Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, 77-1889

Decision Date09 June 1978
Docket NumberNo. 77-1889,77-1889
PartiesINMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX, Richard C. Walker, William Randolph, Richard J. Leary, Robert L. Gamron, Frederick L. Grant, Wayne Goham and Charles LaPlante, Appellees, v. John B. GREENHOLTZ, Individually, and as Chairman, Nebraska Board of Parole, Eugene E. Neal, Catherine R. Dahlquist, Marshall M. Tate, and Edward M. Rowley, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., argued, Paul L. Douglas, Atty. Gen., on brief, for appellants.

Brian Ridenour, Nelson, Harding, Yeutter, Leonard & Tate, Lincoln, Neb., for appellees.

Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, * District Judge.

STEPHENSON, Circuit Judge.

The defendants-appellants, members of the state of Nebraska Board of Parole (Board), appeal from the decision of the district court 1 in this class action suit arising under 42 U.S.C. § 1983. The district court held that the plaintiffs-appellees, inmates of the Nebraska Penal Complex (inmates), had been denied procedural due process by the Board in the Board's consideration of the inmates for suitability for parole.

This case raises the question of whether the due process clause of the Fourteenth Amendment to the United States Constitution extends to parole release determinations, and if so, whether the safeguards currently available under applicable Nebraska law are constitutionally adequate. We affirm that the due process clause applies to parole release proceedings. With respect to the specific procedural safeguards which the district court found were constitutionally required in such proceedings, we affirm in part, reverse in part, and remand.

The Nebraska Board of Parole consists of five members. The chairman and two members are full-time, and the other two members serve on a part-time basis. Neb.Rev.Stat. § 83-191. Under Nebraska law the Board is charged with the responsibility of determining whether and when an inmate should be released on discretionary parole. Neb.Rev.Stat. §§ 83-192, 83-1,114, 83-1,115. The Board is required by statute to review at least once a year the record of each convicted offender, whether or not eligible for parole, and to meet with him and counsel him concerning his progress and prospects for a future parole. Neb.Rev.Stat. § 83-192(9). These parole review hearings last an average of five to ten minutes and the inmates are not allowed to present evidence or call witnesses in their behalf.

After the annual parole review hearing, each prisoner is sent a form which informs him whether or not he is to receive a formal parole hearing. If he does not receive a formal parole hearing the reasons for deferral at that time are stated and recommendations are made for correcting the deficiencies. Only those inmates who are eligible for discretionary parole are granted a formal parole hearing, but in some instances eligible inmates did not receive a timely formal parole hearing. Between July 1, 1975, and June 30, 1976, 327 formal parole hearings and 1,645 review hearings were held.

If the inmate is given a formal parole hearing, he is permitted to offer evidence in support of parole, and may be represented by retained counsel. He is not permitted to cross-examine or hear opposition witnesses. If he is denied parole after a formal parole hearing, he is so advised in person and by letter. Generally the letter advises him of the reasons for denial, although eight instances were found between January 1975 and November 1976 in which reasons were not contained in the letter.

Inmates are notified either at the time of their original confinement or at subsequent parole review hearings or formal parole hearings of the month during which their next hearing will be held. This general notification occurs from 30 days to 1 year in advance. Notification of the precise date and hour occurs through posting of such information at the penal complex on the date of the hearing.

In its order and memorandum opinion of October 21, 1977, the district court concluded that parole release proceedings must be conducted in accordance with certain due process requirements and that the Board's procedures failed to comply fully with those required procedures. The court further found that the inmates were not entitled to monetary damages, but did allow them to recover their costs, including reasonable attorney fees under 42 U.S.C. § 1988.

The initial issue confronting this court is whether parole determination proceedings implicate a liberty interest of the inmates within the meaning of the due process clause of the Fourteenth Amendment. We are convinced that it does.

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Our inquiry of whether the prohibitions of the Fourteenth Amendment apply begins with the Supreme Court case of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), where the Court held that the due process clause was applicable to proceedings resulting in revocation of parole. In Morrissey, the Court articulated the proper framework for analysis of the question of whether due process applies in a particular situation.

Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. at 2600.

The interest asserted by the inmates in this suit is the present right to be considered for parole in accordance with certain procedural safeguards. 2 Since the state is not required by the Constitution to provide parole for convicted offenders, the inmates' interest is aptly described as a privilege or a matter of grace. However, this distinction is no longer an acceptable basis for determining where the due process clause applies to a governmental action. Chief Justice Burger, speaking for a majority of the Court in Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. at 2600, stated: "As Mr. Justice Blackmun has written recently, 'this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a "right" or as a "privilege." ' Graham v. Richardson, 403 U.S. 365, 374, (91 S.Ct. 1848, 29 L.Ed.2d 534) (1971)."

In the present case the Board attempts to distinguish Morrissey as well as Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (due process applies to prison disciplinary proceedings where good time credit may be lost), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (due process applies to probation revocation proceeding), on the basis that those cases involved the loss of a privilege and here we are concerned with a denial of a privilege. That is a distinction without a real difference. Bradford v. Weinstein, 519 F.2d 728, 732 and n. 3 (4th Cir. 1974), vacated as moot, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

(The) present enjoyment of a protectable interest is not a prerequisite of due process. See Goldsmith v. Bd. of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (right of C.P.A. to practice before the Board of Tax Appeals); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (admission to the bar); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (right to a tax exemption).

Bradford v. Weinstein, supra, 519 F.2d at 732 n. 3. But see Brown v. Lundgren, 528 F.2d 1050, 1052-53 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). While the parole applicant's status is not changed by denial of his application, "in the sense that he remains in the same custodial situation as before the necessity of due process to support the denial is not therefore obviated, for the status remains the same because of a Board determination which if favorable would have changed the status to one of greater liberty." Childs v. United States Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270, 1280 (1974). The nature of the interest at stake in both parole release and parole revocation is the same conditional liberty versus incarceration and thus the Fourteenth Amendment applies to both.

The Board also claims that parole release determinations should be treated differently than the determinations involved in Morrissey, Gagnon, and Wolff because in these latter cases the respective boards were required to make factual determinations and therefore hearings were appropriate. However, Neb.Rev.Stat. § 83-1,114 provides that a prisoner eligible for parole is to be released on parole unless he is found to be unfit for one of the reasons listed in the statute. Thus, the Board's decision of whether to grant parole necessitates a factual determination of whether the statutory criteria are present.

The deprivations which result from revocation of a conditional liberty enjoyed by a parolee described in Morrissey v. Brewer, supra, 408 U.S. at 481-82, 92 S.Ct. 2593, demonstrate the serious effects of denial of parole. Although a parolee is subject to many restrictions not applicable to other citizens, he is able to do a wide range of things available to...

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