Dace v. Mickelson

• Decision Date: 19 June 1987
• Docket Number: No. 85-5126,85-5126
• Citation: 816 F.2d 1277
• Parties: Troy DACE, Appellant, v. George MICKELSON, Harold Shunk, and Jon Erickson, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1277

816 F.2d 1277

55 USLW 2640

Troy DACE, Appellant, v. George MICKELSON, Harold Shunk, and Jon Erickson, Appellees.

No. 85-5126.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1987.

Decided April 28, 1987.

Opinion on Denial of Rehearing June 19, 1987.

Michael J. Schaffer, Sioux Falls, S.D., for appellant.

John W. Bastian, Asst. Atty. Gen., Pierre, S.D., for appellees.

Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, and MAGILL, Circuit Judges.

LAY, Chief Judge.

Troy Dace is serving two concurrent ten year sentences in the South Dakota State Penitentiary for aggravated assault and attempted rape. On January 27, 1984, Dace became eligible for parole and he appeared before the South Dakota Board of Pardons and Parole (the Board). The Board denied Dace's request for parole giving no reason for the denial.

Dace then brought this 42 U.S.C. Sec. 1983 action in federal district court contending that the Board deprived him of a liberty interest without due process of law in violation of the fourteenth amendment. The district court ¹ dismissed his claim on the ground that the South Dakota statute, S.D. Codified Laws Ann. Sec. 24-15-8 (1979), and regulations, S.D.Admin.R. 17:60:02:01-:09 (1979), governing parole did not provide any liberty interest and that therefore Dace was not entitled to assert a lack of due process. A panel of this court reversed the district court's dismissal, Dace v. Mickelson, 797 F.2d 574 (8th Cir.1986), and this court en banc granted a rehearing. We now vacate the panel's decision and affirm the district court.

In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S.

1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held:

There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: "[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976).

442 U.S. at 7, 99 S.Ct. at 2104.

Greenholtz, however, established that a state may create a liberty interest in parole by enacting a statute which instills in an inmate an "expectancy of release." Id. at 12, 99 S.Ct. at 2106; see also Parker v. Corrothers, 750 F.2d 653, 655 (8th Cir.1984); Evans v. Dillahunty, 662 F.2d 522, 524 (8th Cir.1981). The court further held that when a liberty interest in parole is created by the state, minimal due process considerations require that when parole is denied the board must inform the inmate of the reasons he falls short of qualifying for parole. Greenholtz, at 16, 99 S.Ct. at 2108. ²

In Parker v. Corrothers, this court reviewed leading Supreme Court and Eighth Circuit cases ³ and concluded:

These cases indicate that there are two standards which determine whether a statute creates a protected liberty interest in parole: (1) does the statute contain particularized substantive standards or criteria which significantly guide parole decisions; and (2) does the statute use mandatory language similar in substance or form to the Nebraska statute's language at issue in Greenholtz ?

750 F.2d at 656; see also Nash v. Black, 781 F.2d 665, 668 (8th Cir.1986) (Parker test adopted in analyzing Missouri Department of Corrections' refusal to transfer prisoner or to consider him for furlough). The same standards apply to a review of a state rule, regulation, or practice to find an expectancy of release. In determining whether a statute or regulation provides a liberty interest, the court must decide whether that state has placed "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747 75 L.Ed.2d 813 (1983). "An inmate must show 'that particularized standards or criteria guide the State's decisionmakers.' " Id. (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring)). As the Olim court stated: "If the decisionmaker is not 'required to base its decisions on objective and defined criteria,' but instead 'can deny the requested relief for any constitutionally permissible reason or for no reason at all' the State has not created a constitutionally protected liberty interest." Olim, 461 U.S. at 249, 103 S.Ct. at 1747 (quoting Justice Brennan's concurring opinion To satisfy the first prong of the Parker test, the parole statute must contain "particularized substantive standards or criteria which significantly guide parole decisions." Parker, 750 F.2d at 656. Substantive standards are specific, objective, measurable criteria such as length of time served, prior criminal history, seriousness of the offense, any disciplinary reports, and existence of any detainers filed against the inmate. See, e.g., id., at 658. On the other hand, general factors to be taken into consideration by a parole board which do not rise to the level of substantive guidelines include general sociological and background information such as family history, education, progress in rehabilitation programs, and ability to adjust to life outside prison. Although these are important considerations, they are subjective in nature and do not place substantive limitations on prison officials' discretion in any measurable way.

in Dumschat, 452 U.S. at 466-67, 101 S.Ct. at 2465).

