Lemley v. Bowers

• Decision Date: 16 December 1992
• Docket Number: No. 1:92-CV-258-RHH.,1:92-CV-258-RHH.
• Citation: 813 F. Supp. 814
• Parties: Melvin B. LEMLEY v. Michael J. BOWERS, et al.
• Court: U.S. District Court — Northern District of Georgia

813 F. Supp. 814

Melvin B. LEMLEY v. Michael J. BOWERS, et al.

No. 1:92-CV-258-RHH.

United States District Court, N.D. Georgia, Atlanta Division.

December 16, 1992.

Melvin B. Lemley, pro se.

Daryl Alan Robinson, Melissa Jane Lunsford, Office of State Atty. Gen., Atlanta, GA, for defendants.

ORDER

ROBERT H. HALL, District Judge.

This case is before the Court on Plaintiff's Motion for Summary Judgment 12, Plaintiff's Motion to Extend Time to File a Pre-Trial Order 15, Plaintiff's Motion for a Refund of his Filing Fee 16, and Defendants' Motion for Summary Judgment 13. The Court has jurisdiction pursuant to 28 U.S.C. § 1343. The Court DENIES Plaintiff's Motion for Summary Judgment, DENIES Plaintiff's Motion to Extend Time to File a Pre-Trial Order, and GRANTS Plaintiff's Motion for a Refund of his Filing Fee. The Court also GRANTS Defendant's Motion for Summary Judgment.

BACKGROUND

Plaintiff, Melvin B. Lemley, an inmate at Georgia State Prison in Reidsville, Georgia, brings this suit against Defendants, Michael J. Bowers, Georgia State Attorney General since August 1, 1981; Mamie B. Reese and Mobley Howell, members of the Georgia Board of Pardons and Paroles (the "Board") in 1979 and 1985; Michael H. Wing, a member of the Board in 1985; James T. Morris, Chairman of the Board in 1979; Wayne Snow, Jr., Chairman of the Board in 1985; and other possible John Does and Jane Roes, in their official and individual capacities. Plaintiff alleges that Defendants Reese, Howell, Wing, Morris and Snow deprived him of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution, and violated his constitutional protection against ex post facto laws by denying him parole reconsideration hearings in 1986, 1987, 1988, 1989 and 1990, and by failing to interview him in conjunction with his 1991 parole hearing. Plaintiff also alleges that Defendant Bowers "advised, agreed with and combined together with" the board members "to change the parole rules/guidelines in 1979 and 1985" and to apply the changes to Plaintiff. Plaintiff requests that the Court award him two million dollars in compensatory damages, two million dollars in punitive damages, and all reasonable attorney's fees. Plaintiff does not seek injunctive relief.

Plaintiff was arrested for a crime that he committed in September, 1978, and was sentenced, in April, 1979, to a term of life in prison. When Plaintiff committed his crime, the Board's rules and regulations (the "Board rules" or "rules") required the Board to consider an inmate serving a life term for parole initially after serving seven years of his life sentence.¹ If the Board denied an inmate parole at this initial hearing, the rules required the Board thereafter to hold an annual hearing to reconsider its parole decision.² In December 1979, the Board amended its rules to provide for a reconsideration hearing at least every three years after a denial of parole. In 1985, the Board amended its rules again, this time to provide for a reconsideration hearing at least every eight years. In September 1985, the Board held Plaintiff's initial parole hearing and denied him parole. The Board then notified Plaintiff that it would not reconsider him for parole until September, 1993—eight years later.

In February, 1991, the United States Court of Appeals for the Eleventh Circuit ruled that application of the 1985 amendment to the Board rules (and, by implication, application of the 1979 amendment to the Board rules) to an inmate who committed his crime prior to that date violates the Constitution's ex post facto clause. Akins v. Snow, 922 F.2d 1558, 1564 (11th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 2915, 115 L.Ed.2d 1079 (1991). Apparently in response to the court's decision in Akins, the Board, in November 1991, reconsidered Plaintiff's 1985 parole denial. Plaintiff alleges, however, that the Board reconsidered his denial without interviewing him, and without investigating his "parole plan". Complaint, ¶ 53. Defendants deny Plaintiff's allegation. Answer, ¶ 3.

Plaintiff filed his Complaint on January 8, 1992, and moved for summary judgment on August 28, 1992. Defendants then moved for summary judgment on September 9, 1992. Finally, Plaintiff moved on October 2, 1992 for a refund of his filing fee, and for an extension of time to file his pre-trial order.

DISCUSSION

I. Plaintiff's and Defendants' Motions for Summary Judgment.

A. Standard of Review for Summary Judgment Motion.

This Court will grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In cases where the movant is the plaintiff, that party must demonstrate the absence of an issue of material fact with regard to every element essential to his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). In contrast, where the movant is the defendant, that party must demonstrate that the nonmoving party, the plaintiff, lacks evidence to support an essential element of her or his claim. Id. The movant's burden is "discharged by showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. However, it is not enough in most situations for the movant merely to point out to the court this absence of evidence. Id. 477 U.S. at 323, 106 S.Ct. at 2552; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Rather, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c)).

Only after the movant meets its initial burden does any obligation on the part of the nonmovant arise. Id.; Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Clark, 929 F.2d at 608. Nevertheless, once the movant has met this initial burden, the opposing party must present evidence establishing a material issue of fact. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. The nonmoving party must go "beyond the pleadings" and present evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553.

All evidence and factual inferences should be viewed in the light most favorable to the nonmoving party. Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.1987). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue is not genuine if it is unsupported by evidence or is created by evidence that is "merely colorable" or "not significantly probative." Id. at 249-50, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248, 106 S.Ct. at 2510. Thus, to survive a motion for summary judgment, the nonmoving party must come forward with specific evidence of every element essential to his or her case so as to create a genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; Rollins, 833 F.2d at 1528.

B. Application

1. Plaintiff's Claim Against Defendant Bowers.

Defendant Bowers contends that he is not liable to Plaintiff for the 1979 change in the Board rules because he was not the Attorney General at that time; the 1985 change because his actions did not deprive Plaintiff of any right; and the application of the changed rules to Plaintiff because he did not participate with the Board in applying the rules to Plaintiff's parole application. Plaintiff has offered no argument or evidence in opposition to any of these contentions.

The Court finds that Defendant Bowers is not liable to Plaintiff for the 1979 changes because he was not the Attorney General at that time. The Court also finds that Bowers is not liable for the 1985 changes because the mere act of advising changes to the Board rules could not deprive Plaintiff of any right. As for Plaintiff's allegation that Bowers "applied" those changes to Plaintiff, Plaintiff has offered no evidence that Bowers participated in the Board's evaluation of his application. Absent such evidence the Court must assume that Bowers did not act beyond the scope of his authority, and, thus, did not involve himself in any aspect of the Board's consideration of Plaintiff's application. The Court, therefore, grants Defendant Bower's Motion for Summary Judgment.

2. Plaintiff's Claims Against Defendants in Their Official Capacities.

The Eleventh Amendment to the United States Constitution prohibits a plaintiff from suing a state and its agencies in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). Furthermore, "the Eleventh Amendment bars a suit against state officials when `the state is the real, substantial party in interest.'" Id. at 101, 104 S.Ct. at 908 (quoting Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)) (other citations omitted). See also, Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985) ("The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua...