Osborne v. Folmar, 84-7022

• Decision Date: 06 July 1984
• Docket Number: No. 84-7022,84-7022
• Citation: 735 F.2d 1316
• Parties: Richard L. OSBORNE, Plaintiff-Appellant, v. Emory FOLMAR, individually and as Mayor of Montgomery, Alabama, and the City of Montgomery, Alabama, a municipal corporation, Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1316

735 F.2d 1316

Richard L. OSBORNE, Plaintiff-Appellant, v. Emory FOLMAR, individually and as Mayor of Montgomery Alabama, and the City of Montgomery, Alabama, a municipal corporation, Defendants-Appellees.

No. 84-7022

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

July 6, 1984.

Jack Drake, Tuscaloosa, Ala., John L. Carroll, Mandell & Boyd, Montgomery, Ala., for plaintiff-appellant.

Robert C. Black, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.

PER CURIAM:

Richard Osborne brought this 42 U.S.C. Sec. 1983 action against Emory Folmar, Mayor of Montgomery, Alabama, seeking compensatory and punitive damages. We set out in the margin the relevant parts of the complaint. ¹

The district court dismissed Osborne's action. The court concluded that, because "Plaintiff had no constitutional right to have Mayor Folmar exercise his pardon power in any particular way," under Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981), Osborne had no claim against Folmar. The lack of any liberty interest in or right or entitlement to the exercise of the pardon power in any particular way, as the district court correctly notes, disposes of the procedural due process claim under Dumschat. See id. at 465-67, 101 S.Ct. at 2464-2465; Smith v. Snow, 722 F.2d 630, 631-32 (11th Cir.1983) (rejecting due process and eighth amendment challenge to decision of Georgia Board of Pardons and Paroles); Ala.Code Sec. 12-14-15 (1977) ("mayor ... may grant pardons) (emphasis added); Montgomery, Ala., Code Sec. 26-17 (1980) (same).

Osborne correctly points out, however, that Dumschat does not answer the equal protection inquiry. In that case to the statement that "pardon and commutation decisions have not traditionally been the business of courts; as such they are rarely, if ever, appropriate subjects for judicial review," the Court footnoted that "[r]espondents have not raised any equal protection claim." 452 U.S. at 464 & n. 9, 101 S.Ct. at 2464 & n. 9. At most the Court implicitly recognized that a person could challenge such a decision on equal protection grounds; at least the Court left the question open.

In Cruz v. Skelton, 543 F.2d 86, 91 (5th Cir.1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977), the court considered an equal protection challenge to a parole decision alleging geographic discrimination. The court, finding no factual basis alleged in support of the charges, rejected the claim. But the court noted that "Cruz alleges no 'invidious discrimination' based on such considerations as race, religion, national origin, or poverty against inmates of the Ellis unit." Id. at 92.

Similarly, the Tenth Circuit in Candelaria v. Griffin, 641 F.2d 868, 870 (10th Cir.1981), held that the absence of a liberty interest disposed of the prisoner's due process claim but further stated that "[t]he absence of a liberty interest, however, does not deprive plaintiff of his right to the equal protection of the laws. His [the prisoner's] claim that he was denied a genuine opportunity for parole because he is Hispanic is not frivolous on its face and has not yet been adequately considered." Id.

In Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), the Court distinguished between the lack of any right to a benefit and the use of impermissible reasons to deny such a benefit:

[E]ven though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests ....

Thus we conclude that a person may challenge a pardon or parole decision on equal protection grounds though he asserts a due process claim that fails.

The district court did not consider the equal protection claim, and we remand the case in order that it may do so. In doing so we neither hold nor imply that the equal protection assertions state a claim on which relief can be granted, a question raised by defendants' motion to dismiss but not addressed. This issue is for the district court to decide. Costs are to be taxed to appellees.

VACATED and REMANDED.

1 (1) Jurisdiction of this action is based on 28 U.S.C. Sec. 1343(3) and (4) and is brought pursuant to 42 U.S.C. Sec. 1983. Attorneys fees are requested pursuant to 42 U.S.C. Sec. 1988.

(2) Richard Osborne is over the age of nineteen (19) years and resides in Greene County, Alabama.

(3) Emory Folmar resides in...