The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KENNETH HOUSTON, )
AIS #263031 )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO: 2:18-CV-872-MHT-CSC
)
CARTER DAVENPORT, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Kenneth Houston, currently confined in the Donaldson Correctional Facility, filed the
instant pro se action under 42 U.S.C. ' 1983, seeking relief for certain claimed violations of his
federally protected rights while confined in the Bullock Correctional Facility (“BCF”). Doc. 10.
Plaintiff brings suit against Defendants Carter Davenport, Lyn Head, and Eddie Cook for their alleged
actions in connection with a disciplinary lodged against him on August 10, 2015, and a subsequent
denial of parole on January 24, 2017. Docs. 10, 16. Plaintiff seeks injunctive relief in the form of: (1)
expunging his disciplinary for “homicide”; and (2) a new parole hearing where the murder offense
incident is not considered. Doc. 10 at 4.
This recommendation solely relates to Plaintiff’s allegations asserted against Defendants
Chairman and former Associate Board Member Lyn Head and former Associate Board Member Eddie
Cook (“Parole Defendants”), and Parole Defendants’ subsequent motion for summary judgment.
Pursuant to the Court’s orders, Parole Defendants filed an answer, special report, supplemental
special report, responses, and supporting evidentiary material addressing Plaintiff=s claims for relief.
Docs. 26, 29, 34, 36. The Court informed Plaintiff that Parole Defendants’ special report, as
supplemented, may, at any time, be treated as a motion for summary judgment, and the Court explained
to Plaintiff the proper manner to respond to a motion for summary judgment. Doc. 37. Plaintiff filed
responses to Parole Defendants’ special report and their supplemental special report. Docs. 32, 38, 40.
This case is now pending on Parole Defendants’ motion for summary judgment. Upon consideration
of such motion, the evidentiary materials filed in support thereof, and Plaintiff=s opposition, the Court
concludes that Parole Defendant’s motion for summary judgment is due to be GRANTED.
I. Standard
To survive the properly supported motion for summary judgment submitted by Parole
Defendants, Plaintiff must produce some evidence supporting his constitutional claims. See Celotex
v. Catrett, 477 U.S. 317, 322 (1986). He must Ago beyond the pleadings and . . . designate >specific
facts showing that there is a genuine issue for trial.=@ Id. at 324. A plaintiff=s conclusory allegations
do not provide sufficient evidence to oppose a motion for summary judgment. Harris v. Ostrout, 65
F.3d 912 (11th Cir. 1995); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Consequently,
when a plaintiff fails to make a showing sufficient to establish the existence of an element essential to
his case, and on which he will bear the burden of proof at trial, summary judgment is due to be granted
in favor of the moving party. Celotex, 477 U.S. at 322; Barnes v. Southwest Forest Indus. Inc., 814
F.2d 607 (11th Cir. 1987). Where all the evidentiary materials before the court indicate that there is
no genuine issue of material fact and that the party moving for summary judgment is entitled to it as a
matter of law, the entry of summary judgment is proper. Celotex, 477 U.S. at 322; Everett v. Napper,
833 F.2d 1507, 1510 (11th Cir. 1987). Although factual inferences must be viewed in a light most
favorable to the non-moving party and pro se complaints are entitled to liberal interpretation by the
courts, a pro se litigant does not escape the burden of establishing a genuine issue of material fact.
Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). In this case, Plaintiff has failed to establish
that there is a genuine issue as to a material fact to preclude summary judgment.
II. Factual Background
By way of overview, Plaintiff asserts Parole Defendants improperly considered an inaccurate
disciplinary report when they denied him parole in January 2017. See Docs. 10, 16. Specifically,
Plaintiff asserts, his state and federal constitutional rights were violated when Parole Defendants denied
him parole based upon an erroneous Alabama Department of Corrections (“ADOC”) disciplinary
report which charged Plaintiff for an inmate murder at BCF. See Doc. 16. Plaintiff asserts, he was
wrongfully found guilty of the murder at an ADOC disciplinary hearing in 20151 (Doc. 16-1 at 2-5),
and subsequently, Parole Defendants knowingly relied on false information in the 2015 disciplinary
report when they denied Plaintiff’s 2017 parole. See generally, Doc. 16.
