Johnson v. Pfeiffer, 86-1438

• Decision Date: 17 July 1987
• Docket Number: No. 86-1438,86-1438
• Citation: 821 F.2d 1120
• Parties: Daniel JOHNSON, Plaintiff-Appellant, v. Neal PFEIFFER, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1120

821 F.2d 1120

Daniel JOHNSON, Plaintiff-Appellant, v. Neal PFEIFFER, et al., Defendants-Appellees.

No. 86-1438

Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 17, 1987.

Daniel Johnson, pro se.

Rowena Mira Young, Jim Mattox, Attys. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Alleging that the state parole board applies unconstitutional criteria in making parole determinations, a Texas inmate seeking class action certification and declaratory relief appeals from an order of the district court dismissing his complaint for failure to state a claim upon which relief can be granted and for failure to exhaust state remedies.

I.

Daniel Johnson, an inmate of the Texas Department of Corrections (TDC) in Huntsville, Texas, proceeding pro se, filed this 42 U.S.C. Sec. 1983 action against the State of Texas and several members of the Texas Board of Pardons and Paroles, contending that certain customs, policies, and practices the defendants use to make parole decisions violate prisoners' rights under the first, eighth, ninth, and fourteenth amendments of the United States Constitution. Specifically, he contends that the defendants retaliate against inmates who, like himself, file civil rights actions against TDC employees by inflicting upon them harsher treatment in parole consideration than is given other similarly situated TDC inmates. He also asserts that the defendants invidiously discriminate against prisoners who are not Texas residents--and, therefore, not eligible for furloughs--by considering the prior award of furloughs as a factor favoring parole. This practice, he contends, denies nonresident inmates their constitutional rights to equal protection and equal privileges and immunities. Finally, Johnson contends that the defendants improperly utilize ill-founded and, often, vindictive protest letters from state judges, prosecutors, and law enforcement officials who participated in prisoners' original arrests, trial and convictions when making parole determinations. He, therefore, seeks class certification, appointment of counsel, and a judgment declaring the defendants' actions unconstitutional.

Adopting the recommendations of the United States magistrate, the district court construed Johnson's challenge to the Parole Board's use of furloughs as a factor favoring parole to be an attack on the policy of excluding nonresident inmates from furlough eligibility. Because under Texas law ¹ the Texas Department of Corrections, not the Parole Board, has sole authority to grant or deny furloughs and because the Department of Corrections was not named party to Johnson's suit, Johnson's challenge to the use of furloughs as a parole criterion was dismissed for failure to state a claim upon which relief could be granted. Noting that eligibility for discretionary parole does not create a liberty interest entitled to protection under the due process clause, ² the district court also dismissed Johnson's claim concerning protest letters from state officials and allegedly false information in TDC files for the same reason. Finally, the court dismissed Johnson's claims regarding systemic Parole Board retaliation against prisoner "writ- writers" on the ground that it was, in reality, an attack on the fact that Johnson was denied parole and, as such, must be pursued through habeas corpus with the attendant requirement of exhaustion of state remedies. ³ Finding that the district court misconstrued Johnson's complaint, we reverse.

II.

A pro se complaint must be held to less rigorous standards than pleadings prepared by lawyers and can be dismissed for failure to state a claim only if it appears " 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " ⁴ Johnson's complaint passes this muster. Although his particular challenge to the use of furloughs as a parole criterion might be understood on its face to complain about nonresident inmates' ineligibility for such privileges, it can be construed at least as easily to attack only the fact that Parole Board consideration of furloughs provides resident inmates an unfair advantage in parole consideration. The fact that Johnson did not intend to challenge denial of furloughs to nonresidents per se is made clearer by his refusal to make the Texas Department of Corrections a party in this suit and by his able explanation to the lower court of his failure to do so. Johnson there stated that he was challenging only the Parole Board's use of furloughs as a criterion for making parole determinations.

Johnson's challenge to the use of furloughs as a parole criterion also is not defeated by the fact that prisoners do not have a constitutionally protected liberty interest in discretionary parole. Johnson does not claim that the procedure has denied him life, liberty, or property without due process. He contends that the Parole Board's procedure denies inmates like him equal protection and the privileges and immunities that it grants its own residents. Although the fourteenth amendment assures due process only if the state deprives a person of life, liberty, or property, it assures equal protection against all kinds of invidious state action, even those discriminations that do not encroach on liberty or property. ⁵ If Johnson can prove his allegations, he may be entitled to the declaratory relief he seeks.

Similarly, Johnson's claim concerning Parole Board reliance on unreliable, malicious or irrelevant protest letters and false information in TDC files is not based on the existence of an entitlement to parole release. It appears instead to be based primarily on an ill-defined equal protection argument advanced in behalf of all prisoners for whom "discretionary" use of protest letters in parole determinations in fact represented invidious discrimination. Superimposed over this claim appears to be both a more narrowly defined claim that writ writers are among the groups of inmates denied equal protection in this manner and a related due process claim contending that use of such letters infringes on writ writers' freedom of speech without due process.

In an effort to support the district court's judgment regarding the Parole Board's "discretionary" use of protest letters on grounds not stated by that court, the defendants suggest that Johnson has failed to allege sufficient facts to state a claim. Noting that the fourteenth amendment guarantees "equal laws, not equal results," ⁶ they argue that a rule permitting such discretion, if applied evenly, presents no constitutional problem. We agree, but note that Johnson's allegations do raise suggestions of invidious, group-based discrimination and infringement of fundamental rights. Moreover, our review of the record does not suggest that Johnson has been previously made aware of these shortcomings in his complaint. Because those shortcomings did not form the basis of the district court's decision, and because we cannot state with certainty that Johnson could state no set of facts relevant to the Parole Board's discretionary use of protest letters sufficient to state an equal protection or due process claim were he permitted to amend, ⁷ dismissal of this claim was premature. On remand, therefore, Johnson should be provided an opportunity to clarify the legal and factual basis of his protest letter claim. We intimate, of course, no opinion concerning the possibility of his stating a claim for which relief might be granted, or, if he does, the merits of that claim.

The district court's determination that Johnson's claims are...