Orellana v. Kyle

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50252

Summary Calendar

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SAMUEL ORELLANA,

Plaintiff-Appellant,

versus

JACK KYLE, Chairman, Board of

Pardon and Parole,

Defendant-Appellee.

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Appeal from the United States District Court for the

Western District of Texas

(A 94 CV 768)

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(August 11, 1995)

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Samuel Orellana, a Texas state prisoner proceeding pro se and

in forma pauperis (IFP), filed a civil right suit pursuant to 42

U.S.C. § 1983 against Jack Kyle in his official capacity as

Chairman of the Texas Board of Pardons and Paroles. Orellana

alleged that parole review procedures violated the due process

*

Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

clause. He also alleged that a change in rules governing the

scheduling of parole reconsideration hearings violated the Ex Post

Facto Clause. Orellana sought injunctive relief only. A

magistrate judge recommended dismissing Orellana's suit, with

prejudice, as frivolous pursuant to 28 U.S.C. § 1915(d). The

magistrate judge determined that 1) Orellana presented a mixed

petition raising both habeas corpus and § 1983 claims; 2) Orellana

had no constitutionally protected liberty interest in parole; 3)

there was no Ex Post Facto violation; 4) injunctive relief was not

warranted; and 5) the defendant was entitled to absolute immunity.

Orellana objected to the magistrate judge's report and

recommendation. Adopting the magistrate judge's report and

recommendation, the district court dismissed Orellana's suit

pursuant to § 1915(d). Orellana filed a timely notice of appeal.

I

The initial question is whether Orellana's claims are

cognizable under § 1983. "Section 1983 is an appropriate legal

vehicle to attack unconstitutional parole procedures or conditions

of confinement." Cook v. Texas Dep't of Criminal Justice

Transitional Planning Department, 37 F.3d 166, 168 (5th Cir. 1994).

If, however, a prisoner is challenging the result of a specific

defective parole hearing, or is challenging a parole board's rules

and procedures that affect his release, and resolution would

automatically entitle him to accelerated release, then the

challenge must be pursued by writ of habeas corpus. Id. A claim

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that has an indirect impact on whether a claimant eventually

receives parole may still be cognizable under § 1983. If such a §

1983 complaint contains both habeas and § 1983 claims, the district

court should separate the claims and decide the § 1983 claims.

Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119

(5th Cir. 1987).

Orellana alleged that he was eligible for and was denied

parole on four different occasions. He alleged that the reasons

given for the denials were vague and ambiguous and, therefore, did

not comply with due process notice requirements. He then alleged

numerous parole review procedures which violate due process.

Orellana also challenged the application of new procedures as

violative of the Ex Post Facto Clause.

Liberally construed, (as they must be), Orellana's pleadings

are not challenging a single defective hearing affecting his parole

eligibility, nor is he arguing that he is automatically entitled to

an accelerated release. Orellana is seeking to have the Parole

Board comply with due process and Ex Post Facto requirements in its

parole review procedures. It appears that a favorable

determination on these issues would not automatically entitle

Orellana to accelerated release. Therefore, we will consider that

his claims are properly raised under § 1983.

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II

Orellana argues that the parole board's parole review

procedures deny prisoners due process because prisoners are not

given advance written notice of hearings, not afforded an

opportunity to be heard, denied access to all materials considered

by the board, and denied the right to be accompanied by persons of

their choice. Orellana also asserts that the information relied on

by the Board to deny parole was "admittedly false."

"`[N]either habeas nor civil rights relief can be had absent

the allegation by a plaintiff that he or she has been deprived of

some right secured to him or her by the United States Constitution

or the laws of the United States.'" Hilliard v. Bd. of Pardons and

Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985)(citation omitted). To

the extent that Orellana seeks relief regarding alleged due process

violations resulting from the parole review process, the district

court properly disposed of his claim. After Sandin v. Conner, ____

S. Ct. ____ (1995 WL3 60217, June 19, 1995), prisoners may no

longer peruse state statutes and prison regulations searching for

the grail of limited discretion. Instead, a prisoner has a liberty

interest only in "freedom[s] from restraint . . . impos[ing]

atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life." Id. at * 9 (emphasis added).

Although Sandin cites with approval cases in which it was held that

state law could create a constitutional liberty interest in good-

time credits, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963

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(1974), or release on parole, Board of Pardons v. Allen, 482 U.S.