Plaintiff’s claims stem from the following facts, viewed in the light most favorable to Plaintiff:
Plaintiff is serving a 20-year sentence for robbery I, burglary III, theft of property II, and
possession of marijuana. Doc. 26 at 1-2. On August 6, 2015, Plaintiff was charged with violating
1 While Plaintiff’s amended complaint also challenges the constitutionality of his 2015 disciplinary hearing,
this Court, in its Order recommending granting Defendant Davenport’s separate motion for summary judgment,
reasoned Plaintiff’s 2015 claims are barred by the applicable statute of limitations.
“Rule 901 – Homicide.” Doc. 16-1 at 2. The disciplinary hearing for this offense was conducted on
August 12, 2015. Id. at 3. At this hearing, the arresting officer testified as follows: “During the
altercation between inmates Perkins and Curry, several inmates informed me that [Plaintiff] assisted
with cornering inmate Curry. [Plaintiff] was identified as one of the inmates that held inmate Curry
down while inmate Perkins stabbed inmate Curry. A further investigation conducted by ADOC I & I
identified [Plaintiff] as being involved in the incident that caused inmate Curry’s death.” Id. Plaintiff
testified that he was not present at the scene of inmate Curry’s death. Id. Upon conclusion of this
hearing and after reviewing all evidence presented, the disciplinary hearing officer found Plaintiff
guilty of the charged offense, and on August 13, 2015, Defendant Davenport approved the disciplinary.
Id. at 1-4.
Approximately 17 months later, on January 24, 2017, Parole Defendants denied Plaintiff’s
parole. Doc. 26-1. According to Defendant Head’s Board action sheet, Plaintiff was denied parole for
the following reasons: (1) Negative Institutional Conduct Record; (2) “ORAS” level is high risk of
reoffending; (3) Severity of present offense is high; and (4) Release will depreciate seriousness of
offense or promote disrespect for the law. Doc. 26-1 at 1. Pursuant to Defendant Cook’s Board action
sheet, Plaintiff was denied parole because: (1) Severity of present offense is high; and (2) Release will
depreciate seriousness of offense or promote disrespect for the law. Id. Plaintiff’s next parole hearing
is scheduled for January 2022. Id.
Additional facts are set forth as necessary.
III. Discussion
Plaintiff argues, he was wrongfully denied parole in 2017 because Parole Defendants relied, in
part, on the 2015 disciplinary charging him with homicide, notwithstanding that inmate Perkins, not
Plaintiff, was prosecuted for the death of inmate Curry. Doc. 10 at 6. Because inmate Perkins was
prosecuted and not Plaintiff, Plaintiff asserts he should have his prison record expunged and that he is
entitled to a parole hearing in which the Board does not consider the 2015 homicide disciplinary report.
Id. Plaintiff argues he has a protected liberty interest in his parole, because, inter alia, Parole
Defendants told Plaintiff’s family, Plaintiff would have been granted parole, but for the homicide
incident and, if later exonerated, Plaintiff would be granted parole. See e.g. Doc. 38 at 2.
