Gilbertson v. Texas Bd. of Pardons and Paroles

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 7, 1993

Docket93-1087

StatusPublished

This text of Gilbertson v. Texas Bd. of Pardons and Paroles (Gilbertson v. Texas Bd. of Pardons and Paroles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gilbertson v. Texas Bd. of Pardons and Paroles, (5th Cir. 1993).

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Opinion

United States Court of Appeals,

Fifth Circuit.

No. 93-1087

Summary Calendar.

Carl Albert GILBERTSON, Plaintiff-Appellant,

v.

TEXAS BOARD OF PARDONS AND PAROLES, et al., Defendants-Appellees.

June 11, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant, a Texas prison inmate, sued for injunctive relief and damages claiming that after

he was advised of his tentative parole date, he was notified that he had lost that date and no reason

was given for the change. He proceeded in forma pauperis. The district court dismissed under 28

U.S.C. § 1915(d) as frivolous and this appeal followed. We affirm.

BACKGROUND

Appellant filed this 42 U.S.C. § 1983 action against the Texas Board of Pardons and Paroles

and Williams H. Brooks, Director of Parole Selection. Appellant alleged that on February 14, 1992,

he was notified that his tentative parole date was scheduled for December 1992, and that on March

12, 1992, he was notified that he had lost his tentative release date. He contended that he was given

no reason for the change, and had complied with every rule required to maintain his tentative release

date. He requested injunctive relief, immediate release, and damages. The district court dismissed

his complaint without prejudice as frivolous under 28 U.S.C. § 1915(d) without giving reasons.

DISCUSSION

This appeal raises the question whether a Texas prison inmate has a constitutionally protected interest in a tentative parole date, and whether he is entitled to reasons for denial of parole.1 He has

no such interest, and is not entitled to reasons.

The Supreme Court has held that the extent of a prisoner's liberty interest in parole release

is defined by state statute. Board of Pardons v. Allen, 482 U.S. 369, 371, 107 S.Ct. 2415, 2416, 96

L.Ed.2d 303 (1987). Furthermore, when a state st atute only holds out the possibility of parole, it

provides "no more than a mere hope that the benefit will be obtained ... a hope which is not protected

by due process." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1,

11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). Similarly, Texas procedure creates nothing more

than a hope. Williams v. Briscoe, 641 F.2d 274, 276 (5th Cir.1981), cert. denied, 454 U.S. 854, 102

S.Ct. 299, 70 L.Ed.2d 147 (1981) (comparing the Nebraska statute, which mandates parole unless

one of four specific reasons proscribes release, to the Texas statute, which does not).

The Texas statute provides that "[t]he board is not required to establish a tentative parole

month and program of progress if the board determines that to do so would be inappropriate in the

prisoner's case and indicate[s] that determination in the prisoner's file.... The pardons and paroles

division may revise a tentative parole month established under this subsection at any time the pardons

and paroles division determines is proper." Tex.Code Cri m.Proc.Ann. art. 42.18 sec. 8(e) (West

1988). The statute does not provide that the board must give reasons for denying parole or revising

a tentative parole date. The vesting of such extensive discretion in the parole board precludes the

creation of the liberty interest needed to assert a constitutional claim. Since this action does not state

a constitutional claim it is properly dismissed as frivolous. See Moore v. Mabus, 976 F.2d 268, 269

(5th Cir.1992).

Appellant's complaint could be considered as a habeas petition since, among other relief, he

sought immediate release. However, since his allegations do not state a constitutional claim, there

is no need for exhaustion; his complaint fails to state a cognizable habeas claim. See Irving v.

Thigpen, 732 F.2d 1215, 1216 (5th Cir.1984) (neither habeas nor civil rights relief can be had absent

1 The unusual procedure employed by the district court in dealing with this dismissal will not be addressed since we have recently addressed it in Thompson v. Sheriff Of Scurry County, No. 93- 1023 (5th Cir.1993) (unpublished). the allegation of a constitutional violation).

AFFIRMED.

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United States Court of Appeals,

Fifth Circuit.

No. 93-1087

Summary Calendar.

