United States District Court, S.D. Mississippi, Northern Division
LAWRENCE O. MASON, Plaintiffs,
SHANNON WARNOCK, ET AL, Defendants.
MEMORANDUM OPINION AND ORDER
LINDA R. ANDERSON, Magistrate Judge.
THIS CAUSE is before the Court on the Motion for Summary Judgment filed by Defendants Linda P. Durr and Michelle Taylor. The Court has also considered Plaintiff Lawrence O. Mason's sworn testimony given at the omnibus hearing in this cause on May 6, 2012, and his response to the motion. For the reasons discussed below, the Court finds that the motion is meritorious and should be granted.
Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff is currently incarcerated as a convicted felon in the Holmes-Humphreys County Correctional Facility [HHCCF] in Lexington, Mississippi. He was convicted of burglary and larceny of a dwelling on August 1, 1994, and was given a five-year suspended sentence. On June 15, 1995, that suspended sentence was revoked, and he was ordered to serve the five-year sentence. On July 18, 2007, he was convicted of possession of cocaine with the intent to distribute and sentenced to serve 15 years, with ten years probation.
Defendant Michelle Taylor is employed by the Mississippi Department of Corrections [MDOC] in the Records Department. She wrote Plaintiff's ARP First Step Response. Defendant Linda P. Durr is also employed by MDOC, with E. L. Sparkman, Deputy Commissioner, and she also wrote a letter for the ARP First Step Response. Plaintiff also named Margaret Bingham, who was no longer employed by MDOC and has not been served with process or entered an appearance in this cause. Ms. Bingham was the former superintendent of MDOC and provided Plaintiff's Second Step Response.
According to Mason's Complaint, he has wrongfully been denied parole eligibility by MDOC's misapplication of MISS. CODE ANN. § 47-7-3. A portion of that law allowed nonviolent offenders convicted after June 30, 1995, to be eligible for parole, with certain exceptions which Mason contends do not apply to him. He charges that MDOC incorrectly interprets the law to require that an inmate can never have been convicted of a violent crime in his lifetime to be eligible for parole under the provisions of §47-7-3.
Mason was convicted of burglary and larceny of a dwelling prior to June 30, 1995, and that crime is considered to be a violent crime under Mississippi law. See MISS. CODE ANN. 47-7-3. According to Mason, the law should be interpreted as written, and only convictions for violent crimes entered after the law's passage should bar its application to prevent parole consideration. Liberally construed, Mason claims that MDOC's inconsistent interpretation of the law violates his Due Process rights and the United States Constitution's ex post facto prohibition. He charges that other prisoners convicted of violent crimes before the passage date have been given parole hearings.
Mason asks this Court to issue a declaratory judgment stating that the denial of his parole eligibility is unlawful; that $10, 000 in compensatory damages and $10, 000 in punitive damages be awarded to him; and, that an injunction be entered directing Defendants to provide him with an active parole date.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure sets forth the requirements for summary judgment. Rule 56, in relevant part, provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." Fed. R. Civ. R. 56(c). To determine if there is a genuine issue of material fact, the Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The United States Supreme Court has held that entry of summary judgment is appropriate only "after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The plaintiff's burden of proof is established by the elements of the substantive law, and only facts relevant to those elements will be considered for summary judgment. Id. at 322.
In order to succeed on a § 1983 claim, Plaintiff must prove that a person acting under the color of state law violated a right secured by the Constitution or law of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). Liberally construed, Plaintiff alleges that the use of the mandatory language "shall" throughout Miss. Code Ann. § 47-7-17, which instructs the Parole Board on the examination of an offender's record and eligibility of parole, creates a protected liberty interest in a prisoner's parole hearings. Plaintiff argues that the refusal to set him a hearing date denied him a meaningful hearing as required by the statute, and in turn, his Fourteenth Amendment substantive due process rights were denied. According to Plaintiff, §47-7-3(1)(h) gives him a reasonable expectation to be parole eligible because he is "not presently serving a violent crime nor has ever committed a violent crime in his criminal history..."; thus, his due process rights have been violated.
This issue has already been squarely addressed by the courts. The Fifth Circuit recognizes that the distinction between the use of "may" and "shall" differentiates a prisoner's expectation of parole. Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir. 1987). In evaluating the parole statutes, the Fifth Circuit has held that the use of the word "may" in Miss. Code Ann. § 47-7-3(1) indicates that the Parole Board has absolute discretion in determining parole. Scales, 831 F.2d at 566. Because of the Parole Board's great discretion, prisoners have no sure expectation of release, and in turn, they have no liberty interest in parole. Id. There is "mandatory" language in other sections of the parole statutes. But in Harden v. State, the Mississippi Supreme Court held that the statutes governing parole are to be read together as a statutory scheme. Harden, 547 ...