Evans v. Dillahunty

• Decision Date: 02 November 1981
• Docket Number: No. 81-1047,81-1047
• Citation: Evans v. Dillahunty, 662 F.2d 522 (8th Cir. 1981)
• Parties: Dr. Earl EVANS, Appellant, v. W. H. "Sonny" DILLAHUNTY and William E. Amos, in their official and individual capacities, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 522

662 F.2d 522

Dr. Earl EVANS, Appellant, v. W. H. "Sonny" DILLAHUNTY and William E. Amos, in their official and individual capacities, Appellees.

No. 81-1047.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 13, 1981.

Decided Nov. 2, 1981.

George W. Proctor, U.S. Atty., Kenneth F. Stoll, Asst. U.S. Atty. (argued), Edward G. Adcock, Paralegal, Little Rock, Ark., for appellees.

Richard Quiggle, Little Rock, Ark., for appellant.

Before HENLEY and ARNOLD, Circuit Judges, and BECKER, ^* Senior District Judge.

ARNOLD, Circuit Judge.

Dr. Earl Evans brought this action in the United States District Court for the Eastern District of Arkansas, seeking a remedy directly under the federal Constitution. ¹ Dr. Evans, a one-time federal prisoner, alleged that certain conduct of the defendants involving his application for parole violated his rights under the Fifth Amendment. Dr. Evans also brought a pendent claim for slander under Arkansas law. The District Court granted the defendants' motion to dismiss for failure to state a claim, holding that the complaint alleged only an injury to reputation and therefore failed to assert any constitutional deprivation. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Because we believe that the federal parole process involves not just the reputation of applicants for parole, but a constitutionally protected expectation of liberty under the federal parole statutes, we reverse.

I.

The case was disposed of below on a motion to dismiss, so we look only to the complaint for the relevant facts. The plaintiff's allegations must be taken as true for present purposes. Dr. Evans was sentenced in the United States District Court for the Northern District of Mississippi to two years imprisonment on December 7, 1977, after being convicted of two counts of causing the interstate transportation of fraudulent checks. See 18 U.S.C. § 2314. ² After serving a portion of his sentence Dr. Evans became eligible for parole. A parole hearing was held before a two-person parole panel, which presumably considered the relevant records and testimony. The panel recommended parole for Dr. Evans. The recommendations of a parole panel, however, do not become final if they are disapproved by the Regional Commissioner of the Parole Commission, here the defendant William E. Amos. Plaintiff claims that although the Commissioner's approval of such recommendations is customarily and routinely granted, it was not forthcoming in this case.

The complaint alleges that in conjunction with his review of the panel's recommendation, Dr. Amos contacted W. H. Dillahunty, then the United States Attorney for the Eastern District of Arkansas, to confirm the authenticity of one of the letters written in support of Dr. Evans's early release. The now-controversial letter was written by Dr. Bob Riley, a former Governor of the State of Arkansas. The letter listed Dr. Riley as the state's 39th Governor and was on official Office-of-the-Governor letterhead. In response to Amos's inquiry Dillahunty is alleged to have stated that Riley had never served as Governor and that he, in fact, was dead at the time the letter was written. Both of these statements are alleged to be false. ³ Amos is said to have rejected the panel's recommendation on the basis of this unfavorable, yet erroneous, report. Plaintiff alleges that, because of this conduct on the part of defendants, he spent four more months in the federal penitentiary than he otherwise would have.

Finally, Evans complained that the false statements of Dillahunty were slanderous as to him because they implied that he submitted a forged letter of recommendation from a non-existent Governor; that Amos deprived him of liberty without due process of law when he relied on the statements without giving him an opportunity to refute them; that Dillahunty, by making the false statements, likewise violated the Due Process Clause of the Fifth Amendment in connection with the parole application; and that Dillahunty caused plaintiff to be investigated by the Federal Bureau of Investigation.

