Petition for Writ of Certiorari — Carvin L. Thomas, et al., Petitioners v. Roberta Kustoff, Chairman, Tennessee Board of Parole, et al.

Supreme Court briefOct 13, 2025

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Text

No.

In the Supreme Court of the United States

CARVIN THOMAS AND TERRELL LAWRENCE,

ON BEHALF OF THEMSELVES AND OTHERS

SIMILARLY SITUATED

Petitioners

ROBERTA NEVIL KUSTOFF, ZANE DUNCAN,

GARY FAULCON, TIM GOBBLE, MAE BEAVERS,

BARRETT RICH, AND ROBERT WAGGONER,

AS CHAIRMAN AND MEMBERS OF THE TENNESSEE

BOARD OF PAROLE

Respondents

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

CORRECTED PETITION

FOR WRIT OF CERTIORARI

Paul Andrew Justice III

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

Counsel for Petitioners

QUESTION PRESENTED

Does a parole applicant in Tennessee have a

liberty interest based on the expectation of

parole?

RELATED PROCEEDINGS

Thomas v. Montgomery, slip op. 3:23-cv-1204 (M.D.

Tenn. June 17, 2024).

Thomas v. Montgomery, 140 F.4th 335 (6th Cir.

2025).

PARTIES TO THE PROCEEDING

The Petitioners are Carvin Thomas and

Terrell Lawrence, the Plaintiffs.

The Respondents are Defendants Roberta

Nevil Kustoff, Zane Duncan, Gary Faulcon, Tim

Gobble, Mae Beavers, Barrett Rich, and Robert

Waggoner. The Defendants were all sued in their

capacity as the Chair and Members of the Tennessee

Board of Parole, not individually.

Notably, the previous chair sued was Richard

Montgomery, as named in the lower courts' captions.

Now, though, Montgomery has apparently been

replaced by Roberta Kustoff.1 Therefore, this petition

now substitutes her as the lead party.

The

board

members

are

all

listed

<https://www.tn.gov/bop/about-us/information/abtus-infoboard-members.html>

Table of Contents

Introduction..................................................................1

Jurisdictional Statement.............................................2

Constitutional and Statutory Provisions....................2

Statement of the Case..................................................6

Procedural Background..........................6

Relevant Tennessee Laws and

Customs..................................................7

Reasons to Grant Certiorari........................................9

Tennessee Law's Resemblance to that in

Greenholtz...............................................9

Tennessee Law's Resemblance to that in

Allen......................................................12

Conclusion..................................................................15

PETITION APPENDIX..............................................1a

APPENDIX A

OPINION AND JUDGMENT, United

States Court of Appeals for the Sixth

Circuit...................................................3a

APPENDIX B

APPELLATE DOCKET (Excerpt), Sixth

Circuit.................................................27a

APPENDIX C

ORDER DENYING REHEARING EN

BANC, Sixth Circuit...........................29a

APPENDIX D

OPINION AND JUDGMENT, United

States District Court for the Middle

District of Tennessee..........................31a

APPENDIX E

AMENDED COMPLAINT.................40a

Table of Authorities

CASES

Page(s)

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007)...............................................................11

Board

of Pardons v. Allen, 482 U.S. 369

(1987)..........................................1,9,11,12,13,14

Greenholtz v. Inmates of Neb. Penal and Corr.

Complex,

442

U.S.

(1972)....................................1,7,8,9,10,11,12,14

Perry

v. Sindermann, 408 U.S. 593, 602

(1972)...............................................................11

STATUTES

28 U.S.C. § 1254...........................................................2

42 U.S.C. § 1983...........................................................6

Tenn. Code Ann. § 40-28-101..............................5,8,14

Tenn. Code Ann. § 40-28-117.....................3,7,12,13,14

Tenn. Code Ann. § 40-35-503............3,4,5,7,8,10,11,12

OTHER AUTHORITIES

Fed. R. Civ. P. 12................................................6,10,11

Sup. Ct. R. 10.........................................................14,15

PETITION FOR CERTIORARI

After being denied parole by a computer

program, inmates challenged the procedures as

violating due process. The District Court dismissed

the lawsuit for failure to state a claim. Later, the

Sixth Circuit acknowledged the questionable nature

of the computer program, but it affirmed the

dismissal, saying that state law created no liberty

interest in parole — in other words, no right right to

due process. Nonetheless, state law provides that an

applicant shall "only" be released if "the board is of

the opinion that" the inmate can live lawfully and

beneficially to society — very similar to the criterion

used in Board of Pardons v. Allen, 482 U.S. 369

(1987), where this Court upheld a right to due

process. Moreover, state law only denies parole based

on the same four criteria laid out in Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1 (1979), where

this Court upheld a right to due process. State law

also requires that the Board of Parole provide a

reason before denying parole, again implying a

presumption of a parole grant. Finally, state law says

that all these statutes must be construed so that

every meritorious inmate "shall" be released on

"parole," the very same language used in Allen,

supra. By denying a liberty interest, the Sixth

Circuit has flatly contradicted this Court's rulings in

Allen and Greenholtz. And it has not even seemed to

understand the whole point of Allen. To restore due

process, the Court should grant certiorari.

JURISDICTION

The Court has appellate jurisdiction under 28

U.S.C. § 1254(1), which authorizes certiorari after a

ruling by a federal appellate court.

The Sixth Circuit issued its opinion on June 9,

2025. (Appx. 2). Fourteen days later, the Petitioners

filed for rehearing en banc. (Appx. 15-17). The court

denied it on July 14, 2025. (Id.) This Petition is filed

as of October 13, 2025, a Monday.

Notably, the Clerk asked for corrections on

October 20, 2025, and this Corrected Petition is being

submitted within 60 days thereafter.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fourteenth Amendment

Section 1

. . . . No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any state deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Tenn. Code Ann. § 40-28-117(a)

Parole being a privilege and not a right, no

prisoner shall be released merely as a reward

for good conduct or efficient performance of

duties assigned in prison, but only if the board

is of the opinion that there is reasonable

probability that the prisoner, if released, will

live and remain at liberty without violating

the law, and that the prisoner's release is not

incompatible with the welfare of society. If the

board so determines, the prisoner may be

paroled and if paroled shall be allowed to go

upon parole outside of prison walls and

enclosure upon the terms and conditions as

the board shall prescribe . . . .

Tenn. Code Ann. § 40-35-503(b)

Release on parole is a privilege and not a

right, and no inmate convicted shall be

granted parole if the board finds that:

(1)

There is a substantial risk that the

incarcerated individual will not conform

to the conditions of the release program;

(2)

(A)

The release from custody at the

time would depreciate the seriousness of

the crime of which the incarcerated

individual stands convicted or promote

disrespect for the law, except that the

board's finding shall not be the sole

basis for denying parole unless the

individual is serving a sentence for any

of the following offenses, in which case

the board may deny parole for

seriousness of the offense:

[LONG LIST OF CRIMES OMITTED]

(B)

If the board denies parole for the

seriousness of the offense, then the

board shall state in writing how the

inmate can improve the inmate's

chances of being released on parole at

the inmate's next hearing;

(3)

The release from custody at the time

would have a substantially adverse

effect on institutional discipline; or

(4)

The incarcerated individual's continued

correctional treatment, medical care or

vocational or other training in the

institution will substantially enhance

the incarcerated individual's capacity to

lead a law-abiding life when given

release status at a later time.

Tenn. Code Ann. § 40-35-503(j)

Upon declining to grant parole in any case, the

board must state in writing the reason for

declining parole and how the inmate can

improve the inmate's chance of being released

on parole in the future.

Tenn. Code Ann. § 40-28-101(a)

The purpose of this chapter is to provide a

system of probation and paroles to be liberally

construed to the end that the treatment of

persons convicted of crime shall take into

consideration their individual characteristics,

circumstances, needs and potentialities as

revealed by a case study and that such persons

shall be dealt with in the community by a

uniformly organized system of constructive

rehabilitation under probation supervision

instead of in correctional institutions or under

parole supervision when a period of

institutional treatment has been deemed

essential whenever it appears desirable in the

light of the needs of public safety and their

own welfare.

STATEMENT OF THE CASE

Procedural Background

After getting denied parole based on the

dictates of a computer program, inmates Carvin

Thomas and Terrell Lawrence sued in federal court

charging a violation of 42 U.S.C. § 1983. They

charged that letting an unreliable computer program

dictate parole outcomes violated due process —

especially since the Board of Parole would not even

let them challenge the program's factual assertions.

(Appx. 40, Complaint). The Petitioners sued all the

members of the Tennessee Board of Parole in their

official capacities. (Appx. 40). The lawsuit also

sought class action status. (Appx. 62-65 and 67).

Nonetheless, the District Court dismissed the

lawsuit on Rule 12 motion, for failure to state a

claim. (Appx. 37-39).