Parole Defendants contend they are entitled to immunity in both their individual and official
capacities, and, in any event, Plaintiff is not entitled to relief because they did not violate any of his
constitutional rights. Doc. 26 at 6-7. Parole Defendants assert Plaintiff is not entitled to the relief he
seeks because Alabama inmates have no liberty interest in parole that is protected by the Due Process
Clause and further, even if the Board considered the homicide disciplinary when they denied his parole,
Plaintiff would still have been denied parole due to his numerous other disciplinaries. Id. at 7.2
Specifically, Parole Defendants list the following disciplinaries they considered when denying
Plaintiff parole: (1) assault on an inmate; (2) insubordination; (3) violation of institutional rules; (4)
possession of contraband; (5) failure to obey a direct order of an ADOC employee; (6) unauthorized
possession of a phone; (7) insubordination; (8) violation of institutional rules; (9) intentionally creating
a security, safety, or health hazard; (10) destroying, stealing, disposing, altering, damaging, or selling
state property; (11) being in an unauthorized area; (12) conspiracy to commit a violation of rule(s);
(13) under the influence of alcohol or narcotics; and (14) refusing to work. Id. at 7-8. Parole
Defendants also deny Plaintiff’s contention that they told Plaintiff’s family that, but for the homicide
disciplinary, Plaintiff would have been granted parole and further deny stating that if Plaintiff is later
exonerated, he would be granted parole. See Docs. 36-1 at 2; 36-2 at 2. Finally, Parole Defendants
assert, as to Plaintiff’s various other constitutional violation claims regarding his disciplinary hearing
and inmate record, “ADOC conducted the disciplinary hearing without involvement from the Board or
any of its members[;]” “ADOC…solely maintains [Plaintiff’s] inmate record[;]” and Parole
Defendants have no “authority or ability to provide any relief, if warranted, regarding these claims.”
Doc. 26 at 9.
A. Absolute Immunity
The capacity in which Plaintiff brings suit against Parole Defendants is not clear from the
amended complaint. And while Plaintiff does not appear to seek monetary damages, to the extent he
seeks to sue Parole Defendants in their official capacity, they are entitled to absolute immunity from
monetary damages. Official capacity lawsuits are “in all respects other than name, . . . treated as a suit
against the entity.” Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may not be sued
in his official capacity unless the state has waived its Eleventh Amendment immunity, see Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the state’s
immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S. Ct. 1114, 1125 (1996). Alabama
has not waived its Eleventh Amendment immunity, see Carr v. City of Florence, 916 F.2d 1521, 1525
(11th Cir. 1990) (citations omitted), and Congress has not abrogated Alabama’s immunity. Therefore,
Alabama state officials are immune from claims brought against them in their official capacities.”
Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1997).
2 In fact, as demonstrated from Defendant Cook’s Board action sheet, he did not consider the homicide
disciplinary in his decision to deny Plaintiff’s parole. See Doc. 26-1 at 1; see also Doc. 29-2 at 2.
In light of the foregoing, it is clear that Parole Defendants are state actors entitled to sovereign
immunity under the Eleventh Amendment for claims seeking monetary damages from them in their
official capacity. Lancaster, 116 F.3d at 1429; Jackson v. Georgia Department of Transportation, 16
F.3d 1573, 1575 (11th Cir. 1994).
B. Plaintiff’s Parole Hearing
“In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99
S.Ct. 2100, 2103–04, 60 L.Ed.2d 668 (1979), the Supreme Court held that the Constitution does not
confer a liberty interest in parole. The Court also determined, however, that states may confer such a
liberty interest in parole under state law.” Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991)
(citing Greenholtz, 442 U.S. at 12). “When a state statute, practice, or regulation provides for an
expectancy of parole and limits official discretion to deny parole, then a liberty interest in parole is
created.” Id. (citing Greenholtz, 442 U.S. at 12). Applying Supreme Court precedent, the Eleventh
Circuit maintains that “the Alabama parole statute, Ala. Code § 15–22–26 ([2019]), does not confer a
liberty interest in parole that is protected by the Due Process Clause because the statute provides that
parole may be granted at the Board's discretion.” Id. (citing Thomas v. Sellers, 691 F.2d 487, 488-89
(11th Cir. 1982)) (per curiam).
The Eleventh Circuit further explained, “that federal courts should not interfere with the
discretionary decisions of the Board ‘absent flagrant or unauthorized action’ by the Board.” Id.
(quoting Thomas, 691 F.2d at 489). The Court has “also held that the classification scheme adopted
by the Alabama prison system to determine the custody status of prisoners ‘is not arbitrary and
capricious, but reasonable and appropriate.’” Id. (quoting Hendking v. Smith, 781 F.2d 850, 852 (11th
Cir. 1986)) (holding that regulation denying sex offenders minimum security status does not violate
the Equal Protection Clause). “[T]he classification system used by the Alabama prison system contains
no inherent constitutional invalidity, but becomes constitutionally offensive only if ‘the regulation is
administered maliciously or in bad faith.’” Id. (quoting Hendking, 781 F.2d ay 852; see also Francis
v. Fox, 838 F.2d 1147, 1149-50 (11th Cir. 1988)) (holding that Alabama statute governing the prisoner
work-release program does not confer a liberty interest because it is discretionary).