369, 107 S.Ct. 2415 (1987), it is difficult to see that any other

deprivations in the prison context, short of those that clearly

impinge on the duration of confinement, will henceforth qualify for

constitutional "liberty" status.1 Sandin itself involved

disciplinary segregation, a severe form of prison discipline, yet

held that such confinement, "though concededly punitive, does not

present a dramatic departure from the basic conditions of Conner's

indeterminate sentence." ___ S.Ct. ___.2 Few other incidents of

prison life involve such a level of deprivation as disciplinary

segregation. Thus, while, as Sandin noted, prisoners retain

constitutional remedies under the First and Eighth Amendments and

the Equal Protection Clause of the Fourteenth Amendment, ___ S.Ct.

___, n.11, the ambit of their potential Fourteenth Amendment due

process liberty claims has been dramatically narrowed.

Orellana's claims might have implicated the narrow range of

1

Sandin expressly characterizes the unusual deprivations in

Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254 (1980) (transfer to

a mental hospital, and Washington v. Harper, 494 U.S. 210, 110

S.Ct. 1028 (1990) (forcible administration of psychotropic

drugs), as also involving a liberty interest.

2

Technically, the Court stated that it need not overrule

Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864 (1983), a case that

found a liberty interest but no due process violation in

confinement to administrative segregation. Sandin observes that

Hewitt did not depend on the existence of a constitutional right,

a question "anterior" to the conclusion that there has no

deprivation. ___ S.Ct. ___, n.5. It is unlikely, however, that

administrative segregation can give rise to any constitutional

claim after Sandin.

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prisoner liberty interests remaining after Sandin because he

challenges procedures relative to parole, which affects the

duration of confinement. The applicable Texas parole statutes have

been held, however, to confer no such liberty interest. Creel v.

Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210

(1991); Gilbertson v. Texas Bd. of Pardons & Paroles, 993 F.2d 74,

75 (5th Cir. 1993). It follows that because Orellana has no

liberty interest in obtaining parole in Texas, he cannot complain

of the constitutionality of procedural devices attendant to parole

decisions.

III

Orellana argues that a change in rules that altered the period

between parole reconsideration hearings constitutes an Ex Post

Facto violation. Relying on Eleventh Circuit law, Akins v. Snow,

922 F.2d 1558 (11th Cir. 1991), he argues that the rule is

equivalent to law for Ex Post Facto purposes because parole

reconsideration hearings are an essential part of parole

eligibility. Liberally construed, Orellana's brief argues that the

parole board is illegally employing procedures enacted after the

date of the commission of his offense and conviction, which results

in an extension of the period between his parole reviews.

A law need not impair a vested right to violate the Ex Post

Facto prohibition. See Weaver v. Graham, 450 U.S. 24, 29-30

(1981). "The presence or absence of an affirmative, enforceable

right is not relevant. . . . Critical to relief under the Ex Post

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Facto Clause is not an individual's right to less punishment, but

the lack of fair notice and governmental restraint when the

legislature increases the punishment beyond what was prescribed

when the crime was consummated." Id. at 30.

Orellana alleged that he was sentenced to a term of 10 years

imprisonment to begin March 18, 1988. The record does not reveal

his offense or conviction date. Without reviewing any particular

statute or provision, the district court held that a change in

parole rules that alters the period of time between parole

reconsideration hearings does not violate the Ex Post Facto Clause

because it "does not increase the punishment prescribed for an

offense."

This court recently reviewed parole review provisions

concerning the timing of reconsideration hearings. Creel v. Kyle,

42 F.3d 955 (5th Cir.), cert. denied, 115 S.Ct. 1706 (1995). We

found that a 1985 amendment to parole rules does not change the law

and, thus, there was no Ex Post Facto violation. Id. at 957; see

also California Dep't of Corrections v. Morales, 115 S.Ct. 1597

(1995).

The district court did not abuse its discretion by dismissing

Orellana's Ex Post Facto claim as frivolous.

IV

The district court found that defendant Kyle was absolutely

immune from suit. Relying on Hilliard, 759 F.2d at 1193-94, the

court held that parole board members are absolutely immune from §

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1983 damages suits for the performance of their quasi-judicial

roles in making individual parole decisions.

Whether a defendant possesses absolute immunity from suit is

a question of law that we review de novo. Walter v. Torres, 917

F.2d 1379, 1383 (5th Cir. 1990). Although the district court

relied on established law regarding damages suits, Orellana sued

for injunctive relief. "Neither absolute nor qualified immunity

extends to suits for injunctive or declaratory relief under §

1983." Chrissy F. by Medley v. Miss. Dep't of Pub. Welfare, 925

F.2d 844, 849 (5th Cir. 1991). The district court therefore erred

as a matter of law in finding the defendant immune from this

injunctive suit. Because, however, Orellana's claims were properly

dismissed as frivolous, this error is harmless.

V

For the reasons stated herein, the dismissal of Orellana's

petition is

A F F I R M E D.

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