On appeal, the Sixth Circuit expressed concern

about whether the computer program could fit with

due process, but in the end, it never squarely reached

that question. (Appx. 25-26, Opinion). Instead, it

simply held that Tennessee parole applicants have

no right to due process. (Id.) Since the Petitioners are

only seeking reversal on that question — with a

remand to address the more specific issues of the

computer program — this Petition will just focus on

the right to due process. Namely, does Tennessee law

create a liberty interest in expecting parole?

Relevant

Customs

Tennessee

Laws

and

Tennessee law provides the following criteria

for deciding whether a prisoner shall be released on

parole. First, it mentions that parole is a "privilege

and not a right," and therefore "no prisoner shall be

released merely" for good conduct in prison, "but only

if the board is of the opinion that there is a

reasonable probability that the prisoner, if released,

will live and remain at liberty without violating the

law, and that the prisoner's release is not

incompatible with the welfare of society." Tenn. Code

Ann. § 40-28-117(a).

Second, elsewhere the law repeats the refrain

that "Release on parole is a privilege and not a

right," and therefore "no inmate convicted shall be

granted parole if the board finds (1) Substantial

risk of violating parole; (2) Seriousness of the

offense; (3) Disciplinary problems in the prison

system; or (4) Need for continued treatment or

training in prison. Tenn. Code Ann. § 40-35-503(b).

The exact wording is quoted at the beginning of this

petition. But basically the four criteria are word-forword the same as the four disqualifiers found in

Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1 (1972). There, the

Court found a right to due process. Hence, in their

Complaint, the current Petitioners focused on this

similarity to argue a similar right to due process in

Tennessee. (See Appx. 43-47).

To deny parole, the Board must provide a

written reason for the denial. Tenn. Code Ann. § 4035-503(j). Importantly, according to the allegations in

the Complaint, board custom is always to cite one of

the four disqualifiers quoted above from Greenholtz.

(Appx. 45-46, Complaint ¶ 10). In essence, the Board

agrees with the Petitioners that Tennessee law is

equivalent to the law in Greenholtz.

Finally, a third statute provides that all the

state's parole laws, as discussed above, must be

"liberally construed to the end" that inmates "shall

be dealt with in the community . . . under parole

supervision . . . whenever it appears desirable in

light of the needs of public safety and their own

welfare. Tenn. Code Ann. § 40-28-101. Importantly,

the Sixth Circuit actually quoted from this statute

when denying relief, but it conspicuously left out this

language. (Appx. 21).

Notwithstanding all the above laws and

customs, the Sixth Circuit found no liberty interest

in expecting parole. (Appx. 2-14). The Petitioners

asked for rehearing en banc, to no avail. (Appx. 17).

REASONS TO GRANT CERTIORARI

The Court should grant review because

Tennessee parole applicants do indeed have a right

to due process. In holding otherwise, the Sixth

Circuit wrongly disregarded at least two of the

Court's key precedents. Notably, the Sixth Circuit

did not meaningfully recite, or even seem to

understand, this Court's ultimate holding on the

issue in Board of Pardons v. Allen, 482 U.S. 369

(1987). In Allen, this Court held that it was enough

to create a liberty interest where statutory language

simply asserted that a meritorious inmates "shall" be

paroled — even without any more specific narrowing

down of the grounds for denial, as in Greenholtz v.

Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979). Despite that expansion

of the rule of Greenholtz, here the Sixth Circuit

seemed to treat Allen as simply a repeat of

Greenholtz. (See Appx. 9-10). In essence, the Sixth

Circuit applied an outdated, stricter rule rather than

the more lenient rule of Allen. But either way, even

the outdated, stricter rule of Greenholtz it also

misapplied.

Tennessee Law's Resemblance to

that in Greenholtz

Going back to Greenholtz, 442 U.S. 1, there

this Court looked at state statutory language

allowing for parole denial where an inmate met at

least one of four disqualifiers. The four disqualifiers

were (1) Likelihood of violating parole, (2)

Depreciating the seriousness of the offense, (3)

Prison disciplinary problems, or (4) Need for further

treatment or training in prison. Id., at 11.

Ultimately, this Court held that by laying out the

four specific criteria, and then by requiring a finding

of at least one criterion to decline parole, the state

had created an "expectancy of release" — a liberty

interest "entitled to some measure of constitutional

protection." Id. at 12. Here, similarly, Tennessee law

lays out the same four disqualifiers. The statute

reads, "Release on parole is a privilege and not a

right, and no inmate shall be granted parole if the

board finds that" any of the four Greenholtz

disqualifiers exist. See Tenn. Code Ann. § 40-35503(b). This comparison alone strongly suggests, if

not outright compels, a finding of a liberty interest.

Elsewhere, the same statute even requires the

Board to list a reason in writing before denying

parole. Tenn. Code Ann. § 40-35-503(j). Seemingly,

this subsection also creates a presumption of parole.

Per Allen, any law that mandates release "unless"

findings are made is equivalent to a presumption of

parole. 482 U.S. 369, at 378. If the Board must

release a prisoner unless it can provide a reason to

avoid such outcome, then a presumption exists in

favor of release.

Moreover, the Tennessee statutes imply that

the four Greenholtz disqualifiers are indeed the only

reasons that may justify denying parole. In fact,

according to the Amended Complaint, the Board

itself has also taken this view. (Since the case never

got past the Rule 12 stage, the record is unclear as to

whether the Board would even try to deny it.) In

other words, by custom, the Board only denies parole

by citing at least one Greenholtz disqualifier. (Appx.

28, ¶ 10). On review under Rule 12 of Civil

Procedure, a factually "plausible" allegation should

be taken as true. Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007). Even if the statutory interpretation

presented here were wrong (as the Sixth Circuit

seems to hold), the widespread custom alone would

create a liberty interest. By comparison, this Court

has previously found a property interest — protected

by due process — based solely on informal custom.

Perry v. Sindermann, 408 U.S. 593, 602 (1972)

(Professor had a property interest in his job, despite

not having any formal tenure). Even the Sixth

Circuit below agreed that, in theory, board customs

may create a liberty interest, but it claimed that the

Plaintiffs did not adequately plead customs. (Appx.

24-25) (citing Greenholtz and Allen). It suggested

that a future lawsuit might get around such ruling

by pleading customs more fully. (Id.) But the

Plaintiffs really did plead it. Thus far, no one even

denies the factual allegation about customs.

Regardless, even apart from any informal

customs, still a close reading of the laws simply

supports the Petitioners' statutory reading. Consider,

for example, the doctrine in pari materia — that a

court should read statutes together that address the

same topic. Here, the statute above uses language

about parole being a privilege and not a right, and

then it says that inmates who fall into the four

Greenholtz categories cannot make parole. Tenn.

Code Ann. § 40-35-503(b). Another statute,

Tennessee Code Annotated § 40-28-117(a), also

mentions that parole is a privilege and not a right,

and therefore it says that only inmates who can live

lawfully and can benefit society should be released.

Reading both statutes together, seemingly the

legislature meant that parole is privilege and not a

right, specifically in the sense that inmates who avoid

the four disqualifiers will live lawfully and avoid

harming society — thereby justifying parole.

Everyone agrees that if an inmate can only be denied

based on the Greenholtz categories, then an inmate

has a right to due process. Greenholtz, 442 U.S. 1.

That is what the statutes say in Tennessee, albeit in

a roundabout way. The Sixth Circuit was wrong to

find otherwise.

Tennessee Law's Resemblance to

that in Allen

Regardless, the test for a liberty interest got

more lenient in Board of Pardons v. Allen, 482 U.S.

369 (1987), and that rule of law the Sixth Circuit has

never squarely addressed. In Allen, the Court held

that a statute can create a right to due process even

if the parole board is not restricted to denials based

on four criteria. Instead, there, a state statute

created a liberty interest merely by saying that any

'worthy' inmate "shall" be released. The law in Allen

read as follows:

[T]he board shall release on parole . . . any

person confined in the Montana state prison or

the women's correction center . . . when in its

opinion there is a reasonable probability that

the prisoner can be released without detriment

to the prisoner or to the community[.]

....

Parole shall be ordered only for the best

interests of society and not as a reward of

clemency or a reduction of sentence or pardon.

A prisoner shall be placed on parole only when

the board believes that he is able and willing

to fulfill the obligations of a law-abiding

citizen.

Allen, 482 U.S. 369, at 377-78 (emphasis removed),

citing Mont. Code Ann. § 46-23-201 (1985). In

essence, an inmate's worthiness for parole was

measured by societal interest, and by the

interrelated criterion of his lawful character.

