Johnston v. Alabama Pardon & Parole Bd., Civ. A. No. 81-474-N.

• Court: United States District Courts. 11th Circuit. Middle District of Alabama
• Writing for the Court: Charles Gary Johnston, pro se
• Citation: 530 F. Supp. 589
• Parties: Charles Gary JOHNSTON, Plaintiff, v. ALABAMA PARDON AND PAROLE BOARD et al., Defendants.
• Docket Number: Civ. A. No. 81-474-N.
• Decision Date: 18 January 1982

530 F. Supp. 589

Charles Gary JOHNSTON, Plaintiff,
v.
ALABAMA PARDON AND PAROLE BOARD et al., Defendants.

Civ. A. No. 81-474-N.

United States District Court, M. D. Alabama, N. D.

January 18, 1982.

Charles Gary Johnston, pro se.

Charles Graddick, Atty. Gen., Richard N. Meadows, Asst. Atty. Gen., Montgomery, Ala., for defendants.

MEMORANDUM OPINION

HOBBS, District Judge.

The above styled cause is now before the Court on defendants' motion for summary judgment, filed herein October 7, 1981. Defendants have submitted an affidavit and a certified copy of records in support of their motion for summary judgment. Plaintiff has submitted a sworn response in opposition to defendants' motion. Upon careful consideration of defendants' motion, the Court is of the opinion that defendants' motion for summary judgment is due to be granted.

Plaintiff, an inmate who is proceeding pro se, filed this 42 U.S.C. Sec. 1983 action against the State of Alabama Board of Pardons and Paroles and the individual members of the Board alleging that defendants violated his constitutional rights in refusing to grant him a hearing and by denying his parole. Plaintiff also alleges that another inmate serving a life sentence and with a prior escape on his record was paroled and plaintiff was denied parole. Defendants have submitted the affidavit of David H. Williams, Executive Director of the Board of Pardons and Paroles, in which Mr. Williams states that plaintiff has been set for parole consideration several times, but due to prison disciplinary infractions plaintiff has been denied parole and reset for parole consideration. Defendants have also submitted a certified copy of the Board record indicating various reasons for plaintiff's parole denial. Defendants contend that plaintiff is not entitled to the constitutional protections of due process in regard to consideration for parole since Alabama law does not create an expectancy of release. Plaintiff has responded to defendants' motion by generally refuting defendants' contentions.

The issue of an inmate's entitlement to the constitutional protections of due process in regard to consideration for parole was addressed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Supreme Court in Greenholtz held that a statutory provision that holds out the

530 F. Supp. 590

mere possibility of parole does not create a liberty interest entitled to the protection of due process. Id. at 11, 99 S.Ct. at 2105-06. In that case, however, the Supreme Court found that the unique structure and language of the Nebraska parole statute provided an expectation of parole sufficient to create a liberty interest entitled to constitutional protection. Id. at 12, 99 S.Ct. at 2106. Since the Supreme Court emphasized the unique structure and language of the Nebraska statute and the need for a case by case analysis of whether other state parole statutes provide a protectible...