Farrish v. Mississippi State Parole Bd., 87-4068

• Citation: 836 F.2d 969
• Decision Date: 05 February 1988
• Docket Number: No. 87-4068,87-4068
• Parties: Jerry FARRISH, Plaintiff-Appellee, v. MISSISSIPPI STATE PAROLE BOARD, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 969

836 F.2d 969

Jerry FARRISH, Plaintiff-Appellee, v. MISSISSIPPI STATE PAROLE BOARD, et al., Defendants-Appellants.

No. 87-4068.

United States Court of Appeals, Fifth Circuit.

Feb. 5, 1988.

Robert L. Gibbs, Asst. Atty. Gen., Edwin L. Pittman, Atty. Gen., Jackson, Miss., for defendants-appellants.

Carroll Rhodes, Hazlehurst, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, GEE and CAROLYN DINEEN KING ^*, Circuit Judges.

CAROLYN DINEEN KING, Circuit Judge:

Three state officials appeal from an adverse judgment in a civil rights suit concerning the denial of a Mississippi parolee's constitutional right to confront an adverse witness at a preliminary parole revocation hearing. The appellants contend that the district court erred in finding as a matter of law that a denial of procedural due process caused the parolee's unlawful detention, in denying the defense of absolute immunity to the officials involved in the revocation hearing, and in finding that the officials were not entitled to qualified immunity in this case. We conclude that the district court properly found that the parolee was entitled to relief for a procedural due process violation, but we also conclude that the officers who conducted the preliminary parole revocation hearing should receive absolute immunity. Thus we partially affirm and partially reverse the district court's judgment.

I.

In 1981, a Mississippi court sentenced Jerry Farrish ("Farrish") to imprisonment in the custody of the Mississippi Department of Corrections following his conviction for possession of marijuana with intent to deliver. In 1982, Farrish received parole and returned to Hazlehurst, Mississippi, where police arrested him on May 18, 1984, pursuant to a warrant issued by a municipal judge. ¹ Farrish was placed in the Copiah County Detention Center, and on May 21, Farrish's parole officer, Ellis Stuart, Jr. ("Stuart"), issued a paroled prisoner arrest warrant that caused Farrish to be detained without bond. Also on May 21, Stuart gave Farrish written notice that an informal preliminary hearing would be held on May 25 to determine whether there was a reason to revoke his parole. The notice informed Farrish that he would "be allowed to be present, speak, present evidence, confront and cross-examine any witnesses" against him, that he had the right to retain a lawyer to represent him at the administrative hearing, and that the charge against him was the sale of marijuana.

Before and at the hearing, Farrish requested the presence of J.D. Mohon ("Mohon"), an individual whose statement to police provided the basis for the charge, and promised that Mohon would not be subject to risk of harm. Stuart and the preliminary hearing officer, R.W. Smith ("Smith"), informed Farrish that they lacked subpoena power, and Mohon did not voluntarily appear at the hearing. Instead, the hearing officer heard testimony from Farrish, Stuart, Hazlehurst Chief of Police Kenneth McClendon ("McClendon"), and Police Lieutenant Hal Pell. Both police officers testified about the events surrounding Farrish's arrest and about Mohon's statements. As additional evidence, Stuart submitted copies of Mohon's written statement and a lab report showing that 117 grams of marijuana were seized from Mohon.

The testimony revealed that McClendon knew Farrish and suspected him of drug dealing. On May 9, McClendon met Farrish driving away from Farrish's residence and saw an unfamiliar vehicle sitting in the driveway as if its occupants were waiting for Farrish's return. McClendon parked where he could inconspicuously observe the front of the house, and Farrish soon arrived. Shortly after Farrish entered the house, a person later identified as Mohon left carrying something in his hand. McClendon followed Mohon, arrested him for a traffic violation, searched his car, and found a bag of marijuana under the seat. When questioned by McClendon, Mohon stated that he bought the marijuana from Farrish for $250. A consensual search of Farrish's house when he was arrested nine days later produced no illegal drugs, but McClendon explained that Farrish anticipated his arrest.