Although

worded

little

differently,

Tennessee's statutes are functionally the same. They

mandate the release of any worthy prisoners. To

start, first Tennessee provides as follows:

. . . [N]o prisoner shall be released merely as a

reward for good conduct . . . , but only if the

board is of the opinion that there is reasonable

probability that the prisoner, if released, will

live and remain at liberty without violating

the law, and that the prisoner's release is not

incompatible with the welfare of society.

Tenn. Code Ann. § 40-28-117(a). This Tennessee

statute invokes the same criteria from Allen — lawabiding character, and societal welfare. And

grammatically, the above sentence (in the negative)

is just a roundabout way of mandating parole for a

worthy prisoner. Saying that "no prisoner shall be

released [unless]" is the same as saying "[any]

prisoner shall be released . . . if." See id.

Regardless, a still clearer Tennessee statute

provides that all the parole laws must be "liberally

construed to the end" that inmates "shall be dealt

with in the community . . . under parole supervision .

. . whenever it appears desirable in light of the needs

of public safety and their own welfare. Tenn. Code

Ann. § 40-28-101 (emphasis added). Hence, by

overtly using the word "shall," Tennessee law

mandates that every worthy inmate must be

released. The only condition is whether the public

safety and inmate's welfare require it — the same

condition(s) found in Allen.

According to Supreme Court Rule 10,

certiorari is rarely granted where the lower court has

cited the correct rule of law but simply misapplied it.

But here the lower court failed even to state the

correct rule of law, skimming over Allen and

mistakenly equating it with the stricter precedent of

Greenholtz. In reality, Allen was an expansion of

Greenholtz, not a recap.

In any event, as already discussed, the

Petitioners contend that the Sixth Circuit deviated

from both precedents. Supreme Court Rule 10

endorses certiorari where a federal appellate court

has deviated from this Court on an important issue.

On that basis, the Petitioners ask for certiorari.

CONCLUSION

To resolve whether Tennessee law creates a

liberty interest in expecting parole, and to address

the Sixth Circuit's disregard for the Court's caselaw,

the Court should grant a writ of certiorari. Moreover,

the Court should reverse.

Respectfully submitted,

Paul Andrew Justice III

Attorney for the Petitioners

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

IN THE SUPREME COURT OF THE UNITED

STATES

CARVIN THOMAS AND TERRELL LAWRENCE,

on behalf of themselves and others

similarly situated,

Plaintiffs-Petitioners

ROBERTA NEVIL KUSTOFF, as Chairman of

the Tennessee Board of Parole, et al.,

Defendants-Respondents

_________________________________________________

APPENDIX TO CORRECTED PETITION

_________________________________________________

APPENDIX A

OPINION AND JUDGMENT, United States Court of

Appeals for the Sixth Circuit.......................................3

APPENDIX B

APPELLATE DOCKET (Excerpt), Sixth Circuit.....27

APPENDIX C

ORDER DENYING REHEARING EN BANC, Sixth

Circuit.........................................................................29

APPENDIX D

OPINION AND JUDGMENT, United States District

Court for the Middle District of Tennessee..............31

APPENDIX E

AMENDED COMPLAINT.........................................40

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-5637

FILED

June 09, 2025

KELLY L. STEPHENS, Clerk

CARVIN L. THOMAS and TERRELL LAWRENCE,

on behalf of themselves and others similarly

situated,

Plaintiffs - Appellants,

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole; ZANE DUNCAN; GARY

M. FAULCON; TIM GOBBLE; MAE BEAVERS;

ROBERTA NEVIL KUSTOFF; BARRETT RICH, as

Members of the Tennessee Board of Parole,

Defendants - Appellees.

Before:

COLE, STRANCH, and READLER,

Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER

OF THE COURT

Kelly L. Stephens, Clerk

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0153p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________

CARVIN L. THOMAS and TERRELL LAWRENCE,

on behalf of themselves and others similarly

situated,

Plaintiffs-Appellants,

No. 24-5637

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole; ZANE DUNCAN; GARY

M. FAULCON; TIM GOBBLE; MAE BEAVERS;

ROBERTA NEVIL KUSTOFF; BARRETT RICH, as

Members of the Tennessee Board of Parole,

Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Tennessee at Nashville.

No. 3:23-cv-01204—William Lynn Campbell Jr.,

District Judge.

Argued: March 18, 2025

Decided and Filed: June 9, 2025

Before: COLE, STRANCH, and READLER,

Circuit Judges.

__________________

COUNSEL

ARGUED: Drew Justice, JUSTICE LAW OFFICE,

Murfreesboro, Tennessee, for Appellants. Joshua

Daniel Minchin, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellees. ON BRIEF: Drew Justice, JUSTICE

LAW OFFICE, Murfreesboro, Tennessee, for

Appellants. Joshua Daniel Minchin, OFFICE OF

THE

TENNESSEE

ATTORNEY

GENERAL,

Nashville, Tennessee, for Appellees.

__________________

OPINION

__________________

COLE, Circuit Judge. In their class-action

complaint against the members of Tennessee's Board

of Parole, plaintiffs allege that Tennessee's use of a

computer test to determine parole eligibility violated

their constitutional right to due process. The district

court found that plaintiffs failed to state a plausible

claim for relief because Tennessee's parole statutes

do not confer a protected liberty interest in parole.

We affirm.

Because this appeal arises from an order

granting a Rule 12(b)(6) motion to dismiss, “we recite

the facts as they are alleged in the complaint.” Savel

v. MetroHealth Sys., 96 F.4th 932, 937 (6th Cir.

2024).

This case concerns how Tennessee grants

parole to eligible inmates. Tennessee's parole scheme

is governed by a seven-member Board of Parole.

Tenn. Code Ann. § 40-28-103(a). The Board is

responsible for determining inmates' fitness for

parole. Id. § 40-28-118(c). Inmates become paroleeligible when they have served either half of their

prison sentence (for determinate sentences) or their

minimum sentence (for indeterminate sentences

involving a range). Id. § 40-28-115(a), (b)(1).

When an inmate becomes parole-eligible, the

Board begins to review the inmate's fitness for

parole. The Tennessee Department of Correction

notifies the Board of eligible inmates, and the Board

compiles and distributes a list of inmates who shall

have a hearing. Tenn. Comp. R. & Regs. 1100-0101-.08(1). The Board appoints hearing officers who

conduct hearings, take testimony, and propose

findings and recommendations to the Board

regarding whether an inmate should be paroled.

Tenn. Code Ann. § 40-28-105(d)(2). Thereafter, the

Board votes to adopt, modify, or reject the hearing

officer's recommendations. Id.; Tenn. Comp. R. &

Regs. 1100-01-01-.08(2).

At issue here is how the Board determines

whether an eligible inmate receives parole. The

Board uses a computer test, “STRONG-R,” to assess

an inmate’s fitness for parole. STRONG-R reviews an

inmate’s information and assigns a score of “Low,”

“Moderate,” or “High” risk. Tennessee law requires

that each inmate annually receives a STRONG-R

test. The test “decides whether the inmate’s housing

situation, family life, or mental health is

problematic” and recommends prison programs to

assist with any issues it identifies. (Am. Compl., R.

12, PageID 85.)

Along with prison programming, the Board

uses STRONG-R as a test for determining whether

an inmate receives parole. The Board interprets an

assessment of “High” or “Moderate” risk as grounds

for denying parole. And when the Board denies

parole and advises the inmate how to improve his

chances for future parole, the Board’s denial

notifications state only, “Complete Programming As

Recommended by [STRONG-R] Assessment.” (Id. at

PageID 86–87.)

The Board’s reliance on STRONG-R, however,

has produced inaccurate results. Correctional

employees are generally “not adequately trained to

administer the [STRONG-R] test properly.” (Id. at

PageID 88.) For example, the test asks about the

inmate’s life and history, and correctional employees

should relay those questions to the inmate, then

enter the responses into the test on the inmate’s

behalf. But an inadequately trained employee may

fail to gather or input the necessary information,

yielding a STRONG-R score inconsistent with the

inmate’s true record and personal history.

10a

The Board keeps the STRONG-R results

“secret,” sharing them with the inmate at only their

parole hearing. The inmate cannot subpoena the

detailed results from their own tests, nor can they

subpoena the prison officer who inputted their

information into STRONG-R. Plaintiffs allege that

this policy “works to ensure that no inmate can

meaningfully challenge or address the [STRONG-R]

results.” (Id. at PageID 96.) The Tennessee

Department of Correction has a similar policy of

refusing to release STRONG-R results, but some

inmates have nonetheless successfully managed to

acquire some of their STRONG-R information from

prison officials.

Plaintiffs Carvin Thomas and Terrell

Lawrence are two parole-eligible inmates who were

denied parole due to their STRONG-R scores. Their

experiences with the test demonstrate STRONG-R's

shortcomings. For several years, Thomas received a

"Low" or "Moderate" risk score from STRONG-R

assessments. When he was transferred to a different

prison in 2022, however, his assessment scores began

to change despite no new negative behavior or

activity. His new STRONG-R results listed him as

"High" risk, with a likelihood of becoming violent.

