Inmates of Neb. Penal & Correctional v. Greenholtz

• Citation: 436 F. Supp. 432
• Decision Date: 07 December 1976
• Docket Number: Civ. No. 72-L-335 and 73-L-150.
• Parties: INMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX, Plaintiff, v. John B. GREENHOLTZ, Individually and as Chairman, Nebraska Board of Paroles, et al., Defendants. Robert O. McDONNELL, Plaintiff, v. John B. GREENHOLTZ, Individually and as Chairman, Nebraska Board of Paroles, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

436 F. Supp. 432

INMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX, Plaintiff, v. John B. GREENHOLTZ, Individually and as Chairman, Nebraska Board of Paroles, et al., Defendants.

Robert O. McDONNELL, Plaintiff, v. John B. GREENHOLTZ, Individually and as Chairman, Nebraska Board of Paroles, et al., Defendants.

Civ. Nos. 72-L-335 and 73-L-150.

United States District Court, D. Nebraska.

July 14, 1976.

On Motion to Alter or Amend December 7, 1976.

COPYRIGHT MATERIAL OMITTED

Gary L. Dolan, Lincoln, Neb., Roy S. Haber and Walter R. Echo-Hawk, Native American Rights Fund, Boulder, Colo., for subclass of inmates alleging denial of parole for racially discriminatory reasons.

John C. Gourlay, Lincoln, Neb., for subclass of inmates alleging denial of parole for seeking access to the courts (subclass includes plaintiff Robert McDonnell).

Brian Ridenour, Lincoln, Neb., for subclass of inmates alleging violation of due process at parole proceedings.

Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for defendants.

MEMORANDUM OPINION

SCHATZ, District Judge.

These actions, which were consolidated for trial, were brought under 42 U.S.C. § 1983 by inmates of the Nebraska Penal Complex to obtain relief from alleged deprivations of their civil rights. McDonnell v. Greenholtz, CIV. 73-L-150, was brought by an individual plaintiff, Robert McDonnell, alleging that he was deprived of parole because he had filed a number of lawsuits against various prison officials. At the time the action was filed, McDonnell was an inmate of the Nebraska Penal Complex, but he received a mandatory parole to a federal detainer in June, 1974, and is no longer an inmate at the Penal Complex. Inmates v. Greenholtz, CIV. 72-L-335, is a class action brought by inmates incarcerated in the Nebraska Penal Complex. It was divided into two subclasses: one whose members alleged denial of parole or work release because they had sought access to the courts, and one whose members alleged denial of parole and work release for racially discriminatory reasons. Counsel was appointed to represent the plaintiffs in both actions. All plaintiffs seek injunctive relief and money damages from the defendants. The defendants in both actions are the individual members of the Nebraska Board of Parole sometimes referred to as Board. Jurisdiction is present under 28 U.S.C. § 1343.

Nebraska has a comprehensive statutory system establishing and regulating the Board of Parole. The Board was comprised of three members, later enlarged to five members, who were appointed by the governor and confirmed by the legislature. Neb.Rev.Stat. § 83-189. The Board presently consists of three white men, one black man, and one white woman. The Board's powers and duties, so far as material here, are defined by statute:

The Board of Parole shall:

(1) Determine the time of release on parole of committed offenders eligible for such release;

(2) Fix the conditions of parole, revoke parole, issue or authorize the issuance of warrants for the arrest of parole violators, and impose other sanctions short of revocation for violation of conditions of parole;

(3) Determine the time of discharge from parole;

* * * * * *

(5) Serve in an advisory capacity to the Director of Corrections in administering parole services within any facility and in the community;

* * * * * *

(7) Conduct research for the purpose of evaluating and improving the effectiveness of the parole system;

* * * * * * (9) Review the record of every committed offender, whether or not eligible for parole, not less than once each year. Such review shall include the circumstances of the offender's offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole;

(10) Make rules and regulations for its own administration and operation;

(11) Appoint and remove all employees of the board and delegate appropriate powers and duties to them.