According to Farrish, Mohon was an acquaintance introduced by a mutual friend two months earlier. Farrish testified that Mohon attempted to sell him the bag of apparently homegrown marijuana for $250. To explain his brief errand on May 9, Farrish stated that he went to pick up a repair part for his television but the repair shop was closed. Farrish admitted knowing of Mohon's arrest, but he denied anticipating his own arrest and continuing any drug-related activities. At the hearing, Farrish's attorney cross-examined each witness that appeared, but he continuously objected to the admission of Mohon's hearsay statements. The attorney also included in the hearing record a letter to Smith stating Farrish's position that, under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the hearsay testimony should not be considered unless Mohon was presented for confrontation and cross-examination. ² Smith overruled Farrish's objections, and at the close of the hearing, he found that there was probable cause to believe Farrish had violated the conditions of his parole and that he should be held in custody for a final revocation hearing before the Mississippi Parole Board.

Farrish subsequently filed suit in federal court, but the district court dismissed the case without prejudice because the court ruled that Farrish should first exhaust state remedies. Farrish then filed a habeas corpus petition in state court. The state court found that probable cause existed to hold Farrish pending a final parole revocation hearing, and the court denied Farrish relief but ordered that the final hearing be held before July 31, 1984. On July 17, the Mississippi Parole Board held a final revocation hearing without Mohon present and found no reasonable cause to revoke Farrish's parole. Consequently, Farrish was released under the terms of his original parole.

II.

On October 11, 1984, Farrish filed this suit under 42 U.S.C. Sec. 1983, alleging a violation of his constitutional right of procedural due process based on Morrissey. ³ Specifically, Farrish asserted that his detention for a final parole revocation hearing impermissibly rested on statements by an adverse witness who did not appear for confrontation and cross-examination at the preliminary hearing. He also alleged that Mississippi statutes and procedures that did not provide a means to subpoena witnesses for preliminary parole revocation hearings were unconstitutional. Farrish sued numerous state entities and officials, including the Mississippi State Parole Board and its members, the Mississippi Department of Corrections, members of the Mississippi Board of Corrections, Commissioner of Corrections Morris Thigpen, the state and its governor, and Parole Officers Stuart and Smith. ⁴ Farrish sought declaratory, injunctive, and monetary relief for himself and others similarly situated.

Farrish subsequently moved for summary judgment. With his motion, Farrish submitted copies of the record from his preliminary parole revocation hearing, a certificate from an Assistant Secretary of State for Administrative Procedures stating that no documentation of rules or regulations concerning parole revocation hearings had been filed according to state administrative law, the final judgment in Farrish's prior federal suit, the parole board's "Certificate to Continue on Parole" issued after Farrish's final revocation hearing, and an affidavit from Farrish. The defendants moved for dismissal for failure to state a claim based on immunity and responded to the summary judgment motion. ⁵ In ruling on these motions, the district court found as a matter of law that Farrish's constitutional right was violated at his preliminary parole revocation hearing. The court entered a summary judgment declaring the challenged statutes unconstitutional as applied in this case and enjoining state officials from denying parolees the right to subpoena, confront, and cross-examine witnesses. ⁶ The court also stated its view that probable cause to detain Farrish after the preliminary hearing did not exist without Mohon's hearsay statements and that Farrish was entitled to recover for his illegal confinement. The court held that the officials were entitled to assert a qualified immunity defense and that a determination of Farrish's damages and the individual liability of particular officials required a hearing.

The defendants filed a motion to reconsider in which, among other things, they argued that summary judgment was inappropriate because a factual dispute existed concerning whether there was probable cause to detain Farrish without Mohon's statements. ⁷ The district court denied the motion, stating in part that a dispute as to probable cause was immaterial to its finding that Farrish was denied procedural due process. In April 1986, the district court held a non-jury trial to decide the issues of liability and damages. From the trial evidence, the district court found "that Mohon's statement was required in order to support a finding of probable cause which would justify [Farrish's] being held in custody until a final revocation hearing." Accordingly, the court awarded Farrish compensatory damages for injuries caused by his confinement.

Furthermore, the district court held "that the minimum due process requirements enumerated in Morrissey were well established at the time of [Farrish's] hearing." The court found that neither the governor, the members of the Mississippi Board of Corrections, nor members of the Mississippi Parole Board engaged in conduct violative of Farrish's rights and, therefore, that none of those officials was personally liable. ⁸ The court did find, however, that Morris Thigpen ("Thigpen") as Commissioner of...