Watson v. DiSabato

• Decision Date: 10 July 1996
• Docket Number: Civil Action No. 93-4437(JCL).
• Citation: 933 F. Supp. 390
• Parties: Hubert WATSON, Plaintiff, v. Mary DiSABATO and Arthur Jones, Defendants.
• Court: U.S. District Court — District of New Jersey

933 F. Supp. 390

Hubert WATSON, Plaintiff, v. Mary DiSABATO and Arthur Jones, Defendants.

Civil Action No. 93-4437(JCL).

United States District Court, D. New Jersey.

July 10, 1996.

Hubert Watson, Marlboro, NJ, Pro Se.

Michael Carlin, Deputy Atty. Gen., Office of the Attorney General of New Jersey, Trenton, NJ, for Defendant.

OPINION

LIFLAND, District Judge.

Defendants, sued in their individual capacities,¹ move for summary judgment pursuant to Fed.R.Civ.P. 56, a motion Hubert Watson does not formally oppose. For the reasons set forth below, the Court will grant the defendants' motion in part and deny it in part.

BACKGROUND

The relevant background information is set forth in the Court's Memorandum and Order dated April 29, 1994. The developments that have occurred since then are summarized below.

On September 12, 1995, the Court decided defendants' initial motion for summary judgment, holding that Watson's claim concerning the defendants' May 17, 1991 denial of parole was time-barred. In addition, the Court granted summary judgment as to Watson's claim that the Adult Panel impermissibly considered his past criminal history in denying him parole. However, the Court denied the motion for summary judgment as to his claims that he was impermissibly denied parole on February 3, 1992 and January 22, 1993, and forced to serve his maximum sentence. It is at these claims that the defendants take aim by this motion.

DISCUSSION

Fed.R.Civ.P. 56(c) provides that summary judgment shall be granted:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Once the moving party has shown that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 106 S.Ct. 2548, 2552-2554, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). There is no issue for trial unless the non-moving party can demonstrate that there is sufficient evidence favoring the non-moving party to enable a reasonable fact finder to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-2511. The court must view the facts and inferences therefrom in the light most favorable to the nonmoving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

The Liberty Interest Created by the Parole Act

Watson brought this suit under 42 U.S.C. § 1983, a Reconstruction Era statute that created a cause of action for those claiming that a person acting under color of state law has violated the Constitution or laws of the United States. Thus, we must first determine whether the conduct Watson challenges violated federal law, that is, whether DiSabato and Jones infringed Watson's constitutional rights in the manner by which they denied him parole, and by forcing him to serve his maximum sentence.

Because there is no constitutional or inherent right to parole, a state may, but need not, establish a system by which a prisoner is released conditionally before the expiration of his term. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-2104, 60 L.Ed.2d 668 (1979). But in Greenholtz the Supreme Court held that a state parole statute can create an entitlement protected by the Due Process Clause. The unique structure and language of the Nebraska statute challenged in Greenholtz created not merely a possibility but an "expectancy of release" that warranted the procedural safeguards of the Due Process Clause. Id.; see Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). The New Jersey parole statute contains the same "shall" and "unless" language that Greenholtz and Allen held created an expectation of release:

An adult inmate shall be released on parole at the time of parole eligibility, unless information ... indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.

N.J.S.A. § 30:4-123.53(a). In light of this language, federal and state courts in New Jersey have construed New Jersey's parole statute to give rise to an expectancy of release similar to that first described in Greenholtz. "The New Jersey Parole Act of 1979, set out in N.J.S.A. §§ 30:4-123.45 to .69, creates `a sufficient expectation of parole eligibility to entitle prisoners to some measure of constitutional protection with respect to parole eligibility decisions.'" Williams v. New Jersey State Parole Board, 1992 WL 32329, *2 (D.N.J. Feb. 4, 1992) (quoting New Jersey State Parole Board v. Byrne, 93 N.J. 192, 203, 460 A.2d 103 (1983)), aff'd, 975 F.2d 1553 (3d Cir.1992).

However, in Sandin v. Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a case dealing with prison disciplinary proceedings, the Supreme Court criticized the methodology used in Greenholtz, Allen, and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), a methodology that tended to overlook the nature of the alleged deprivation and focus instead on the language used in a statute or regulation. Decisions that ascribed talismanic importance to "discretion-cabining" language in prisoner regulations have, the Court explained, "strayed from the real concerns undergirding the liberty protected by the Due Process Clause." ___ U.S. at ___, 115 S.Ct. at 2300. Furthermore, allowing the existence of a state-created liberty interest to turn on whether a statute contained mandatory language "created disincentives for States to codify prison management procedures in the interest of uniform treatment ... and has led to the involvement of the federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at ___, 115 S.Ct. at 2299.

While state laws after Sandin may still create liberty interests protected by the Due Process Clause, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at ___, 115 S.Ct. at 2300 (internal citations omitted). The intended scope of this language is unclear. See id. at ___, 115 S.Ct. at 2306 (Breyer, J., dissenting). Is a denial of the process mandated by a state parole statute an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life"? Sandin intimates that it might be since the Court carefully distinguished the disciplinary procedure challenged in that case from situations like parole "where the State's action will inevitably affect the duration of an inmate's sentence." Id. at ___, 115 S.Ct. at 2302. Moreover, Sandin did not overrule Greenholtz and, in fact, favorably cited Allen. See id. and n. 5. Conceding the uncertain status of Greenholtz and Allen, the Court agrees with the D.C. Circuit that "we must follow Greenholtz and Allen, because, unlike Sandin, they are directly on point. Both cases dealt with a prisoner's liberty interest in parole; Sandin did not." Ellis v. District of Columbia, 84 F.3d 1413, 1418 (D.C.Cir.1996). See Wilson v. Kelkhoff, 86 F.3d 1438, 1446 (7th Cir.1996) ("It appears that the Court intended to leave undisturbed the cases holding that a protectable liberty interest exists in parole statutes that create an `expectancy of release.'"); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.1995) (In dicta, the Court observed that "Orellana's claims might have implicated the narrow range of prisoner liberty interests remaining after Sandin because he challenged procedures relative to parole, which affect the duration of confinement."), cert. denied, ___ U.S. ___, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996); Quartararo v. Catterson, 917 F.Supp. 919, 938-939 (E.D.N.Y.1996); Cf. Henry v. Sanchez, 923 F.Supp. 1266 (C.D.Cal.1996). The Court therefore concludes that Greenholtz, Allen, Williams and Byrne remain good law after Sandin.²

The Requirements of Due Process

Concluding that a prisoner has a liberty interest in parole decisions, the Court must still consider what process is due. To answer this question, we must assess and balance the competing interests of the prisoner and the state. As explained in Byrne,

The joint interests of society and the prisoner in basic fairness require some measure of protection from gross miscarriages of justice and totally arbitrary action.... Only a few, basic procedures are required to deal with the risks of erroneous or arbitrary determinations in this context.

Williams, 1992 WL 32329 at *3 (quoting Byrne, 93 N.J. at 211). Williams emphasized that due process is a flexible concept that varies "as the particular situation demands." Williams, 1992 WL 32329 at *3. In this particular context, the process required is notice of the pendency of the parole determination, a statement by the government showing that the prisoner is substantially likely to recidivate, and an opportunity for the prisoner to submit a written response to the state's reasons. See Byrne, 93 N.J. at 211; Williams, 1992 WL 32329 at *3.

The Denial of Parole on January 22, 1993

The record reflects that Watson received an explanation as to why he fell short of qualifying for parole. The Board's notice of...