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Metoyer v. Fudge

United States District Court, W.D. Oklahoma

May 31, 2019

DELYNN FUDGE, et al., Defendants.



         Plaintiff, a pro se inmate, filed a Complaint under 42 U.S.C. § 1983 alleging numerous constitutional violations surrounding his two prior parole hearings, (Compl.) [Doc. No. 1]. United States District Judge Scott L. Palk referred the matter for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). For the reasons set forth below, it is recommended that the Court dismiss the Complaint on screening.

         I. Background and Plaintiff's Claims

         In 1996, Plaintiff was convicted of first degree murder for a crime committed in 1982. Compl. at 9, 11. He began serving his sentence of life with parole in 2000. Id. at 9. When Plaintiff was convicted, Oklahoma's Forgotten Man Act obliged the Parole Board to consider “every inmate . . . for parole on or before the expiration of one-third of his maximum sentence.” Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979). The Oklahoma legislature repealed that statute in 1997 and replaced it with the Truth in Sentencing Act. As applied to offenders whose crimes were committed before July 1, 1998, the Truth in Sentencing Act sets initial docket dates for parole consideration at either a percentage of the mid-point of the sentencing matrix for the crime, or at one-third of the actual sentence, whichever is earlier. Okla. Stat. tit. 57, § 332.7(A). Once denied parole, inmates convicted of a violent crime are not eligible for reconsideration for three years. Id. § 332.7(E)(1); see Traylor v. Jenks, 223 Fed.Appx. 789, 790 (10th Cir. 2007) (“Under the Truth in Sentencing Act, a person who committed a violent crime before July 1, 1998, and has been denied parole, is eligible for reconsideration at least once every three years.”).[1] Additionally, when the Board considers his application for parole, an inmate generally receives “jacket review” rather than an in-person hearing. See, e.g., Taylor v. Hargett, 203 F.3d 836, 2000 WL 135172, at *1 (10th Cir. 2000) (internal quotation marks omitted); see also, generally, Maynard v. Fallin, 564 Fed.Appx. 943, 945 (10th Cir. 2014) (detailing the change in parole consideration brought by the Truth in Sentencing Act).

         Plaintiff sues Oklahoma Pardon and Parole Board (the Parole Board) members Delynn Fudge, Tom Gillert, Robert Macy, C. Allen McCall, Michael Kris Steele, and Roberta Fullerton for alleged constitutional violations involving his November 2015 and November 2018 parole hearings. Although Plaintiff's Complaint is lengthy, the Court construes his repetitive arguments as raising three claims for relief. In his first claim, Plaintiff argues he has a liberty interest in parole and alleges Defendants denied him that interest without due process of law. Compl. at 6-14, 14-21, 21-33. In his second and third claims, Plaintiff alleges that Oklahoma's 1997 Truth in Sentencing Act, enacting changes in the process for considering an inmate's eligibility for parole, created both an Equal Protection and an Ex Post Facto Clause violation. Id. at 14-21.

         II. Screening Standard

         Because Plaintiff is suing government officials, the Court has a duty to screen the Complaint. See 28 U.S.C. § 1915A(a). In that analysis, the Court must consider whether the Complaint fails to state a claim upon which relief may be granted. Id. § 1915A(b)(1). To survive screening, Plaintiff's Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In applying this standard, the Court “accept all the well-pleaded allegations of the [Complaint] as true and must construe them in the light most favorable to . . . [P]laintiff.” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (internal quotation marks and citation omitted).

         III. Analysis

         A. Plaintiff's Due Process Claims

         Plaintiff alleges Defendants violated his constitutional right to due process by failing to properly consider him for parole. Compl. at 6-14. 14-21, 21-33. Plaintiff alleges a myriad of shortcomings by Defendants, including that the Parole Board failed to establish procedures for determining Plaintiff's eligibility for parole under applicable statutory matrices; provide an in-person parole hearing; provide an annual parole hearing; properly review his application for parole; and properly vote on his application for parole. Id. Plaintiff also argues that the Parole Board has failed to comply with recently enacted legislation regarding parole for prisoners who are at least 60 years old. Id. at 21-33; see Okla. Stat. tit. 57, § 332.21. However, Plaintiff's claims are rooted in his belief he has a constitutional liberty interest in parole, and he is incorrect. See, e.g., Compl. at 6 (Plaintiff relying on his “state created statutory liberty interest rights”). Because it is discretionary, Plaintiff has no constitutionally protected liberty interest in parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11 (1979) (“That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained . . . a hope which is not protected by due process.” (emphasis in original)); Griffith v. Bryant, 625 Fed.Appx. 914, 917-18 (10th Cir. 2015) (“Also, because Oklahoma's parole scheme is discretionary, [plaintiff] has no constitutionally protected due process liberty interest in parole.” (citing Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999) and Shirley, 603 F.2d at 807); see also Hunter v. Beck, 244 Fed.Appx. 848, 852 (10th Cir. 2007) (“‘[A]n expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.'” (quoting Olim v. Wakinekona, 461 U.S. 238, 251 n.12 (1983))). Therefore, none of the Parole Board's alleged deficiencies violated Plaintiff's constitutional rights. See Pettigrew v. Zavaras, 574 Fed.Appx. 801, 809-815 (10th Cir. 2014) (affirming dismissal of plaintiff's claim that the Parole Board violated his procedural and substantive due process rights when they relied on false information in his prison file to deny parole because plaintiff lacked a due process right in parole and thus lacked a constitutional right to “fair parole procedures”).

         B. Plaintiff's Equal Protection Claim

         Plaintiff alleges that the “major changes” in parole consideration enacted by the Truth in Sentencing Act caused him to be discriminated against and denied equal protection of the law. Compl. at 14-21. Plaintiff appears to allege that all inmates who are subject to the Truth in Sentencing Act are treated differently than the “pre-1998 inmates, ” who were subject to the Forgotten Man Act. Id. Plaintiff is correct, but such difference does not implicate the Equal Protection Clause. The Fourteenth Amendment's equal protection guarantee “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Here all current inmates (i.e., persons similarly situated) are considered for parole according to the Truth in Sentencing Act and not the Forgotten Man Act and, therefore, are treated alike. See, e.g., Coggin v. Champion, 188 F.3d 518, 1999 WL 614700, at *2 (10th Cir. 1999) (affirming the district court's dismissal of plaintiff's equal protection claim - alleging he was treated differently than inmates sentenced under new legislation - because he failed to show that “criminals convicted and sentenced . . . on the same date . . . received a [sentence under the new legislation], as required for an equal protection claim”).

         C. Plaintiff's Ex Post Facto Claim

         Plaintiff also alleges that Okla. Stat. tit. 57, § 332.7 violates the Ex Post Facto Clause. Compl. at 19.[2] The Ex Post Facto Clause “is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.'” Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504-505 (1995) (citations omitted). Thus, a law violates the Ex Post Facto Clause when it changes an allotted punishment to the offender's disadvantage. See Lynce v. Mathis, 519 U.S. 433, 441 (1997). The Tenth Circuit Court of Appeals has clearly held the relevant change in Oklahoma law - Okla. Stat. tit. 57, § 332.7's enactment - does not constitute a facial violation of the Ex Post Facto Clause. See Henderson v. Scott, 260 F.3d 1213, 1216 (10th Cir. 2001) ...

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