardons and Paroles, Clyde Whiteside, Individually and as a member of the Texas Board of Pardons and Paroles, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

C. Taylor Ashworth, Dallas, Tex. (Court-appointed), for plaintiff-appellant.

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

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Roberto Baez Cruz brought this civil rights complaint 1 under Title 42, U.S.C., Section 1983, against named members of the Texas Board of Pardons and Parole (Parole Board, or Board) individually and in their official capacities alleging that certain of their rules and practices denied him due process and equal protection within the parole procedure. The plaintiff sought declaratory and injunctive relief, together with $1,000,000 in damages. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. We affirm.

Appellant was tried and convicted in 1967, within the courts of Texas, for murder with malice, and sentenced to life in prison. He became eligible for parole, under Texas law, in 1971. He has been denied parole from 1971 through 1975 for reasons of "past assaultive behavior" and that he was a "narcotics user", problems which Cruz alleges are not treated at the Ellis Unit of the Texas Department of Corrections, the prison in which Cruz is confined.

Cruz's complaint, when read liberally, makes two general allegations of denial of due process and equal protection. Appellant states that sociologists and psychiatrists and related programs and services are afforded inmates within the Texas prison system other than the Ellis Unit at which those services are not available. Therefore, Cruz concludes that he is the victim of the Parole Board's geographic discrimination in that factors of rehabilitation, denied Cruz because of the limited opportunities of the Ellis Unit, are favorably considered by the Board in the cases of prisoners from other units of the Texas prison system. The sole reason, according to Cruz, that he was denied parole is that he is confined at the Ellis Unit.

Cruz also contends that he has been denied due process and equal protection by the Parole Board because he has not, despite his requests, been appointed a lawyer to represent him before the Board. He contends that due process requires, under the facts of this case, that a lawyer be appointed to represent him before the Board. Cruz's secondary contention in this regard is founded upon his observation that both Texas law and the Parole Board rules provide that retained counsel may appear before the Board on behalf of prisoners that can afford such counsel yet no provision is made for the appointment of counsel to represent indigent prisoners before the Board. Cruz alleges that he is indigent, that he has requested counsel be appointed to represent him before the Board, that his request has been denied, and that consequently he is being discriminated against on the basis of his indigent status.

We note initially that a Sec. 1983 complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion, Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra.

I. DUE PROCESS

Cruz asserts that the Board has denied him due process because: (1) the Board arbitrarily and capriciously denied him a parole solely because he is confined in the Ellis Unit of the Texas prison system, (2) the Board's stated grounds for denial of Cruz's parole, "past assaultive behavior" and "narcotics user" do not take cognizance of Cruz's allegations that the Ellis Unit provides inadequate programs to treat these disorders, (3) the Board denied Cruz the opportunity to personally appear before them to state his case, and (4) the Board would not appoint Cruz counsel to appear before them.

The extent of due process to which a prisoner is entitled when applying for an eligible for parole has given rise to considerable confusion within the different circuits. In Childs v. United States Board of Parole, 1974, 67 U.S.App.D.C. 268, 511 F.2d 1270, the District of Columbia Circuit held that "the parole decision must be guided by minimal standards of due process ..." The Second and Fourth Circuits have apparently reached similar conclusions, although the precedential value of their decisions is doubtful in light of the Supreme Court's disposition of them. See United States ex rel. Johnson v. Chairman of New York State Board of Parole, 2 Cir.1974, 500 F.2d 925, vacated as moot, sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289; Bradford v. Weinstein, 4 Cir.1975, 519 F.2d 728, cert. granted 1975, 421 U.S. 998, 95 S.Ct. 2394, 44 L.Ed.2d 664, judgment vacated as moot, 1975, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350. We considered the question of due process in the granting of parole and reached an opposite conclusion in Scarpa v. United States Board of Parole, 5 Cir. en banc 1973, 477 F.2d 278, judgment vacated and remanded for a determination of mootness, 1973, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, dismissed as moot, 5 Cir.1973, 501 F.2d 992. Scarpa was stripped of value as a precedent by its dismissal for mootness, 2 which consigned it to limbo along with United States ex rel. Johnson v. Chairman of New York State Board of Parole, supra, and Bradford v. Weinstein, supra.

However, Judge Bell's recent opinion for this Court in Brown v. Lundgren, 5 Cir.1976, 528 F.2d 1050, cer. denied --- U.S. ----, 97 S.Ct. 308, 50 L.Ed.2d 283, 1976, limits any contentions appellant might make concerning the extent of the due process rights due him in the parole granting context. The prisoner, in that case, sought to challenge by means of habeas corpus the parole release process of the United States Board of Parole. We held:

"At the constitutional level, there is a clear distinction between the loss of a statutory privilege once obtained and the denial of that same privilege, never given. While the threatened loss of a privilege may be 'grievous' and therefore require some degree of procedural due process protection, see, e.g., Morrissey v. Brewer, 1972, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, the denial of that privilege may only be subject to the procedural demands of the particular enabling statute. Thus, while parole revocation and prison discipline are clearly within the ambit of the Due Process Clause of the Fifth and Fourteenth Amendments, the mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a 'grievous loss' if denied by the parole board. We thus disagree with the characterization by the Court of Appeals for the District of Columbia of the denial of parole as a deprivation of 'the valuable features of conditional liberty' equivalent to the loss involved in parole revocation that mandates due process protection. Childs v. United States Board of Parole, 1974, 167 U.S.App.D.C. 268, 511 F.2d 1270, 1278.

In any context where it is asserted that constitutional due process is required, the basic, threshold question is whether there is a 'grievous loss' of either a liberty or property interest. If there is no such loss, then the second question of whether the particular challenged procedure comports with fundamental fairness is never reached. In short, we find that the denial of parole as distinguished from the revocation of parole as in Morrissey, supra, is not a 'grievous loss', and we therefore do not consider whether the procedures of the parole board deny constitutional due process." [Footnote omitted]

Brown v. Lundgren, supra, at 1052-1053. See further, Shaw v. Briscoe, 5 Cir.1976, 541 F.2d 489, [decided October 29, 1976], where Brown v. Lundgren is relied upon in a state prisoner context.

Our decision does not rest entirely upon Brown v. Lundgren. In Cook v. Whiteside, 5 Cir.1974, 505 F.2d 32, we considered a case presenting many of the same problems as are present here in a similar factual context. In Cook a Texas state prisoner brought suit under Sec. 1983 against individual members of the Texas Board of Pardons and Paroles seeking injunctive and declaratory relief, alleging he had been denied due process and equal protection rights in the parole granting process. We held that in the absence of factual averments to support his allegations that the parole board's actions were arbitrary and capricious, Cook's contentions were insufficient to state a claim upon which relief could be granted. 3 We further held, citing Buchanan v. Clark, 5 Cir. 1971, 446 F.2d 1379, cert. denied 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294, that the refusal of the Board to appoint Cook counsel did not deny him due process. See further, Sexton v. Wise, 5 Cir.1974, 494 F.2d 1176, 1178. Cf. United States ex rel. Richerson v. Wolff, 7 Cir.1975, 525 F.2d 797, which is supportive in part of the district court holding here, but differs from Brown v. Lundgren in holding that rudimentary due process requirements govern the granting or withholding of parole.

We find without merit appellant's contentions centering on "geographic discrimination", upon which he bases his argument that he was arbitrarily and...

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