Carl Albert GILBERTSON, Plaintiff-Appellant,

v.

TEXAS BOARD OF PARDONS AND PAROLES, et al., Defendants-Appellees.

June 11, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant, a Texas prison inmate, sued for injunctive relief and damages claiming that after

he was advised of his tentative parole date, he was notified that he had lost that date and no reason

was given for the change. He proceeded in forma pauperis. The district court dismissed under 28

U.S.C. § 1915(d) as frivolous and this appeal followed. We affirm.

BACKGROUND

Appellant filed this 42 U.S.C. § 1983 action against the Texas Board of Pardons and Paroles

and Williams H. Brooks, Director of Parole Selection. Appellant alleged that on February 14, 1992,

he was notified that his tentative parole date was scheduled for December 1992, and that on March

12, 1992, he was notified that he had lost his tentative release date. He contended that he was given

no reason for the change, and had complied with every rule required to maintain his tentative release

date. He requested injunctive relief, immediate release, and damages. The district court dismissed

his complaint without prejudice as frivolous under 28 U.S.C. § 1915(d) without giving reasons.

DISCUSSION

This appeal raises the question whether a Texas prison inmate has a constitutionally protected interest in a tentative parole date, and whether he is entitled to reasons for denial of parole.1 He has

no such interest, and is not entitled to reasons.

The Supreme Court has held that the extent of a prisoner's liberty interest in parole release

is defined by state statute. Board of Pardons v. Allen, 482 U.S. 369, 371, 107 S.Ct. 2415, 2416, 96

L.Ed.2d 303 (1987). Furthermore, when a state st atute only holds out the possibility of parole, it

provides "no more than a mere hope that the benefit will be obtained ... a hope which is not protected

by due process." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1,

11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). Similarly, Texas procedure creates nothing more

than a hope. Williams v. Briscoe, 641 F.2d 274, 276 (5th Cir.1981), cert. denied, 454 U.S. 854, 102

S.Ct. 299, 70 L.Ed.2d 147 (1981) (comparing the Nebraska statute, which mandates parole unless

one of four specific reasons proscribes release, to the Texas statute, which does not).

The Texas statute provides that "[t]he board is not required to establish a tentative parole

month and program of progress if the board determines that to do so would be inappropriate in the

prisoner's case and indicate[s] that determination in the prisoner's file.... The pardons and paroles

division may revise a tentative parole month established under this subsection at any time the pardons

and paroles division determines is proper." Tex.Code Cri m.Proc.Ann. art. 42.18 sec. 8(e) (West

1988). The statute does not provide that the board must give reasons for denying parole or revising

a tentative parole date. The vesting of such extensive discretion in the parole board precludes the

creation of the liberty interest needed to assert a constitutional claim. Since this action does not state

a constitutional claim it is properly dismissed as frivolous. See Moore v. Mabus, 976 F.2d 268, 269

(5th Cir.1992).

Appellant's complaint could be considered as a habeas petition since, among other relief, he

sought immediate release. However, since his allegations do not state a constitutional claim, there

is no need for exhaustion; his complaint fails to state a cognizable habeas claim. See Irving v.

Thigpen, 732 F.2d 1215, 1216 (5th Cir.1984) (neither habeas nor civil rights relief can be had absent

1 The unusual procedure employed by the district court in dealing with this dismissal will not be addressed since we have recently addressed it in Thompson v. Sheriff Of Scurry County, No. 93- 1023 (5th Cir.1993) (unpublished). the allegation of a constitutional violation).

AFFIRMED.

Related

Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex

442 U.S. 1 (Supreme Court, 1979)

Board of Pardons v. Allen

482 U.S. 369 (Supreme Court, 1987)

Samuel E. Williams v. Dolph Briscoe

641 F.2d 274 (Fifth Circuit, 1981)

Gerald H. Irving v. Morris Thigpen, Charles J. Jackson, and Eddie Lucas

732 F.2d 1215 (Fifth Circuit, 1984)

David Darrell Moore v. Ray Mabus

976 F.2d 268 (Fifth Circuit, 1992)

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