Gale v. Moore, 84-2011
| Decision Date | 31 May 1985 |
| Docket Number | No. 84-2011,84-2011 |
| 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. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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.
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 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 opinion there is a reasonable probability that an inmate of a state correctional institution can be released without detriment to the community or to himself, the board may in its discretion release or parole such person." Mo.Rev.Stat. Sec. 217.690 (1983) (emphasis added).
The discretionary language was added in response to the Eighth Circuit's opinion in Williams v. Missouri Board of Probation and Parole, 661 F.2d 697, 699 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982), in which the Eighth Circuit concluded "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 protectable entitlement as the Nebraska scheme providing that the prisoner shall be paroled unless certain findings are made." Id. at 699 (emphasis in original). Missouri's statute as reworded does not create a protected liberty interest in parole (i.e., the regulations do not mandate release on parole when certain criteria are met or establish an entitlement to parole). They merely provide guidelines enacted to assist in the exercise of the Board's discretion.
However, in Green v. Black, 755 F.2d 687, 688 (8th Cir.1985) (per curiam), this court noted that even when statutes do not give rise to a protected liberty interest, a protected liberty interest may arise where particular regulations, practices or customs have been formally utilized through such devices as handbooks or inter-office memoranda or other standardized customs which limit the Board's discretion. Id. at 688. But in the case at bar Gale has failed to point to any such customs, regulations or practice. Furthermore, despite his assertion that he could point to such customs, if he were given a chance to develop a record, it is far from clear that he would qualify for parole...
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