Brown v. Nester

753 F. Supp. 630, 1990 U.S. Dist. LEXIS 18089, 1990 WL 255588
CourtDistrict Court, S.D. Mississippi
DecidedNovember 28, 1990
DocketCiv. A. No. E90-0006(L)
StatusPublished

This text of 753 F. Supp. 630 (Brown v. Nester) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Nester, 753 F. Supp. 630, 1990 U.S. Dist. LEXIS 18089, 1990 WL 255588 (S.D. Miss. 1990).

Opinion

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

Plaintiff Frank Brown, Jr. brought this action pursuant to 42 U.S.C. §§ 1983 and 1988 against defendant Don Nester, a field parole officer with the Mississippi Department of Corrections, in his individual capacity, charging that defendant violated his Fifth and Fourteenth Amendment rights under the United States Constitution.1 This cause is presently before the court on the motion of defendant to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court is of the opinion that the motion is well taken and should be granted.

The following, derived from plaintiffs complaint, represents a brief synopsis of what the court perceives to be his claims. On June 2, 1989, while on parole for the commission of some unspecified offense, plaintiff was stopped by a Meridian police officer, allegedly for a traffic violation. The officer arrested him and carried him to a Charter Food Store, where a store employee was asked to view him; plaintiff was a suspect in an armed robbery investigation. Plaintiff contends that although the employee did not positively identify him as having been involved in the robbery, he was nevertheless transported to the police department where he was charged with armed robbery and attempted armed robbery, and was thereafter incarcerated in the Lauderdale County Jail.

On June 9, 1989, defendant served plaintiff with notice of a preliminary hearing scheduled for June 21, 1989 for review of possible violation of the following parole conditions:

Condition 2. Failure to report as directed.
Condition 8. Possession of a deadly weapon, knife.
Condition 10. Committing the offense of armed robbery.
Condition 11. Violation of curfew.

Plaintiff states that a hearing was held, as scheduled, before a hearing officer from the Mississippi Department of Corrections which was followed by a second hearing before the State Parole Board on October 25, 1989. Brown’s parole was revoked and he is currently incarcerated in the custody of the Mississippi Department of Corrections, South Mississippi Correctional Institution in Leakesville, Mississippi.

Plaintiff’s first complaint is that Nester, contrary to the conditions of his parole agreement which provided for monthly re[632]*632porting by plaintiff, discriminated against him as to condition 2 by having required him to report once a week — every Friday— while he allowed other parolees to report on a monthly basis. It appears to be Brown’s assertion that he did not violate the conditions of his parole since his parole agreement required only that he report once a month, and that Nester’s recommendation for revocation based on this alleged violation infringed his constitutional guarantee of equal protection and due process. Plaintiff charges additionally that despite the hearing officer’s determination at the initial revocation hearing that condition 8 had not been violated, Nester falsely and discriminatorily — -in violation of the Fourteenth Amendment — allowed the violation to be entered in his report to the State Parole Board, which offended his due process rights. Plaintiff further alleges that defendant discriminated against him and caused the deprivation of his liberty without due process by falsely alleging in his report to the State Parole Board that he committed armed robbery when in fact he was only a suspect and was never indicted for the offense. Finally, Brown asserts that the defendant should not have utilized his curfew violation as a reason for recommending parole revocation since the violation occurred when he was en route to his employment. He reasons that defendant violated his liberty right to continued employment because the curfew violation occurred in connection with his employment.2

Defendant has moved for dismissal of plaintiff’s complaint against him on the basis that he enjoys qualified immunity from liability as to the claims made against him. In the court’s opinion, though, the immunity applicable in this case is not a qualified immunity from liability, but rather absolute liability from suit. Regarding absolute immunity, the Fifth Circuit observed in Hodorowski v. Ray, 844 F.2d 1210 (5th Cir.1988), that “courts have long recognized that certain individuals, as a consequence of their function, merit absolute immunity to section 1983 liability for actions within the scope of that function.” Hodorowski, 844 F.2d at 1212. One category of officials who are accorded such absolute immunity includes officials who perform functions analogous to those of prosecutors. Id. at 1213. In Farrish v. Mississippi State Parole Board, 836 F.2d 969 (5th Cir.1988), the court reversed the district court’s imposition of monetary liability against a parole revocation hearing officer and the parole officer who, at the revocation hearing, presented evidence in support of his recommendation of revocation, on the basis that both were absolutely immune from suit. Though the court agreed that there had been a due process violation, the court determined that the parole revocation process was adjudicatory in nature, thus implicating considerations of absolute immunity. The court then concluded that the parole officer served in a prosecutorial role during the revocation proceeding:

To the extent that [the parole officer] was responsible for Farrish’s deprivation of due process, it was because he was “functionally comparable” to a prosecutor, and thus he should receive the immunity afforded to persons in that role.

Farrish, 836 F.2d at 976 n. 13 (citing Butz v. Economou, 438 U.S. 478, 516-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978); see also Johnson v. Kegans, 870 F.2d 992, 997 (5th Cir.) (individuals who function before parole board in same capacity as prosecutor, witness or probation officer enjoy absolute immunity), cert. denied, — U.S. -, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989); cf. Freeze v. Griffith, 849 F.2d 172, 174-75 (5th Cir.1988) (probation officers immune from liability for preparing and submitting presentence report). In the case at bar, plaintiff’s claims relate to Nester’s performance of his function during the parole revocation process inasmuch as his claims are that Nester provided false information to the hearing officer and the Pa[633]*633role Board. These are precisely the types of claims for which absolute immunity is recognized. In Johnson, the court explained the rationale for absolute immunity in this context:

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Bluebook (online)
753 F. Supp. 630, 1990 U.S. Dist. LEXIS 18089, 1990 WL 255588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-nester-mssd-1990.