United States District Court, N.D. Mississippi, Aberdeen Division
WHITZEY S. WALKER PLAINTIFF
STEVE PICKETT and STEPHINE SKIPPER DEFENDANTS
ORDER OF DISMISSAL
M. VIRDEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court, sua sponte, for
consideration of dismissal. Plaintiff Whitzey S. Walker, an
inmate in the custody of the Mississippi Department of
Corrections, has filed suit pursuant to 42 U.S.C. § 1983
alleging Defendants have denied him a parole-eligibility
hearing and release on parole.
was convicted of residential burglary in 2006 and was
sentenced to twenty-five years' incarceration as an
habitual offender under Mississippi Code Annotated §
99-19-81. Walker claims that pursuant to recently revised
House Bill 585, he is now eligible for parole as an
non-violent habitual offender. Doc. #1 at 13. He has produced
an order from the sentencing judge entered January 29, 2018,
recommending “to the Mississippi Parole Board that the
Petitioner Whitzey Walker be considered by said Board for
parole under 47-7-3(1)(a)(iii).” Doc. #1 at 10. Despite
entry of this order, he claims, he has not been granted a
parole hearing or a recommendation for parole.
Walker has been permitted to proceed in forma
pauperis in this action, his complaint is subject to
sua sponte dismissal under the Prison Litigation
Reform Act (“PLRA”). See 28 U.S.C.
§ 1915(e)(2); see also 28 U.S.C. § 1915A
(subjecting prisoner complaint to preliminary screening
regardless of in forma pauperis status). Pursuant to
the PLRA, the Court is obligated to evaluate the complaint
and dismiss it if it is “frivolous or malicious,
” if it “fails to state a claim upon which relief
may be granted, ” or if it “seeks monetary relief
against a defendant who is immune from such relief.”
§ 1915(e)(2). A claim is frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A complaint fails
to state a claim upon which relief may be granted if relief
could not be granted to the plaintiff “under any set of
facts that could be proven consistent with the
allegations” in the complaint. Bradley v.
Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (citation
omitted); see also Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) (holding that complaint fails to
state a claim only where it does not plead “enough
facts to state a claim to relief that is plausible on its
argues that the Mississippi legislature has created a
protected liberty interest that he has been denied by the
Parole Board's failure to grant him a hearing, and
to the extent that Walker's claims are based upon a
violation of Mississippi's parole statutes, they are
dismissed, as violation of state law does not, alone, give
rise to an action under § 1983. Williams v.
Treen, 671 F.2d 892, 900 (5th Cir. 1982).
eligibility for parole is a matter of state law; there is no
right to parole recognized under federal law. See
Greenholtz v. Inmates of Nebraska Penal and Corr.
Complex, 442 U.S. 1, 7 (1979) (“There is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence.”). However, a state can create a liberty
interest protected by the Due Process Clause when it has a
system of mandatory parole. Wansley v.
Mississippi Dept. of Corrs., 769 F.3d 309, 312 (5th Cir.
2014) (emphasis added). Both the Mississippi Supreme Court
and the Fifth Circuit have held that Mississippi's
permissive parole statutes do not create a liberty interest,
“and federal due process rights are not implicated by
the denial of parole and the procedures by which parole is
denied.” Smith v. Mississippi Parole Bd., 478
Fed.Appx. 97, 99 (5th Cir. 2012); see also Scales v.
Mississippi State Parole Bd., 831 F.2d 565, 566 (5th
Cir. 1987) (citing Irving v. Thigpen, 732 F.2d 1215,
1217-1218 (5th Cir. 1984)(holding “the Mississippi
[parole] statute does not create any constitutionally
protected liberty interest in parole to which procedural due
process considerations attach”)); Davis v.
State, 429 So.2d 262, 263 (Miss. 1983) (holding that the
Mississippi parole law provides only “a mere hope that
the benefit will be obtained”); Miss. Code Ann. §
47-7-1, et seq. Accordingly, the Mississippi parole
statutes do not give inmates any federally-protected
interests in parole or the parole process, and this action
must be dismissed for failure to state a claim upon which
relief may be granted.
reasons set forth above, it is ORDERED that
the instant complaint is DISMISSED WITH
PREJUDICE. A separate final judgment will enter