* * * * * *

(13) Exercise all powers and perform all duties necessary and proper in carrying out its responsibilities under the provisions of this act.

Neb.Rev.Stat. § 83-192.

Each inmate, whether or not eligible for parole, is entitled to a review of his parole status at least once a year. Neb.Rev.Stat. § 83-192. Each inmate is entitled to a parole hearing before the Board within sixty days before the expiration of his minimum term, less time allowed for good behavior, or if there is no minimum, within ninety days of his commitment. Neb.Rev. Stat. § 83-1,111(1).

Parole eligibility and release from the institution are also governed by a complex statutory system. An inmate must be released from the institution after he has served his maximum sentence, less reductions for good behavior, as provided by statute, or three months prior to discharge from his sentence, whichever is earlier. Neb.Rev.Stat. § 83-1,111(5). This is referred to as "mandatory parole" because the release is required by law, but the inmate still remains subject to some parole conditions until his sentence expires. If an inmate is eligible,¹ the Board may release him from the institution at an earlier time. This is referred to as "discretionary parole" because the Board is given the discretion by state law, Neb.Rev.Stat. § 83-192, to release an inmate on early parole.

In making the decision whether to grant a discretionary parole, the Board must consider certain factors such as the inmate's prison record, including his evaluation and progress reports; his presentence report; the sentencing judge's recommendations; any relevant information submitted by the inmate, his attorney or others; and other items. Neb.Rev.Stat. § 83-115. State law lists the reasons for which parole shall be deferred and the factors which must be taken into account by the Board:

(1) Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

(a) There is a substantial risk that he will not conform to the conditions of parole;

(b) His release would depreciate the seriousness of his crime or promote disrespect for law;

(c) His release would have a substantially adverse effect on institutional discipline; or

(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date. (2) In making its determination regarding a committed offender's release on parole, the Board of Parole shall take into account each of the following factors:

(a) The offender's personality, including his maturity, stability, sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law;

(b) The adequacy of the offender's parole plan (c) The offender's ability and readiness to assume obligations and undertake responsibilities;

(d) The offender's intelligence and training;

(e) The offender's family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community;

(f) The offender's employment history, his occupational skills, and the stability of his past employment;

(g) The type of residence, neighborhood or community in which the offender plans to live;

(h) The offender's past use of narcotics, or past habitual and excessive use of alcohol;

(i) The offender's mental or physical makeup, including any disability or handicap which may affect his conformity to law;

(j) The offender's prior criminal record, including the nature and circumstances, recency and frequency of previous offenses;

(k) The offender's attitude toward law and authority;

(l) The offender's conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration;

(m) The offender's behavior and attitude during any previous experience of probation or parole and the recency of such experience; and

(n) Any other factors the board determines to be relevant.

Neb.Rev.Stat. § 83-1,114.

The Board's decision, which is determined by a majority vote, must be based on the entire record before the Board. Neb.Rev. Stat. § 83-1,111(2).

The plaintiffs do not claim that they are entitled to an immediate release on parole. Their claim is that the defendants have denied parole to otherwise eligible inmates for constitutionally impermissible reasons: because they have sought access to the courts or because of their race.

ACCESS TO COURTS

The Board had a long-standing policy of not considering an otherwise eligible inmate for discretionary parole if, at the time his parole status was reviewed, he had legal actions pending in the courts. This policy was in effect in 1970 when defendant Greenholtz became Chairman of the Parole Board and the policy continued until 1973. In the fall of 1973 the Board abolished this policy on the grounds that it interfered with the inmate's right to seek redress of his grievances in the courts. There is no credible evidence that, after that date, the Board has deferred or denied parole to any eligible inmate for the reason that he had an action pending in the courts.

It is obvious that access to the courts is a fundamental right of every citizen, including those persons confined in prisons. It is absolutely essential that those individuals be afforded every reasonable opportunity to present their complaints to ...