11a

Thomas alleges that his change in risk score was due

to counselors "who had inferior training about how to

administer the assessment." (Id. at PageID 89.)

Thomas's specific results revealed several

errors. They falsely reported that Thomas had been

confined to a mental asylum, showed signs of mental

illness, and had committed crimes in the past

because of non-compliance with mental health

medications. But Thomas was never confined to a

mental asylum, diagnosed with a mental illness, or

prescribed psychological medication. The results also

stated that Thomas committed his decades-old crime

"for thrill or pleasure," but Thomas states he

committed those crimes to obtain money. (Id. at

PageID 90.) And the results stated that Thomas had

become addicted to drugs in the preceding six

months, despite Thomas's long-term sobriety and his

incarceration during that time.

Thomas attended a parole hearing in January

2023. He requested a continuance and a re-test of the

STRONG-R assessment. The Board postponed his

hearing, and prison officials audited Thomas's

STRONG-R test result. The Board did not, however,

order any retesting. During this time, Thomas

alleges that the prison counselor who performed his

assessment told him to cease the request for an audit

12a

or retesting, "or that things might get 'worse.'" (Id. at

PageID 91.)

Thomas never received the results of the audit,

but the hearing officer announced at his parole

hearing in May 2023 that prison officials had

concluded that his "High" STRONG-R risk result was

accurate. Thomas challenged the result at the

hearing. One of his supporters "also sent a letter to

the Board[] listing about a dozen concrete ways that

Thomas's STRONG-R result was factually wrong."

(Id. at PageID 92.) But, as is common practice, no

witness testified to verify the accuracy of the

STRONG-R results. The hearing officer announced a

denial of parole based on the STRONG-R

assessment, and the Board agreed. The Board

advised Thomas that, for a higher likelihood of future

parole,

should

the

STRONG-R

recommendations.

Similarly, Lawrence had historically scored

“Low” on STRONG-R, but despite no new issues or

adverse developments, his score in the spring of 2022

rose to “High.” Lawrence had completed many

rehabilitative programs, including the Cognitive

Behavioral Intervention Program (CBIP). The Board

denied Lawrence parole, citing his STRONG-R

results and the seriousness of his offense. His denial

notice recommended that Lawrence could improve

13a

his parole chances by completing CBIP, which he had

already completed.

While appealing his parole decision, Lawrence

was retested under STRONG-R and received a “Low”

score, despite no new information. Lawrence notified

the Board of his new score, and then a prison

counselor inputted new data into Lawrence’s test and

produced a third STRONG-R score, showing

Lawrence’s risk as “Moderate.”

Plaintiffs filed a class action amended

complaint on behalf of inmates who sought parole in

Tennessee. They sued the seven members of the

Board, all in their official capacity. Plaintiffs brought

one claim for relief under 42 U.S.C. § 1983, alleging

denial of procedural due process in violation of the

Fourteenth Amendment. Defendants moved to

dismiss plaintiffs’ amended complaint, arguing that

plaintiffs failed to state a claim under Federal Rule

of Civil Procedure 12(b)(6).

The district court concluded that plaintiffs

failed to state a claim for relief. First, the district

court concluded that inmates in Tennessee “do not

have a constitutionally protected liberty interest in

parole.” (Mem. Opinion, R. 26, PageID 235.) And it

14a

concluded that any liberty interest in parole would

not save plaintiffs’ claims, as they received the

required due process in their parole proceedings

because the Board gave plaintiffs a chance to be

heard and informed them why it denied parole.

Plaintiffs timely appealed.

II.

We review de novo a district court's dismissal

of complaints under Federal Rule of Civil Procedure

12(b)(6). Mattera v. Baffert, 100 F.4th 734, 739 (6th

Cir. 2024). We "construe the complaint in the light

most favorable to the plaintiff, accept its allegations

as true, and draw all reasonable inferences in favor

of the plaintiff." Watson Carpet & Floor Covering,

Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 456 (6th

Cir. 2011) (internal citation and quotation marks

omitted). To survive a Rule 12(b)(6) motion to

dismiss, a plaintiff must allege sufficient facts that,

taken as true, state a plausible claim for relief. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

complaint states a plausible claim for relief where its

alleged facts "allow[] the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged." Iqbal, 556 U.S. at 678.

15a

III.

The

Fourteenth

Amendment

prohibits

deprivation of "life, liberty, or property, without due

process of law[.]" U.S. Const. amend. XIV, § 1. A

plausible Fourteenth Amendment procedural due

process claim requires plaintiffs to allege "(1) that

they have a life, liberty, or property interest

protected by the Due Process Clause of the

Fourteenth Amendment [], (2) that they were

deprived of this protected interest within the

meaning of the Due Process Clause, and (3) that the

state did not afford them adequate procedural rights

prior to depriving them of their protected interest."

Cooperrider v. Woods, 127 F.4th 1019, 1042 (6th Cir.

2025) (quoting Hahn v. Star Bank, 190 F.3d 708, 716

(6th Cir. 1999) (internal quotation marks omitted)).

"A liberty interest may arise from the

Constitution itself, by reason of guarantees implicit

in the word 'liberty,' . . . or it may arise from an

expectation or interest created by state laws or

policies[.]" Wilkinson v. Austin, 545 U.S. 209, 221

(2005) (cleaned up). Plaintiffs asserting a liberty

interest must demonstrate "more than a unilateral

expectation of it." Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (quoting

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

577 (1972)). Rather, "[they] must, instead, have a

16a

legitimate claim of entitlement to it." Id. And "[t]o

determine whether due process requirements apply

in the first place, we must look not to the ‘weight’ but

to the nature of the interest at stake.” Id. (quoting

Roth, 408 U.S. at 570–71).

We first outline the Supreme Court’s

precedent on liberty interests in the context of

inmates seeking parole. Then, we consider how

Tennessee’s parole scheme fits within that precedent.

In doing so, we conclude that Tennessee’s scheme

does not create a constitutionally recognized

entitlement to parole.

The Supreme Court first addressed the liberty

interests of inmates seeking parole in Greenholtz.

There, a group of inmates sued members of the

Nebraska Board of Parole, alleging that the Board

denied them procedural due process in the inmates’

pursuit of parole. Id. at 3–4. The Court granted

review to determine whether the Fourteenth

Amendment’s Due Process Clause applied to

discretionary parole-release determinations in

Nebraska. Id. at 3. The plaintiffs advanced two

primary arguments in support of a liberty interest in

parole. Id. at 8. First, they argued that the possibility

of parole creates a liberty interest. Id. at 9. Second,

17a

they argued that the text of Nebraska’s parole

statute created a legitimate expectation of parole. Id.

at 11.

The Court rejected the plaintiffs’ first

argument but accepted its second. Id. at 11–12. It

concluded that “[t]here is no constitutional or

inherent right of a convicted person to be

conditionally released before the expiration of a valid

sentence.” Id. at 7. But, while it held that the mere

possibility of parole could not create a liberty

interest, it also concluded that a state can create a

liberty interest if it conveys to an inmate a legitimate

expectation of parole. Id. at 7, 12. So while the mere

existence of a parole system itself does not establish

a liberty interest in parole, a state statute can give

rise to a liberty interest where it creates a legitimate

expectation of parole. Id. The key issue is whether

the state statute contains mandatory language

transforming a possibility into an expectation. See

id.

A decade later, the Court applied Greenholtz to

Montana’s parole statutes. Bd. of Pardons v. Allen,

482 U.S. 369, 377 (1987). In Allen, the Court found

that Montana’s statute, like the Nebraska statute in

Greenholtz, contained mandatory language that

curtailed the state board of parole's discretion. Id. at

377–78. The statute thus gave inmates a legitimate

18a

expectation that they would receive parole. Id. at 378

n.10. In so holding, the Court reiterated that “[w]hen

statutes or regulatory provisions are phrased in

mandatory terms or explicitly create a presumption

of release, courts find a liberty interest.” Id.

(collecting cases).

Greenholtz and Allen require us to examine

Tennessee's parole system and determine whether

Tennessee sufficiently constrains the Board's

discretion such that inmates have a legitimate

expectation that they will be paroled. See Crump v.

Lafler, 657 F.3d 393, 399 (6th Cir. 2011) (“Allen and

Greenholtz teach that the salient factor is whether

the statute contains mandatory language that

creates a presumption of release when the

designated findings are made.”).

This is not the first time our circuit has

evaluated whether Tennessee confers a liberty

interest in parole. As Tennessee's parole statutes—

and accompanying Board rules—have changed over

time, so too have our conclusions.

In Mayes v. Trammell, 751 F.2d 175 (6th Cir.