The Eleventh Circuit in Monroe recognized an exception, however, to the general rule that
there is no liberty interest in parole or a due process interest in parole procedures unless the state creates
the expectancy of parole or limits official discretion to deny parole. The Court held that the state parole
board acted Aarbitrarily and capriciously@ in violation of due process when it knowingly relied on false
information in the prisoner=s file. Id. at 1442. As noted above, the Court emphasized, though, that
Afederal courts should not interfere with the discretionary decisions of [a state parole] [b]oard >absent
flagrant or unauthorized action= by the [b]oard.@ Id. at 1441 (quoting Thomas, 691 F.2d at 489).
As set forth supra, Plaintiff argues that Parole Defendants erred in relying on the homicide
disciplinary when they denied him parole. A liberal reading of Plaintiff’s allegations suggests Plaintiff
also asserts Parole Defendants relied on the disciplinary, knowing it was false. Plaintiff further
maintains that he has a protected liberty interest in his parole because, inter alia, “the Parole Board
specifically told his family members that the Board would have granted parole if it had not been for
the homicide Incident.” Doc. 32 at 3. In further support of his argument, Plaintiff asserts the Parole
Board told his family “if the homicide charge is dropped or exonerated that the Board will grant parole
release.” Id.
Nonetheless, Parole Defendants deny relying on or using false information when deciding
whether to grant Plaintiff parole and further contend, even without consideration of the homicide
disciplinary, they would still have denied Plaintiff parole. Parole Defendants deny telling Plaintiff’s
family that Plaintiff would have been granted parole absent the homicide disciplinary and further deny
asserting to the family that Plaintiff would be granted parole if exonerated from the homicide charge.
Even assuming Plaintiff could show that Parole Defendants relied, in part, on the alleged
erroneous homicide disciplinary at his 2017 parole hearing, he has presented no evidence that Parole
Defendants knowingly relied on any false information when making the parole decision in his case.
Not only does the Board have a duty to consider in good faith all relevant information in an inmate=s
parole file, including Plaintiff’s disciplinary history, when making parole decisions, but also a duty of
personally studying an inmate to determine their fitness for parole. See Doc. 26 at 7-8, Doc. 26-1 at 1,
Doc. 26-2, Doc. 26-3. Absent a demonstration that Parole Defendants engaged in any flagrant
unauthorized action such as knowingly relying on false information to deny Plaintiff parole, he has not
shown a constitutional violation.
Finally, as noted by Parole Defendants, Plaintiff asserts numerous constitutional violations
regarding his 2015 disciplinary hearing. See Docs. 10, 16. In the Court’s separate order, addressing
Defendant Davenport’s motion for summary judgment, the Court recommended granting Defendant
Davenport’s motion because Plaintiff’s 2015 claims relating to the homicide disciplinary are barred by
the statute of limitations. After review of Plaintiff’s numerous pleadings in this case, nowhere does he
refute Parole Defendants’ contention that they lack authority to expunge the disciplinary from his
record. Parole Defendants are, therefore, due to be granted summary judgment on Plaintiff=s claims.
IV. Conclusion
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the motion for
summary judgment on behalf of Defendants Head and Cook (Doc. 26) be GRANTED.
It is further
ORDERED that on or before December 16, 2021, the parties may file objections to the
Recommendation. Any objections filed must specifically identify the findings in the Magistrate
Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections
will not be considered by the District Court. The parties are advised that this Recommendation is not
a final order of the court and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the
Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual
findings and legal issues covered in the report and shall “waive the right to challenge on appeal the
district court's order based on unobjected-to factual and legal conclusions” except upon grounds of
plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir.
1989).
Done, on this the 2nd day of December 2021.
/s/ Charles S. Coody
CHARLES S. COODY,
UNITED STATES MAGISTRATE JUDGE