Leo Fuller v. Georgia State Board of Pardons and Paroles

851 F.2d 1307, 1988 WL 75244
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 7, 1988
Docket87-8599
StatusPublished
Cited by39 cases

This text of 851 F.2d 1307 (Leo Fuller v. Georgia State Board of Pardons and Paroles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leo Fuller v. Georgia State Board of Pardons and Paroles, 851 F.2d 1307, 1988 WL 75244 (11th Cir. 1988).

Opinions

PER CURIAM:

Fuller, a Georgia inmate, serving a life sentence for rape, filed this pro se civil rights action against the Georgia State Board of Pardon & Paroles (“Parole Board”), members of the Board, and David Evans, Commissioner of the Georgia Department of Offender Rehabilitation. Generally, Fuller alleged racial discrimination with respect to the policies, practice and racial balance of the Parole Board. He claimed that he was denied a fair opportunity for parole because he is black.1

The defendants moved for summary judgment on the grounds that: (1) The Parole Board was absolutely immune from liability pursuant to the doctrine of sovereign immunity; (2) Fuller failed to state a claim against defendant Evans because he had no authority to grant or deny parole; (3) Fuller had no liberty interest in parole and, therefore, his due process rights were not violated; (4) Fuller did not have standing to challenge the racial composition of the Board; (5) Fuller was not denied parole because he was black or because his alleged victim was white.

Fuller filed a number of pro se discovery motions and requested the appointment of counsel. The district court provided summary judgment notice and Fuller filed an opposition to summary judgment including his own affidavit in which he stated that he “was denied a fair and genuine opportunity for parole because he is black.”

The district court granted summary judgment in favor of the parole board on the grounds that it was entitled to sovereign immunity pursuant to the eleventh amendment.2 Moreover, the court granted the defendants' motion for summary judgment in so far as Fuller’s claims were predicated on the denial of due process. However, to the extent that Fuller alleged an equal protection violation the court refused to grant summary judgment. Although the court stated that Fuller’s affidavit was not sufficient to create a material issue of fact regarding a denial of equal protection the court concluded that Fuller’s inability to effectively prosecute the case was related to his pro se status. The court, therefore, appointed counsel to represent Fuller and reopened discovery.

Fuller, through his appointed attorney, engaged in discovery after which the defendants moved for a protective order and for summary judgment. In their motion for summary judgment the defendants argued that as members of the Parole Board they were entitled to immunity for their actions taken while performing quasi-judicial functions. Second, they asserted that summary judgment should be granted because the evidence demonstrated that Fuller had not been discriminated against on the basis of his race or the race of his victim.

[1309]*1309Fuller argued that summary judgment should not be granted because evidence gathered through discovery sufficiently raised the inference that he had been denied parole solely because he was black. Specifically, Fuller pointed to evidence that: (1) From 1971 through 1986 almost 2lk times as many blacks were incarcerated for rape as whites; (2) from 1976 to 1986 more than twice as many white convicted rapists were paroled on their initial consideration as black convicted rapists; (3) from 1976 to 1986 more than seven times as many whites convicted of murder were paroled on their initial consideration as black convicted rapists; (4) from 1976 through 1977 eight white convicted rapists were paroled on initial consideration while no black rapists were paroled; (5) from 1981 through 1982 four white rapists were paroled on initial consideration while no black rapists were paroled even on their third consideration. Fuller argued that such evidence demonstrated that although the number of black convicted rapists was substantially higher than white convicted rapists the defendants had systematically paroled more whites than blacks. Therefore, Fuller maintained that summary judgment should not be granted.

The district court granted summary judgment in favor of the defendants on the ground that Fuller had failed to establish that the defendants discriminated against him based upon race. The court found that the statistics presented by Fuller were insufficient to establish a prima facie case of discrimination because he had not shown that he was similarly situated to white inmates who were granted parole. The court concluded that Fuller had failed to present the overwhelming statistical evidence necessary to give rise to an inference of discrimination.

Fuller argues that the Parole Board was not entitled to summary judgment on the grounds of sovereign immunity. He claims that the Georgia Constitution provides a waiver of sovereign immunity for any claim against the state or one of its agencies for which liability insurance protection has been provided. The state argues that the eleventh amendment prohibits any action against the state and that Georgia has specifically reserved sovereign immunity in its constitution.

The Georgia Constitution in Article I, Section 2, para. IX(a) specifically states that “[sovereign immunity extends to the state and all of its departments and agencies.” Although this same provision of the constitution waives sovereign immunity in circumstances in which liability insurance protection has been provided there is nothing in the record indicating that liability insurance has been provided to the Parole Board or that the waiver is applicable here. Accordingly, the district court is affirmed with respect to this ruling.

Fuller next argues that he had a liberty interest in parole consideration and that he could, therefore, invoke the due process clause in his claim against the defendants. Fuller’s argument is apparently directed at the district court’s grant of summary judgment with respect to his due process claims. However, this issue has been decided adversely to Fuller in Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941 (11th Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 612 (1982) which held that no entitlement or liberty interest in parole was created by Georgia statute.

Fuller also argues that he made a prima facie case showing discrimination by the Parole Board and that the district court, therefore, improperly granted summary judgment on his equal protection claims. He asserts that the state did not rebut the prima facie evidence of discrimination by showing that racially neutral criteria were applied.3

[1310]*1310The state argues that the Parole Board members are absolutely immune from liability in damages because their duties are quasi-judicial in nature. Additionally, the state relies on the Supreme Court’s recent decision in McCleskey v. Kemp, — U.S. —, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) and argues that Fuller’s evidence of a disparate impact on blacks is insufficient. The state asserts that the district court properly granted summary judgment because Fuller made no showing of intentional discrimination on the part of the defendants.

This Court has recognized that an inmate may challenge the denial of pardon or parole on equal protection grounds see e.g. Osborne v. Folmar,

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Cite This Page — Counsel Stack

Bluebook (online)
851 F.2d 1307, 1988 WL 75244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leo-fuller-v-georgia-state-board-of-pardons-and-paroles-ca11-1988.