1984), this court concluded that Tennessee conferred

a liberty interest in parole. We determined that

19a

“[t]he presence of the decisive language in the

Board's rules” established a liberty interest. Id. at

179. At the time, the Rules of Tennessee Board of

Parole stated, “The Board operates under the

presumption that each resident who is eligible for

parole is a worthy candidate and thus the Board

presumes that he will be released on parole when he

is first eligible.” Id. at 178 (quoting Tenn. Bd. of

Parole Rule 1100–1–1–.06(1)). This language

“appear[ed] to create the kind of presumption that

the Supreme Court found significant in Greenholtz.”

Id. Thus, Tennessee inmates had a legitimate

expectation of parole. Id. at 179.

We concluded that the statutory text separate

from the Board of Parole Rules, however, would not

create a liberty interest. Id. at 177. Unlike the

Nebraska statute in Greenholtz, the Tennessee

statutes did not use “shall” or “unless,” and the

statutes provided for parole as a privilege, rather

than a right. Id. at 177–78. Thus, without the Board

of Parole Rules imposing a presumption of release,

this court would have concluded that the inmates

had no liberty interest in parole. See id.

A few years later, statutory amendments to

Tennessee's parole system dictated a different

outcome. See Wright v. Trammell, 810 F.2d 589, 590

(6th Cir. 1987) (per curiam). The state amended the

20a

Rules of the Tennessee Board of Parole, removing

Rule 1100-1-1-.06's reference to a presumption of

parole. Id. at 590-91. This court determined that, by

removing those words, Tennessee no longer gave

inmates an expectation of parole. Id. And without an

expectation of parole, Tennessee conferred no liberty

interest. Id.

Tennessee most recently amended its parole

statutes when it passed the Reentry Success Act of

2021. Tennessee's parole system is governed by a

series of statutory provisions. The primary parole

statute states:

Parole being a privilege and not a right, no

prisoner shall be released on parole merely as

a reward for good conduct or efficient

performance of duties assigned in prison, but

only if the board is of the opinion that there is

reasonable probability that the prisoner, if

released, will live and remain at liberty

without violating the law, and that the

prisoner's release is not incompatible with the

welfare of society. If the board so determines,

the prisoner may be paroled[.]

Tenn. Code Ann. § 40-28-117(a)(1). Additionally, "no

inmate convicted shall be granted parole if the board

finds that":

21a

(1) There is a substantial risk that the

incarcerated individual will not conform to the

conditions of the release program;

(2)(A) The release from custody at the time

would depreciate the seriousness of the crime

of which the incarcerated individual stands

convicted or promote disrespect for the law[];

(3) The release from custody at the time would

have a substantially adverse effect on

institutional discipline; or

(4) The incarcerated individual's continued

correctional treatment, medical care or

vocational or other training in the institution

will substantially enhance the incarcerated

individual's capacity to lead a law-abiding life

when given release status at a later time.

Id. § 40-35-503(b). This system shall be “liberally

construed” to treat inmates in accordance with their

“individual characteristics, circumstances, needs and

potentialities[.]” Id. § 40-28-101(a).

Additionally, the Board cannot deny parole to

certain nonviolent inmates on the sole basis that

they committed a serious crime. Id. § 40-35-503(b)(2)

22a

(A). And inmates with lower-class nonviolent felonies

receive an explicit presumption of parole. Id. § 40-35503(h) (“[T]here is a presumption that an inmate

convicted of a Class E or Class D nonviolent felony

offense is to be released on parole upon the inmate

reaching the inmate’s release eligibility date unless

good cause is shown as to why the inmate should not

be released.”). When the Board denies parole, it must

state the reason for doing so in writing and advise

the inmate how they can improve their chances for

parole. Id. § 40-35-503(j).

Today’s Tennessee parole scheme more closely

mirrors Wright than Mayes. After the “privilege”

language, the statutes state that if the Board

determines the inmate “will live and remain at

liberty without violating the law, and that the

prisoner’s release is not incompatible with the

welfare of society[,]” he “may be paroled[.]” Id. § 4028-117(a)(1) (emphasis added). And today’s Board of

Parole Rules lack the critical presumption language

in Mayes. See Tenn. Comp. R. & Regs. 1100-0101-.07(4); Mayes, 751 F.2d at 177–78. Thus, the

statutory scheme permits parole but does not

mandate it.1

Contrary to defendants’ argument, Tennessee’s “privilege

and not a right” language alone would not preclude us from

finding a liberty interest. See Mayes, 751 F.2d at 179. Rather,

we must consider the statutory scheme as a whole to determine

whether the Board’s discretion is sufficiently constrained. See

23a

Considering the statutes governing parole, we

conclude that inmates in Tennessee do not have a

constitutionally recognized expectation of receiving

parole because the statutory scheme does not

sufficiently constrain the Board’s discretion to deny

parole. Consequently, Tennessee does not confer a

protected liberty interest on inmates.

Plaintiffs offer two arguments to the contrary.

First, they argue that the parole statutes use the

mandatory word “shall” and use the four key

considerations in Greenholtz. See Tenn. Code Ann. §

40-35-503(b); Greenholtz, 442 U.S. at 11 (citing Neb.

Rev. Stat. § 83-1,114(1) (1976)). Although the

statutes use words like “shall,” the use of “shall”

serves the opposite effect as in Greenholtz. See 442

U.S. at 11 (“[T]he Board of Parole . . . shall order [an

inmate’s] release unless it is of the opinion that his

release should be deferred because [conditions are

met.]”). Here, the four Greenholtz considerations are

grounds for mandatory denial of parole, not the

Crump, 657 F.3d at 399 (“Allen and Greenholtz teach that the

salient factor is whether the statute contains mandatory

language that creates a presumption of release when the

designated findings are made. . . . The mandatory language may

be found in a statute, a regulation, or even ‘policy

statements . . . or other official promulgations’ by parole or

prison officials.” (citations omitted)). That the court in Mayes

found a liberty interest despite the “privilege and not a right”

language shows that such language is not dispositive.

24a

mandatory grant of parole. See Tenn. Code Ann. §

40-35-503(b) (“[N]o inmate . . . shall be granted

parole if [one of the conditions is present.]”); § 40-28117(a)(1) (“[N]o prisoner shall be released . . . but

only if [conditions are met]. If the board so

determines, the prisoner may be paroled[.]”

(emphasis added)); Tenn. Comp. R. & Regs. 1100-0101-.07(4) (“[T]he Board shall deny the inmate’s

release on parole if it determines that [one of the

conditions is present.]”). Dictating when the Board

shall deny parole is different from dictating when it

shall grant it.

Second, plaintiffs argue that the Board’s

customs in granting and denying parole creates a

liberty interest. Plaintiffs cite no caselaw where a

parole board’s customs—rather than policies and

state statutes—created an expectation of parole

sufficient to establish a liberty interest.

Though we have typically conducted a

statutory analysis, see Crump, 657 F.3d at 399, the

Supreme Court has suggested that a parole board’s

practices could confer a liberty interest. See

Greenholtz, 442 U.S. at 4 (“The procedures used by

the Board to determine whether to grant or deny

discretionary parole arise partly from statutory

provisions and partly from the Board’s practices.”);

see also Allen, 482 U.S. at 373 n.3 (“There is far more

25a

to liberty than interests conferred by language in

state statutes.”). A future case may present

allegations that demonstrate practices conferring a

liberty interest in parole, even where the state’s

statute does not contain the presumption language in

Greenholtz or Allen. But plaintiffs do not develop this

argument or include plausible allegations of customs

that create a legitimate expectation of parole.

Accordingly, plaintiffs’ customs-based arguments do

not demonstrate a protected liberty interest.

Although plaintiffs do not demonstrate a

protected liberty interest, they identify serious issues

with STRONG-R. Recognizing that STRONG-R is a

new technology that continues to be refined, we

nonetheless remind the Board, in its oversight role

regarding the state parole system, of the Tennessee

legislature's instruction that the Board consider an

inmate's "individual characteristics, circumstances,

needs and potentialities" in making parole decisions.

See Tenn. Code Ann. § 40-28-101(a) (2025); Zachary

Hamilton, et al., Never Going to Let You Down:

Preventing Predictive Shrinkage via the STRONG-R

Assessment Method, Just. Q. 3 (Aug. 7, 2024).

Relatedly, the lack of opportunity to address the

inaccuracies with STRONG-R could demonstrate a

lack of due process. Supreme Court precedent,

however, precludes us from reaching those due

process concerns. Tennessee's statutes do not confer

26a

a liberty interest, regardless of plaintiffs' legitimate

belief that had their STRONG-R results been

accurate, they would have received parole. See

Greenholtz, 442 U.S. at 30 (Marshall, J., dissenting)

(“[I]n light of the role that parole has assumed in the

sentencing process, I believe the Court misapplies its

own test . . . by refusing to acknowledge that inmates

have a legitimate expectation of release whenever

the government establishes a parole system.”).

