Whitehorn v. Harrelson

• Citation: 758 F.2d 1416
• Decision Date: 25 April 1985
• Docket Number: No. 83-7615,83-7615
• Parties: Bruce Talmadge WHITEHORN, Plaintiff-Appellant, v. E.L. HARRELSON; Mr. Green; D. Foster, E. Potts, Counselors, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1416

758 F.2d 1416

Bruce Talmadge WHITEHORN, Plaintiff-Appellant, v. E.L. HARRELSON; Mr. Green; D. Foster, E. Potts, Counselors, Defendants-Appellees.

No. 83-7615.

United States Court of Appeals, Eleventh Circuit.

April 25, 1985.

Delores R. Boyd, Montgomery, Ala., for plaintiff-appellant.

Jack M. Curtis, Asst. Atty. Gen., Montgomery, Ala., for defendants-appellees.

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

Before HILL and HENDERSON, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

WISDOM, Senior Circuit Judge:

This appeal raises for the first time in the Eleventh Circuit the issue whether a lawfully confined prisoner has a constitutionally protected liberty interest in his continued participation in the Alabama work release program. The district court, apparently reluctantly, ¹ granted summary judgment in favor of the defendants, employees of the Alabama Department of Corrections, holding that the plaintiff, Bruce Talmadge Whitehorn, had no protected interest in participating in the Alabama work release program. The proper inquiry, however, is not whether the plaintiff had a protected liberty interest in his work release eligibility determination, but whether he had a constitutionally protected liberty interest in his continued participation in the Alabama work release program. Because we determine that there are disputed questions of fact material to this issue, we remand for a full trial on the merits.

I.

In June 1981 Whitehorn was placed in the Alabama work release program ² and assigned to the Montgomery Work Release Center. He obtained employment at Jane's Home, a licensed home for senior citizens, and remained in its employ until his removal from work release in February 1983. On February 1, 1983, the Department of Corrections removed the plaintiff from the work release center and placed him in the Kilby Correctional Facility. At the time, the Department notified him that he was being transferred pending an investigation by the Department and by the Montgomery Police Department. The notice made no reference to the subject matter of the investigation.

On completion of the investigation, February 4, 1983, the Montgomery Police Department filed no charges against Whitehorn. The Alabama Department of Corrections did, however, serve Whitehorn with a "Major Disciplinary" charge, alleging that he manipulated the "money policy" in violation of Rule 27 of the Rules for Community Based Residents. ³ On February 9, 1983, a three-member prison disciplinary committee conducted a hearing at which only the police officer who investigated the alleged violation, the plaintiff, and the plaintiff's employer testified. The committee concluded that Whitehorn had violated Rule 27 as charged and it recommended that he lose four months good time, be permanently removed from work release, and be considered for an increase in custody. The work release director concurred in the committee's recommendations.

Whitehorn filed his pro se complaint in the United States District Court for the Middle District of Alabama on June 3, 1983, seeking injunctive relief and compensatory and punitive damages under 42 U.S.C. Sec. 1983 (1982). The complaint alleged that the defendants ⁴ had unlawfully terminated Whitehorn's participation in the Alabama work release program in violation of the eighth and fourteenth amendments to the United States Constitution. On July 8, 1983, the district court entered an order requesting the defendants to file a special report answering Whitehorn's allegations. The defendants filed the special report with accompanying affidavits on August 8, 1983. By order dated August 11, 1983, the district court converted the defendants' special report to a motion for summary judgment and gave Whitehorn additional time to respond to the motion. Whitehorn filed a timely response including exhibits and affidavits to refute the defendants' factual allegations.