Even if substantive guidelines are to be considered, however, unless these guidelines limit the parole board's discretion to release the prisoner, no liberty interest in parole is established. See id., at 656. In other words, for a state to create a protectible liberty interest the statute or regulation must require release upon satisfaction of the substantive criteria listed. Such a directive may be found where the state uses language of a mandatory character, such as "shall," "will," or "must." Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983); see, e.g., Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2106 (parole board "shall" release inmate "unless" one of four criteria is met and board believes that release should be deferred); Parker, 750 F.2d at 657 ("while the presence or absence of mandatory language is not necessarily talismanic, it is an important factor in determining whether a parole statute creates a liberty interest"); Evans, 662 F.2d at 525 ("important factor has been the presence or absence of mandatory language"); see also, e.g., Boothe v. Hammock, 605 F.2d 661, 663-64 (2d Cir.1979). While this mandatory language is usually found in a "shall * * * unless" or similar format, ⁴ several other forms have been found sufficient to satisfy the mandatory language requirement. See Parker, 750 F.2d at 658 ("it is the policy" of the board to release inmates "unless" the board believes release should be deferred for any of several reasons); see also Mayes v. Trammel, 751 F.2d 175, 178 (6th Cir.1984) (board "operates under the presumption" that each prisoner is a worthy candidate for parole and "presumes he will be released" when first eligible, but parole "may" be denied "if" certain factors are met); but see Wright v. Trammell, 810 F.2d 589 (6th Cir.1987) (per curiam) (new rule makes parole release purely discretionary).

The mere use of discretionary language, however, is insufficient to establish a liberty interest. To create a liberty interest in the context of a parole release statute, regulation, or rule, it is essential that the prisoner's release be mandated in order to fulfill the requirements of our Parker test. See, e.g., Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2106 (board "shall order [prisoner's] release "); Parker, 750 F.2d at 658 ("it [is] the policy of the Board to order [prisoner's] release "); Evans, 662 F.2d at 526 ("such prisoner shall be released "); Williams, 661 F.2d at 698 ("the board shall release " prisoner) (emphasis added). If the statute, rule, or regulation only mandates that the state officials follow certain procedures or take into account certain factors, but specifically provides that the prisoner's release is nevertheless discretionary with the board, as evidenced by the use of discretionary language, then no protected liberty interest has been created. See, e.g., Gale v. Moore, 763 F.2d 341, 343 (8th Cir.1985) (amended Missouri parole statute requiring consideration of certain substantive criteria but which also provides

that the parole board "may in its discretion release a prisoner" does not create a liberty interest); Parker, 750 F.2d at 656-57 (Arkansas statute requiring consideration of certain criteria but which provides that the parole board "may release" prisoner creates no liberty interest). We now turn to the relevant statute and regulations.

S.D. Codified Laws Ann. Sec. 24-15-8

On January 27, 1984, the date Dace became eligible for parole, the relevant parole statute provided:

When an inmate becomes eligible for parole, he shall be called before the board of pardons and paroles to personally present his application for parole. The board may issue an order to the warden of the penitentiary that the inmate shall be paroled if it is satisfied that:

(1) The inmate has been confined in the penitentiary for a sufficient length of time to accomplish his rehabilitation;

(2) The inmate will be paroled under the supervision and restrictions provided by law for parolees, without danger to society; and

(3) The inmate has secured suitable employment or beneficial occupation of his time likely to continue until the end of the period of his parole in some suitable place within or without the state where he will be free from criminal influences.

The board shall fix the time of parole for an...