Thomas v. Sellers

¶5PER CURIAM:

¶6In 1977, John Cook Thomas was sentenced to eight years in jail on a Mobile County, Alabama burglary charge. After a successful appeal and upon being re-tried he received a sentence of five years on this charge. Considering this conviction alone, appellant was scheduled for a hearing before the Alabama Board of Pardons and Paroles in January, 1979. That date was set based on appellant having served one-third of his Mobile sentence. Appellant was not aware that this date had been set. After setting the hearing date, the Board learned that Thomas had been convicted of grand larceny in Tallapoosa County, Alabama in April, 1978 and received an eight year sentence to run concurrently with the earlier conviction. When the Board was informed of the Tallapoosa County conviction, the date the appellant would be eligible for parole was re-determined and the hearing before the Board was rescheduled for March, 1981.

¶7*488Thomas filed this pro se action pursuant to 42 U.S.C. § 1983 against Sara Cousins Sellers, Chairman of the Alabama Board of Pardons and Paroles. Thomas alleged the Board had violated his constitutional rights to due process of law when it changed the date of the hearing without notice to him.

¶8The defendant-appellee filed a motion for summary judgment explaining that the original hearing date was cancelled because Thomas was not eligible for parole in January, 1979, due to his Tallapoosa County conviction. Thomas opposed this motion and filed his own motion for summary judgment. He contended that the Alabama statutes1 contain mandatory language directing that parole be granted when certain conditions are met. Thomas argues that this mandatory language creates a protectable liberty interest. He further contends that the appellee’s failure to notify him of the changed parole date denied him a fair opportunity to be heard.

¶9The District Court for the Middle District of Alabama, on June 19, 1981, granted the defendant’s motion for summary judgment and denied plaintiff’s motion. The District Court held that Thomas was not constitutionally entitled to a hearing because the language of the Alabama statute makes parole within the discretionary power of the parole board after their consideration of numerous factors. Thomas v. Sellers (Civil Action No. 80-484-N, June 19, 1981).

¶10The 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), addressed the issue of an inmate’s right to the constitutional protection of due process in parole considerations. The Nebraska statute provided that inmates were to be released unless certain criterion were found by the parole board. The Supreme Court, when presented with the argument that a prisoner has a constitutionally protected interest in a parole hearing stated, “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Id. at 7, 99 S.Ct. at 2103. However, the Supreme Court found that the language of the Nebraska statute did provide for automatic parole unless certain factors were found to exist, therefore Nebraska inmates had a liberty interest in parole. The importance of the precise wording of each state’s statute was further emphasized when the Supreme Court found the Connecticut statute did not create a liberty interest because of the discretion given the parole board in that state. Connecticut v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).

¶11The Fifth Circuit examined the Texas statute, which is similar to the Alabama *489statute, in Williams v. Briscoe, 641 F.2d 274 (5th Cir. 1981). The court determined the language of the Texas statute was not like the mandatory language of the Nebraska law and held there was no entitlement to release after a minimal period of incarceration. Id. at 277.

¶12The Alabama statute like the Texas statute calls for discretionary rather than mandatory action on the part of the board. The law directs the board to consider a number of factors in making their determination, which is a subjective rather than objective determination. It does not contain any language that mandates parole as was found in Greenholtz. When the statute is framed in discretionary terms there is not a liberty interest created.

¶13We find that the action of the Alabama Board of Pardons and Paroles in redetermining the date Thomas would be eligible for a hearing before the board was within the powers established by the statutes. We do not find this action to be arbitrary or capricious as the appellant contends. We have stressed in the past that absent flagrant or unauthorized action by a parole board the discretionary power vested in a parole board will not be interfered with by the Federal courts. United States v. Norton, 539 F.2d 1082 (5th Cir. 1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (5th Cir. 1973); Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971); Thompkins v. United States Board of Parole, 427 F.2d 222 (5th Cir. 1970).

¶14Since the court finds that the Alabama parole statutes do not create a liberty interest and that appellant has failed to show arbitrary or capricious action on the part of the Alabama Board of Pardons and Paroles, the claims of the appellant are without merit. We accordingly affirm the decision of the district court.

¶15AFFIRMED.