Finally, defendants raise a litany of issues on

appeal that they did not raise below, likely forfeiting

those issues for this appeal of the district court's

Rule 12(b)(6) order. See Bannister v. Knox Cnty. Bd.

of Educ., 49 F.4th 1000, 1011 (6th Cir. 2022) (“A

forfeiture occurs when a party fails to timely assert a

claim, even if the party does so unintentionally[.]”).

In any case, because we conclude that the district

court correctly dismissed plaintiffs' claim for failure

to state a claim, we need not address defendants'

remaining arguments.

IV.

For these reasons, we affirm the district

court’s determination that plaintiffs fail to plead a

plausible liberty interest in parole.

27a

APPENDIX B

General Docket

United States Court of Appeals

for the Sixth Circuit

Court of Appeals Docket #: 24-5637

Docketed:

07/16/2024

Termed:

06/09/2025

Nature of Suit: 3550 Prisoner: Civil Rights

Carvin Thomas, et al v. Richard Montgomery, et al

Appeal From: Middle District of Tennessee at

Nashville

Fee Status: fee paid

Case Type Information:

Prisoner

State

Prisoner Civil Rights

Originating Court Information:

District: 0650-3 : 3-23-CV-01204

Trial Judge: William Lynn Campbell, Junior,

U.S. District Judge

28a

Date Filed: 11/15/2023

Date Order/Judgment:

06/17/2024

Date NOA Filed:

07/17/2024

[. . . .]

06/09/2025 33 OPINION and JUDGMENT filed :

AFFIRMED. Mandate to issue. Decision for

publication. R. Guy Cole, Jr.

(AUTHORING), Jane Branstetter Stranch, and Chad

A. Readler, Circuit Judges. (CL) [Entered: 06/09/2025

03:06 PM]

06/23/2025 34 PETITION for en banc rehearing

filed by Mr. Paul Andrew Justice, III for Terrell

Lawrence and Carvin L. Thomas. Certificate of

Service: 06/23/2025. [24-5637] (PAJ) [Entered:

06/23/2025 11:57 PM]

07/14/2025 35 ORDER filed denying petition for en

banc rehearing [34] filed by Mr. Paul Andrew

Justice, III. R. Guy Cole, Jr., Jane

Branstetter Stranch, and Chad A. Readler, Circuit

Judges. (BLH) [Entered: 07/14/2025 10:06 AM]

07/22/2025 36 MANDATE ISSUED with no costs

taxed. (PJE) [Entered: 07/22/2025 07:11 AM]

29a

APPENDIX C

No. 24-5637

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CARVIN L. THOMAS and TERRELL LAWRENCE,

on behalf of themselves and others similarly

situated,

Plaintiffs-Appellants,

ORDER

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole; ZANE DUNCAN; GARY

M. FAULCON; TIM GOBBLE; MAE BEAVERS;

ROBERTA NEVIL KUSTOFF; BARRETT RICH, as

Members of the Tennessee Board of Parole,

Defendants-Appellees.

BEFORE: COLE, STRANCH, and READLER,

Circuit Judges.

30a

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition

then was circulated to the full court. No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

ENTERED BY ORDER

OF THE COURT

Kelly L. Stephens, Clerk

31a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CARVIN THOMAS, and TERRELL LAWRENCE,

on behalf of themselves and others similarly

situated,

Plaintiffs,

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole, et al.,

Defendants.

NO. 3:23-cv-01204

CHIEF JUDGE CAMPBELL

MAGISTRATE JUDGE FRENSLEY

ORDER

For the reasons stated in the accompanying

Memorandum, Defendants' Motion to Dismiss (Doc.

32a

No. 14) is GRANTED and this case is hereby

DISMISSED.

The Clerk is directed to close the file.

WILLIAM L. CAMPBELL, JR.

CHIEF UNITED STATES

DISTRICT JUDGE

33a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CARVIN THOMAS, and TERRELL LAWRENCE,

on behalf of themselves and others similarly

situated,

Plaintiffs,

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole, et al.,

Defendants.

NO. 3:23-cv-01204

CHIEF JUDGE CAMPBELL

MAGISTRATE JUDGE FRENSLEY

MEMORANDUM

After serving "many years in prison" in the

State of Tennessee, Plaintiffs Carvin Thomas and

Terrell Lawrence, sought and were denied parole by

the Tennessee Board of Parole. (See Am. Compl.,

Doc. No. 12 at ¶¶ 29, 43, 46, 50). Plaintiffs bring this

34a

case under 42 U.S.C. § 1983 against members of the

Tennessee Board of Parole, arguing that the Board of

Parole’s use of a risk assessment tool called

“STRONG-R” and Defendants’ alleged inability to

challenge the STRONG-R assessment violates their

due process rights under the Fourteenth

Amendment. (See id. at ¶¶ 79-80). Plaintiffs seek

declaratory and injunctive relief.

Now before the Court is Defendants’ Motion to

Dismiss (Doc No. 14) and Plaintiffs’ response (Doc.

No. 15). In their response, Plaintiffs stated that they

both “currently have pending cases before the

Davidson County Chancery Court, seeking to reverse

the parole hearings on writ of certiorari.” (Doc. No.

15 at 7, n. 2). The Court Ordered Plaintiffs to file

copies of any petitions filed by either of them in

Davidson County Chancery Court related to their

parole (Doc. No. 22), which they have done (Doc. No.

23).

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6)

permits dismissal of a complaint for failure to state a

claim upon which relief can be granted. For purposes

of a motion to dismiss, a court must take all of the

factual allegations in the complaint as true. Ashcroft

v. Iqbal, 556 U.S. 662 (2009). To survive a motion to

35a

dismiss, a complaint must contain sufficient factual

allegations, accepted as true, to state a claim for

relief that is plausible on its face. Id. at 678. A claim

has facial plausibility when the plaintiff pleads facts

that allow the court to draw the reasonable inference

that the defendant is liable for the misconduct

alleged. Id. In reviewing a motion to dismiss, the

Court construes the complaint in the light most

favorable to the plaintiff, accepts its allegations as

true, and draws all reasonable inferences in favor of

the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). Thus, dismissal is appropriate

only if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which

would entitle him to relief.” Guzman v. U.S. Dep’t of

Children’s Servs., 679 F.3d 425, 429 (6th Cir. 2012).

In considering a Rule 12(b)(6) motion, the

Court may consider the complaint and any exhibits

attached thereto, public records, items appearing in

the record of the case, and exhibits attached to a

defendant’s motion to dismiss provided they are

referred to in the Complaint and are central to the

claims. Bassett v. National Collegiate Athletic Assn.,

528 F.3d 426, 430 (6th Cir. 2008). Here the Court has

considered Plaintiffs’ Davidson County Chancery

Court filings (Doc. No. 23), which are public records.

36a

II.

ANALYSIS

Heck Doctrine

Defendants first attack the viability of the

Plaintiffs’ claims under Heck v. Humphrey, 512 U.S.

477 (1994). In the main, Heck addresses “whether a

state prisoner may challenge the constitutionality of

his conviction in a suit for damages under 42 U.S.C.

§ 1983.” Id. at 478. Here, Plaintiffs do not seek

monetary damages related to the process used by

Defendants when making parole determinations, but

instead seek injunctive relief. A more applicable and

recent Supreme Court case, Wilkinson v. Dotson, 544

U.S. 74 (2005), looked at whether a suit seeking

declaratory and injunctive relief related to state

parole procedures is actionable under Section 1983.

In Wilkinson, the Court reiterated its previous

holding that a prisoner in state custody “cannot use a

§ 1983 action to challenge ‘the fact or duration of his

confinement.’” Id. at 78 (citations omitted). The

Court continued to differentiate between Section

1983 claims that attack previous decisions related to

the duration of confinement – which are prohibited

under Heck – and claims that seek an injunction

against future unconstitutional procedures – which

are allowed and do not fall within the exclusive

purview of habeas relief. Id. at 79-81.

37a

Plaintiffs’ demand for a “declaration that the

Defendants have violated [Plaintiffs’] rights under

the Fourteenth Amendment” based on past parole

decisions cannot constitute a cognizable Section 1983

remedy under Heck and Wilkinson. Heck and

Wilkinson do not, however, prohibit prospective

injunctive

relief

against

the

allegedly

unconstitutional practices. But that takes the Court

to the second of Defendants’ arguments in favor of

dismissal – that Plaintiffs fail to state a Section 1983

claim for which relief can be granted.

Failure to State a Claim

There is no constitutional right to parole, and,

because Tennessee has not created an entitlement to

parole, Tennessee inmates do not have a

constitutionally protected liberty interest in parole.

See Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1 (1979); Bd. of Pardons v. Allen,

482 U.S. 369 (1987); Crump v. Lafler, 657 F.3d 393,

397 (6th Cir. 2011). However, under the law of this

Circuit, a Section 1983 claim based on the procedural

due process afforded in the parole process can stand

under limited circumstances. Specifically, due

process requires only that “parole proceedings

[afford] the inmate an opportunity to be heard, and,

if parole is denied, the Parole Board informs the

inmate of the basis upon which it denied parole.”

38a

Seagroves v. Tenn. Bd. of Probation and Parole, 86 F.

App’x 45, 48 (6th Cir. 2003) (citing Greenholtz, 442

U.S. at 16).

Plaintiff Thomas alleges that he attended a

parole hearing in January 2023 and was informed of

the basis for denial of parole. (Am. Compl., Doc. No.

12 at ¶¶ 36, 43). Likewise, Plaintiff Lawrence

attended a parole hearing and was advised of the

denial of parole in November 2022. (Id. at ¶¶ 50-52).

The Amended Complaint makes clear that the due

process requirements afforded to parole hearings

were followed. Plaintiffs’ claim, however, challenges

the information the parole officers used in making

the ultimate decision of denial of parole. This Court

has repeatedly held that, assuming the basic due

process rights were afforded to an inmate during a

parole hearing – which the Plaintiffs agree occurred

here – challenges to how and why a parole decision

was made cannot serve as the basis for a right to

relief under Section 1983. See Boyd v. Staggs, No.

1:19-cv-00007, 2019 WL 295087, at * 4 (M.D. Tenn.

Jan. 23, 2019); Rucker v. Purviance, No. 3:21-cv00555, 2022 WL 409691, at *7-8 (M.D. Tenn. Feb. 9,

2022).

Plaintiffs are not without remedy because

Tennessee law allows an inmate to seek review of

decisions made by parole boards. Greenwood v. Tenn.

39a

Bd. of Parole, 547 S.W.3d 207, 213 (Tenn. Ct. App.

2017). Indeed, both Plaintiffs have availed

themselves of that review process. (See Doc. No. 23

(Chancery filings)). Regardless, Plaintiffs have failed

to state claims for which relief can be granted under

federal law.

III.

CONCLUSION

For the reasons stated herein, Defendants'

Motion to Dismiss (Doc. No. 14) is GRANTED.

An appropriate Order will enter.

WILLIAM L. CAMPBELL, JR.

CHIEF UNITED STATES

DISTRICT JUDGE

40a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

CARVIN THOMAS, and TERRELL LAWRENCE, on

behalf of themselves and others similarly

situated,

3:23-cv-1204

Plaintiffs

District Judge Campbell

Magistrate Judge Frensley

RICHARD MONTGOMERY, as Chairman of the

Tennessee Board of Parole,

ZANE DUNCAN, as a Member of the Tennessee

Board of Parole,

GARY FAULCON, as a Member of the Tennessee

Board of Parole,

TIM GOBBLE, as a Member of the Tennessee Board

of Parole,

MAE BEAVERS, as a Member of the Tennessee

Board of Parole,

ROBERTA KUSTOFF, as a Member of the Tennessee

Board of Parole, and

BARRETT RICH, as a Member of the Tennessee

Board of Parole,

Defendants

41a

_________________________________________________

AMENDED COMPLAINT

_________________________________________________

Plaintiffs Carvin Thomas and Terrell

Lawrence, on behalf of themselves and all others

similarly situated, bring amended suit as follows: 1

INTRODUCTION

This lawsuit deals with the unfair and

illegal procedures carried out by the Tennessee

Board of Parole. Namely, the Board bases its parole

decisions on a corrupt and unreliable computer

program, abdicating responsibility to the algorithm

to do its job of deciding whether inmates are suitable

for release from prison. Worse yet, the Board then

prohibits inmates from effectively challenging the

computer's rulings.

THE PARTIES

Plaintiff Carvin Thomas is an inmate

serving an effective 48-year sentence for various

This amendment is being filed, as of right, within 21 days of

the Defendants' initial response.

42a

crimes, all committed during two incidents in 1998.

His convictions included Aggravated Robbery,

Attempted

Especially

Aggravated

Robbery,

Aggravated

Burglary,

Especially

Aggravated

Kidnapping, and Possession of a Weapon.

Plaintiff Terrell Lawrence is another

inmate serving a prison sentence in Tennessee.

Although his consecutive stack also originally

included very serious crimes in the past, currently he

has finished all sentences — except one. Namely, he

is now serving a sentence for Carjacking, a Class C

felony.

Defendants Richard Montgomery, Zane

Duncan, Gary Faulcon, Tim Gobble, Mae Beavers,

Roberta Kustoff, and Barrett Rich are the Chairman

and Members of the Tennessee Board of Parole. This

state agency (the "Parole Board") decides when

inmates gain early release from prison. These

Defendants are sued in their official capacity only, as

Chairman and Members of the Board. Namely, they

are sued because they generally participate in all the

acts of said Board.

At all points relevant, these Defendants

have acted under color of law.

43a

LIBERTY INTEREST

Tennessee law creates a liberty interest

in the expectation of parole for suitable applicants. It

is important to establish this point first, as otherwise

the federal claim raised here (Denial of Procedural

Due Process) would fail.

First, Tennessee law provides that "no

prisoner shall be released merely as a reward for

good conduct or efficient performance of duties

assigned in prison, but only if the board is of the

opinion that there is a reasonable probability that

the prisoner, if released, will live and remain at

liberty without violating the law, and that the

prisoner's release is not incompatible with the

welfare of society." Tenn. Code Ann. § 40-28-117(a).

Grammatically, this statement is simply a

roundabout way of saying, "[Any] prisoner shall be

released . . . if the board is of [said] opinion[.]" See id.

(emphasis added). In other words, depending on how

one looks at it, the word "shall" is either outright

used, or else implied. Right off the bat, the word

"shall" in this context thereby suggests a liberty

interest in parole. Mayes v. Trammell, 751 F.2d 175,

177 (6th Cir. 1984). But that is only the start.

More importantly, the Tennessee Code

clarifies its terms and flatly restricts the Parole

44a

Board's discretion. Curtailment of discretion is the

essence of establishing a liberty interest. Board of

Pardons v. Allen, 482 U.S. 369, 383-84 (1987)

(internal citations omitted). Here, Tennessee law

spells out exactly what it means to find that a

prisoner will live lawfully and not endanger the

societal welfare. To be clear, the full language of

Tenn. Code Ann. § 40-28-117(a) (the law already

cited above) says, "Parole being a privilege and not a

right, no prisoner shall be released merely as a

reward for good conduct . . . , but only if the board is

of the opinion" that the inmate will live lawfully and

avoid endangering society. Using the same language,

a corresponding statute then defines and restricts

the discretion. It says, "Release on parole is a

privilege and not a right, and no inmate convicted

shall be granted parole if the board finds" at least

one of four criteria, which are then listed. Tenn. Code

Ann. § 40-35-503(b). The four grounds for denying

parole are: (1) Substantial risk of violating parole, (2)

Seriousness of the offense, (3) Discipline problems in

prison, or (4) The need for further education,

training, or treatment in prison. Id. Hence, the latter

statute is obviously more well-defined than the first.

But under the principle of In pari materia, statutes

on a similar topic should be read together. Here

these two statutes involve the same topic, and they

even use the same language (about parole being a

privilege). Hence, they should be read together.

45a

Reading them together, we learn that parole is a

privilege and not a right, specifically in the sense that

only inmates who avoid the four pitfalls listed in

Tenn. Code Ann. § 40-35-503(b) are likely to live

lawfully and avoid harming society. In other words,

reading the two laws together, we find that inmates

who avoid the four pitfalls shall be paroled.

The four pitfalls are taken from — or at

least closely resemble — the four grounds for denying

parole listed in Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex, 442 U.S. 1, 11

(1979). In that case, the Supreme Court held that

where a parole board could only deny parole upon

finding one of these four grounds, a meritorious

inmate had a liberty interest in getting parole.

10)

Modern changes in Tennessee law now

expressly require that the Board not only have a

reason for denying parole, but also that it list the

reason in writing. Tenn. Code Ann. § 40-35-503(j).

Notably, the case of Greenholtz emphasized the link

between a right to due process, and the right to be

given a reason for the denial of parole. 442 U.S. 1, at

16. To fulfill this law requiring a reason, the

Tennessee Parole Board always recites at least one of

the four grounds from § 40-35-503(b) as a reason on

its denial notice.2 Conversely, when none of the four

Arguably, subsections (c) and (g) of Tenn. Code Ann. § 4035-503 could create two additional criteria for denying

46a

grounds is even arguably met, then the inmate

simply gets paroled.