The defendants filed a timely motion to dismiss and a supporting memorandum which argued that the claims were precluded by the privilege afforded officials of the government in the exercise of their official duties; that the complaint did not raise any issue of a denial of due process because there was no right to parole; and that allegations of a defamation by a public official did not give rise to a claim of a denial of due process under the decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

The District Court found it unnecessary to consider the scope of official immunity, because it felt that the plaintiff's claims were foreclosed by the decisions in Paul v. Davis, supra, and Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The plaintiff's claims under federal law were dismissed for failure to state a claim, and the pendent claim under state law was dismissed without prejudice.

On appeal the plaintiff makes two arguments: (1) that the complaint raises issues going beyond mere defamation and that thus the action is not barred by Paul v. Davis, and (2) that the allegations state a claim for denial of due process in connection with plaintiff's parole application. We agree with both of these arguments and therefore reverse the judgment of the District Court.

II.

Paul v. Davis, supra, teaches that a defamation by a government official does not implicate the procedural requirements of the Due Process Clause (here, of the Fifth Amendment) unless the individual is also deprived of some other right previously defined by law that could properly be characterized as "liberty" within the meaning of the Due Process Clause. ⁴ Paul v. Davis, supra, 424 U.S. at 710-12, 96 S.Ct. at 1164-65. The District Court considered the plaintiff's action to be, in essence, one for defamation, with no incidental denial of any other right held under law. This conclusion was based, in part, on language in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), cited by the District Court, to the effect that there is no inherent or constitutional right to parole release. This statement is no doubt true in a general sense, but as we will explain, it does not embody the full teaching of Greenholtz, nor does it resolve all the issues presented in this complaint.

Greenholtz was a class action under 42 U.S.C. § 1983 brought by the inmates of the Nebraska Penal and Correctional Complex. The inmates claimed, inter alia, that they had been unconstitutionally denied parole without procedural due process. 442 U.S. at 3-4, 99 S.Ct. at 2102. After an examination of the "unique structure and language" of the Nebraska parole statutes, the Supreme Court concluded that the statutory requirements did create a liberty interest, that is, an expectancy of release, that was entitled to the protection of due process. Id. at 12, 99 S.Ct. at 2106. Thus, the more complete lesson of Greenholtz is that, though there is no inherent right to parole, a limited right to parole may be provided by applicable statutes. The question in each case must turn on a careful examination of the particular statutes and regulations governing parole in a given jurisdiction.

Accordingly, resolution of the question whether a federal prisoner has a limited right to parole protected by the Due Process Clause necessarily involves an analysis of the relevant federal parole statutes. ⁵ We begin by noting that not every expectation, whether born of statute or otherwise, gives rise to a protectible interest. For example, in Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976), a prisoner's expectation that he would remain at a particular prison was found to be "too ephemeral and insubstantial to trigger procedural due process protections" where officials had the discretion to transfer him for any constitutionally permissible reason or no reason at all. But when one can show that the decisionmaker is required to base its decisions on specific, defined criteria, a protectible interest is created that is entitled to some degree of due-process protection. Connecticut Board of Pardons v. Dumschat, --- U.S. ----, ----, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring). ⁶

In the specific context of a limited right to parole, an important factor has been the presence or absence of mandatory language in the parole statute. This factor was the primary focus of this Court's analysis in the recent case of Williams v. Missouri Board of Probation and Parole, 661 F.2d 697 (8th Cir. 1981), which, of course, was unavailable to the court below. See also Boothe v. Hammock, 605 F.2d 661, 663-64 (2d Cir. 1979). In Williams we said:

After examining the similar Missouri provision in the light cast by the Greenholtz decision, we conclude that the Missouri law providing that when the statutory and regulatory guidelines are met the inmate shall be released on parole gives rise to the same protectible entitlement as the Nebraska scheme providing that the prisoner shall be paroled unless certain findings are made.

At ----. ⁷

The federal parole statute contains language similar for present purposes to the Missouri and Nebraska statutes we have set forth in the margin. The statute provides in part:

If an eligible prisoner has substantially observed the rules of the institution ... and if the Commission ... determines:

(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and

(2) that release would not jeopardize the public welfare; (then) subject to the ... guidelines promulgated by the Commission ..., such prisoner shall be released.

18 U.S.C. § 4206(a) (emphasis ours). The guidelines referred to are a...