Gale v. Moore, 84-2011
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN; PER CURIAM |
| Citation | 763 F.2d 341 |
| Parties | Tony Joe GALE, Appellant, v. Dick MOORE, Chairman, Missouri Board of Probation and Parole, Bill Duncan, Carolyn V. Atkins, Appellees. |
| Docket Number | No. 84-2011,84-2011 |
| Decision Date | 31 May 1985 |
Page 341
v.
Dick MOORE, Chairman, Missouri Board of Probation and
Parole, Bill Duncan, Carolyn V. Atkins, Appellees.
Eighth Circuit.
Decided May 31, 1985.
Page 342
Wilson Phillips, Jr., Kansas City, Mo., for appellant.
George W. Cox, III, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
PER CURIAM.
Appellant Tony Joe Gale appeals from a final order entered in the District Court 1, 587 F.Supp. 1491, for the Western District of Missouri dismissing his 42 U.S.C. Sec. 1983 complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d). For reversal Gale contends that the district court erred in dismissing the complaint as frivolous and that the State of Missouri has denied him equal protection by creating different standards of parole for sexual offenders than that required of the rest of the prison population. We modify and affirm.
Gale is serving a ten-year sentence at the Missouri Department of Corrections for his conviction for sodomy, after which Gale is to serve two concurrent five-year sentences for additional sodomy and rape convictions.
Gale, whose petition for parole was rejected by the Missouri Board of Probation and Parole, filed this section 1983 action seeking a review of the last fifty paroles granted by the Board, the removal of the present members, a mandamus forcing the Board to demonstrate to the court why his parole was not granted and monetary damages from the individual Board members. In short, Gale contends that the Board has violated his constitutional rights by denying him parole because he is a sexual offender.
On due process considerations, the district court dismissed the complaint as frivolous because Gale had not established a liberty interest in parole protected by the due process clause.
In Parker v. Corrothers, 750 F.2d 653 (8th Cir.1984), this court held that, "... although there is no constitutional right to parole, a protected liberty interest may be created by the statutes governing parole in a given jurisdiction." Id. at 655 (citing Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7-11, 99 S.Ct. 2100, 2103-2105, 60 L.Ed.2d 668 (1979)).
This court concluded that there are two standards which determine whether a parole statute creates a protected liberty interest: (1) does the statute contain particularized substantive standards or criteria which significantly guide parole decisions;
Page 343
and (2) does the statute use mandatory language similar in substance and form to the Nebraska statute's language at issue in Greenholtz. Parker, 750 F.2d at 661.Missouri's parole statute provides in part: "When in its...
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