Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority

• Decision Date: 26 March 1991
• Docket Number: No. 90-3543,90-3543
• Citation: 929 F.2d 233
• Parties: INMATES OF ORIENT CORRECTIONAL INSTITUTE, Plaintiffs-Appellants, v. OHIO STATE ADULT PAROLE AUTHORITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 233

929 F.2d 233

INMATES OF ORIENT CORRECTIONAL INSTITUTE, Plaintiffs-Appellants, v. OHIO STATE ADULT PAROLE AUTHORITY, et al., Defendants-Appellees.

No. 90-3543.

United States Court of Appeals Sixth Circuit.

Argued Feb. 12, 1991.

Decided March 26, 1991.

Lawrence J. Greger (argued), Marlena L. Pankowski, Greger & Ovington, Dayton, Ohio, for plaintiffs-appellants.

Allen P. Adler (argued), and Frederick C. Schoch, Asst. Attys. Gen., Steven W. Ritz, Office of the Atty. Gen. of Ohio, Columbus, Ohio, for defendants-appellees.

Before NELSON and SUHRHEINRICH, Circuit Judges, and HACKETT, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

This is an appeal from the denial of a preliminary injunction in a federal civil rights action brought under 42 U.S.C. Sec. 1983 by a group of parole-eligible Ohio prison inmates.

Each of the plaintiff inmates received a hearing before a board of the Ohio Adult Parole Authority. In each instance the hearing resulted in a decision to grant parole "on" or at some indeterminate time "after" a specified date (commonly called the "on or after date"), subject to approval of an acceptable out-of-prison placement plan by the Authority's Parole Supervision Section.

Primarily because of a shortage of space in the limited number of halfway houses that accept sex offenders, it proved difficult to find acceptable placements for the plaintiffs in this case. Each of the plaintiffs who testified at the injunction hearing appears to fall in the "hard to place" category, ¹ and each of them testified either that his on or after date had been rescinded or that rescission was threatened.

Rescission of an on or after date is not preceded by a formal hearing, under Ohio's practice, although it is the policy of the parole board to hold a hearing soon after rescission has occurred. The hearing gives the inmate an opportunity to present documents and to discuss his placement problem directly with the board; the inmate is not entitled to call witnesses, however, or to be represented by counsel.

Alleging that rescission of on or after dates without prior notice and opportunity for an evidentiary hearing violates due process rights guaranteed by the federal constitution, the plaintiffs sought an interlocutory injunction to bar rescission pending determination of the merits of their lawsuit. The district court declined to grant such an injunction, holding that the plaintiffs had failed to sustain their "initial burden" (see N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 167 (6th Cir.1989)) of showing a substantial likelihood of success on the merits.

For reasons well stated in the comprehensive opinion filed by the district court, the court concluded, among other things, that Ohio law gives a prison inmate no constitutionally protected liberty interest in being released at a time related to his on or after date. We agree. We shall affirm the denial of the injunction on this ground, without reaching the question whether, as the district court also concluded, the plaintiffs had no likelihood of succeeding in a Sec. 1983 action because their sole federal remedy lies in habeas corpus.

I

The Due Process Clause of the Fourteenth Amendment, which imposes the same restraints on the states that the corresponding clause of the Fifth Amendment imposes on the national government, prohibits "any State [from] depriv[ing] any person of life, liberty, or property, without due process of law...." No right to due process arises, under this language, except where a state undertakes to deprive a person of one or more of the three interests specified: life, liberty, or property. It is "liberty," of course, with which we are concerned in the case at bar.

Although incarceration itself represents a quintessential deprivation of liberty, lawful incarceration does not extinguish all of a prisoner's constitutionally protected liberty. Prison inmates retain what the Supreme Court has characterized as "a residuum of liberty," Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983) (citing Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974)), despite the fact that inmates are not at liberty in the normal sense. If state law entitles an inmate to release on parole, moreover, that entitlement is a liberty interest which is not to be taken away without due process. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the context of a statute providing that the Nebraska parole board "shall" release parole-eligible inmates unless one of several factors specified in the statute should be found to exist.

The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner "must, instead, have a legitimate claim of entitlement to it." Id. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). And only state law can create this "legitimate claim of entitlement;" the federal constitution protects such claims, but does not create them. "There is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104.

II

The law of Ohio gives a convicted person no legitimate claim of "entitlement" to parole before the expiration of a valid sentence of imprisonment. This remains true even after the Ohio Adult Parole Authority has approved the prisoner's release on parole on or after a specified date. Thus in Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), a post- Greenholtz case, the Supreme Court of the United States squarely held that the Ohio Adult Parole Authority's rescission of a decision to grant parole on or after a specified date did not constitute a deprivation of "liberty" within the meaning of that term as used in the Due Process Clause.

There has been no relevant change in Ohio's law since the decision in Jago. That case, unlike this one, happened to involve "shock" parole, but nothing turns on the distinction. This court has recognized ever since Greenholtz that Ohio Rev.Code Sec. 2967.03--the statute under which the plaintiffs in the instant case hope to be released--"is purely discretionary." Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979).

The statute says that the Ohio Adult Parole Authority "may ... grant a parole to any prisoner, if in its judgment there is reasonable ground to believe that, if ... the prisoner is paroled, such action would further the interests of justice and be consistent with the welfare and security of society." Ohio Rev.Code Sec. 2967.03 (emphasis supplied). The grant of discretion contained in this statute is, obviously, very broad indeed. The operative verb is permissive, not mandatory; to say that the Adult Parole Authority "may grant" parole is not to say that it must grant parole.

There are regulations, as we shall see, that prescribe certain limitations on the affirmative power to grant parole, but those limitations in no way detract from the fact that under Ohio's system, as in the situation considered by the Supreme Court in Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983), the decisionmaker "can deny the requested relief for any constitutionally permissible reason or for no reason at all." Id. (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring)) (emphasis supplied). Where the power of denial is this broad, "the State has not created a constitutionally protected liberty interest." Olim, 461 U.S. at 249, 103 S.Ct. at 1747.

The Sixth Circuit decision that was before the Supreme Court for review in Jago--a decision reported at 641 F.2d 411 (1981)--acknowledged, as the Supreme Court noted (454 U.S. at 16, 102 S.Ct. at 33), that "[p]arole for Ohio prisoners lies wholly within the discretion of the [Ohio Adult Parole Authority]," and that "[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d at 414. Although a majority of the Sixth Circuit panel nonetheless concluded that a constitutionally protected liberty interest could arise from "mutually explicit understandings," id. at 416, this conclusion was rejected by the Supreme Court: "We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon ... 'mutually explicit understandings'...." Jago, 454 U.S. at 17, 102 S.Ct. at 34.

We do not doubt that in the case at bar it was understood by all concerned that the plaintiffs would be released around the time of their on or after dates, assuming out-of-prison placements acceptable to the Parole Supervision Section could be found. The record does not disclose what understanding, if any, the parole authorities may have had as to the likelihood that acceptable placements could be found. The plaintiffs themselves, however, may well have understood that they were likely to be released--and we can appreciate their disappointment that the hopes and expectations attendant upon the setting of on or after dates should have been frustrated. But as the Supreme Court explicitly told us in Jago, it would be wrong to find that understandings based on the setting of on or after dates can create any constitutionally protected liberty interest.

Although the power to deny parole is purely discretionary as far as Ohio's statutes are concerned, the state's administrative regulations must also be considered. If Ohio's regulations created an explicit presumption of entitlement to release on parole--as Tennessee's regulations formerly did, see Mayes v. Trammell, 751 F.2d 175,...