On September 30, 1983, the district court entered summary judgment in favor of the defendants. The court held that Whitehorn could not, as a matter of law, prevail in the action; he had failed to show that he had been deprived of any protected liberty interest. The court stated:

In order to prevail, plaintiff must first show that he has been deprived of some protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 558 [94 S.Ct. 2963, 2975, 41 L.Ed.2d 935] (1973 [1974]. A protected interest in a work release program will arise if the rules governing the program create an entitlement to participation in the program. This may occur where the rules create objective qualifications for the programs, so that a prisoner looking at the rules might expect himself to be qualified. Winsett v. McGinnes, 617 F.2d 996, 1005-06, (3d Cir.1980), cert. denied, 449 U.S. 1093 [101 S.Ct. 891, 66 L.Ed.2d 822] (1981). If participation is left to the discretion of the authorities, however, no entitlement arises. Smith v. Saxbe, 562 F.2d 729, 734 (D.C.Cir.1977).

Order of the District Court dated September 30, 1983, at 1-2. The court then examined the Alabama statute establishing work release for Alabama inmates, which authorizes the Board of Corrections, at its discretion, to allow inmates "as to whom there is reasonable cause to believe [the Board] will know [the prisoner's] trust" to participate in the work release program. Ala.Code Sec. 14-8-2(a) (1975). The court concluded that the statute did not limit the Board's discretion to determine who would be eligible to participate in the work release program; therefore, the plaintiff had no protected interest in participating in the program. Id. at 2.

In his appellate brief submitted by appointed counsel, Whitehorn asserts that although the district court correctly determined that, in order to prevail, the plaintiff must make a preliminary showing that he was deprived of a protected liberty interest, the court erred in too narrowly circumscribing the source and the nature of the plaintiff's alleged liberty interest. First, Whitehorn contends that the court should have looked not only to the Alabama statute but to the regulations carrying out the statute and to the practices of the prison administration in operating the work release program as well to determine whether any of these sources created a constitutionally protected liberty interest. Second, Whitehorn contends that the relevant inquiry is not whether he had a liberty interest in the initial determination of eligibility for work release, but whether his continuing work release status could be revoked without due process protections. We agree. Accordingly, our inquiry on appeal must be whether the Constitution itself or the State of Alabama, through its statutes, regulations, or practices, has created a liberty interest in a prisoner's continued participation in the work release program.

II.

A section 1983 claim is conditioned on two essential elements: first, the conduct complained of must have been committed by a person acting under color of state law; second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or the laws of the United States. 42 U.S.C. Sec. 1983 (1982) ⁵; see also, e.g., Parratt v. Taylor, 1982, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420. It is undisputed that the defendants in the instant case were acting under color of state law in revoking the plaintiff's work release status. As correctly noted by the district court judge, the threshold question in this case, therefore, is whether the plaintiff has been deprived of a liberty or property interest secured by the Constitution or laws of the United States. See Staton v. Wainwright, 5 Cir.1982, ⁶ 665 F.2d 686, 687, cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166.

Whitehorn asserts that he was deprived of his right to continued participation in the Alabama work release program without due process of law. He contends that his right to remain in the program derives both from the due process clause itself and from the laws of Alabama.

In only a few limited circumstances has the Supreme Court recognized a liberty interest inherent in the Constitution itself in favor of a prisoner whose original confinement was lawful. A liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional, freedom ⁷ such that "the loss of liberty entailed [by its revocation] is a serious deprivation requiring that the [prisoner] be accorded due process". Gagnon v. Scarpelli, 1973, 411 U.S. 778, 781, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656. Interests recognized by the Supreme Court that fall within this category include the revocation of parole, Morrissey v. Brewer, 1972, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and the revocation of probation, Gagnon v. Scarpelli, 411 U.S. at 778, 93 S.Ct. at 1756. The Court has also recognized a protected liberty interest derived from the due process clause itself when a prisoner is deprived of a liberty interest that was not extinguished upon the prisoner's conviction and sentencing. In Vitek v. Jones, 1980, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552, the Court held that a prisoner has a liberty interest inherent in the Constitution itself entitling him to due process protections before he could be involuntarily transferred from prison to a mental hospital. The Court has consistently refused to recognize liberty interests arising from the Constitution itself in situations involving the alteration of a more conditional right or status afforded a lawfully confined prisoner.

The Court's recent decisions emphasize that "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause does not in and of itself subject an inmate's treatment by prison authorities to judicial...