11)

Similarly, the statute Tenn. Code Ann. §

40-35-503(b)(2)(A) also requires that the Board have

a reason for denying parole. And for the crimes not

listed in this subsection (i.e., for all lesser crimes),

even the vague ground of seriousness of the offense is

insufficient to deny parole. Id. Some other ground, in

addition to seriousness, must also be found before

parole can be denied for these inmates. Hence, for

the lesser crimes, discretion is narrowed still further.

Rather than four potential pitfalls, effectively they

become only three.

12)

Hence, all in all, the Parole Board does

not have — or even claim to have — any authority to

deny parole without reason. Nor does the Board even

claim to have any authority to deny parole based on

extrinsic, new criteria unlisted in Tenn. Code Ann. §

40-35-503(b). Instead, Tennessee law restricts the

Board to only denying parole under the four grounds

listed above — the same grounds named in

Greenholtz, 442 U.S. 1, 11 where a liberty interest

parole, namely the failure by a sex offender to pass a psyche

exam, and the failure of a prisoner to take advantage of

educational opportunities. But as far as the Plaintiffs are

aware, the Parole Board would simply classify these specific

grounds under the broader categories of (b)(1) (Likelihood of

violating parole) or (b)(4) (The need for education, training,

or treatment in prison).

47a

was present. If these four listed pitfalls are avoided,

then the law is that the inmate shall be released.

13)

Finally, state law further curtails

discretion by specifically prohibiting the very conduct

that the Board is doing here. Again, a state may

create a protected liberty interest by placing

substantive limitations on discretion. Allen, 482 U.S.

369, at 383-84 (internal citations omitted). That has

occurred. As discussed further in the next section,

Tennessee curtails the Board's discretion further by

eliminating its authority to do the very thing charged

herein — denying parole based on a risk and needs

assessment. Instead, Tennessee law lays out the

three purposes for which the assessment may be

employed. Granting or denying parole is not among

them. Tenn. Code Ann. § 41-1-126(c). Instead, in the

context of parole, the assessment is statutorily

supposed to be used only for crafting the rules and

programs of parole — not granting or denying parole

altogether. Id.

14)

For all the above reasons, inmates in

Tennessee have a liberty interest, as guaranteed by

the Fourteenth Amendment. When a liberty interest

arises in expecting parole, said amendment requires

that the state at least administer "fair procedures"

before ripping away said interest. See Swarthout v.

Cooke, 562 U.S. 216, 131 S.Ct. 859, 862 (2011).

48a

STRONG-R ASSESSMENT

15)

The problem here, though, is that

inmates have not received fair procedures. That is

because the Tennessee Board of Parole has a policy

— or else a widespread custom with the force of law

— of judging inmates' fitness for parole using a

computerized test called the "Strong-R Assessment."

It is a test whose results are unauthenticated and

unreliable. Yet it is also a test for which the Parole

Board will tolerate no challenge.

16)

The STRONG-R assessment grades

inmates in multiple categories, listing areas where

the inmate may need help for living rightly. For

example, it decides whether the inmate's housing

situation, family life, or mental health is

problematic. In this way, the test purports to offer

wisdom on what prison programs or other services

should be offered, or what parole rules imposed, to

help the inmate turn into an upstanding citizen. For

these three purposes — setting prison programs,

setting parole rules, and setting parole programs —

Tennessee law requires that each inmate be tested

on a yearly basis. Tenn. Code Ann. § 41-1-126(c).

49a

17)

If the Parole Board simply used the

Strong-R for these three purposes, no one would even

object — no matter how flawed the program may be.

No one has any liberty interest in avoiding classes in

prison, or in being picky about parole conditions.

Hence, even if anyone objected to the STRONG-R

test for these three areas, at least no one could sue.

18)

Unfortunately, the Parole Board goes

beyond the Tennessee statutory purposes. It uses the

Strong-R for broader purposes. Specifically, it uses

the Strong-R to decide whether an inmate gets

paroled.

19)

That

because,

besides

the

aforementioned categories of "need," such as mental

health or housing, the Strong-R more broadly scores

an inmate's overall "risk." The risk can be "High,"

"Moderate," or "Low."

20)

The Parole Board has engaged in a

policy of equating the Strong-R's "High" risk category

as grounds for denying parole. Upon information and

belief, the Board also does the same with the

"Moderate" category. Specifically, the Board simply

looks at the High or Moderate risk scores, and then it

equates these scores to one of the four pitfalls: "a

substantial risk that the incarcerated individual will

not conform to the conditions of the release program."

50a

See Tenn. Code Ann. § 40-35-503(b)(1). In this way,

the Board views the High or Moderate scores as

justifying — or even mandating — denial of parole.

21)

Upon any denial of parole, the Board is

required to give advice to the inmate on how best to

improve his chances next time. Tenn. Code Ann. §

40-35-503(j). But on every single denial notification,

the Board simply gives the following line for how to

improve: "Complete Programming As Recommended

by Strong R Assessment."

22)

All in all, the Parole Board has thus

outsourced all of its discretion, and all of its duty to

investigate the "substantial risk" ground for denial,

over to the mechanistic judgment of a computer

program.

UNRELIABILITY OF THE COMPUTER

PROGRAM

23)

On various occasions, Tennessee courts

have noted that the Strong-R assessment is

unreliable. In one case, a sentencing judge outright

held the assessment neither valid nor reliable. State

v. Johnson, M2018-01257-CCA-R3-CD slip op. at *3

(Tenn. Crim. App. April 16, 2019). In another, a

sentencing judge announced that he considered the

51a

assessment as required, but viewed it as "irrelevant,"

"about as worthless and insensitive to what

happened here as you can get." State v. Solomon,

M2018-00456-CCA-R3-CD slip op. at *8 (Tenn. Crim.

App. Oct. 23, 2018). In another case, a judge pointed

out one of the STRONG-R's many holes:

[I]t is possible that you could have different

offenses occurring over a period of time, but

because of the happenstance of court

scheduling and a resolution on one particular

day, those are counted under the STRONG-R

assessment as only one conviction. That

strikes me as bizarre, but that's where it is.

State v. Gilley, E2018-00691-CCA-R3-CD slip op. at

*3 (Tenn. Crim. App. March 14, 2019). Or as another

judge said, "I'm not going to rely on the needs

assessment provided by the Department of

Corrections. I don't find it valid or in any way related

to this case." State v. McNew, M2020-01227-CCA-R3CD slip op. (Tenn. Crim. App. Sept. 22, 2021).

24)

Generally, correctional employees are

not adequately trained to administer the Strong-R

test properly.

25)

For example, the assessment asks

numerous questions about an inmate's life and

52a

history, and then correctional employees are

supposed to answer those questions on behalf of the

inmates, correctly inputting the information into the

computer. Ideally, the employee will do so, accurately

relaying the questions to the inmate and then

accurately inputting the inmate's answers into the

computer. But sometimes the employees simply fail.

Other times, as addressed later with regard to

Plaintiff Lawrence, sometimes the employee simply

answers the questions for the inmate all on his own.

26)

Still other times, the questions are

subjective and do not even call for clear, concrete

answers — arguably making it irrelevant who is

answering them. Or the questions are simply asked

in a specific way and interpreted idiosyncratically by

the computer. If the employee does not understand

what facts the computer means to consider, then a

false result may occur simply due to the tester's

misunderstanding the point of the vague question.

27)

On numerous occasions, members of the

Parole Board have been advised that the STRONG-R

test is unreliable. Nonetheless, due to deliberate

indifference to constitutional rights, the Defendants

have persisted with their policy of outsourcing parole

decisions to this unreliable computer program.

53a

28)

On information and belief, neither the

Parole Board, nor the Department of Correction (the

entity most closely involved in administering the

test), nor anyone else, takes meaningful steps to

validate the STRONG-R test. Instead, the Parole

Board has simply taken a test that the General

Assembly mandated for setting prison and parole

programs, and then run with it.

CARVIN THOMAS

29)

In the case of Plaintiff Carvin Thomas,

who has spent many years in prison, historically his

yearly STRONG-R "risk" results would come back as

either "Low" or, in some cases, "Moderate."

30)

But that all changed in 2022, when he

got transferred to the Bledsoe County Correctional

Complex. There, he interacted with different

counselors, who had inferior training about how to

administer the assessment.

31)

Despite not developing any new drug

problem, or getting into any new fights, or getting

into any other recent trouble, at the Bledsoe Prison

the STRONG-R result for Thomas now showed him

as "High" risk, and even likely to become violent.

54a

32)

Somehow, despite the fact that the

prison system and Parole Board generally keep the

STRONG-R methodology a secret, Thomas managed

to acquire some paperwork showing some of the more

detailed factual results from his STRONG-R test.

33)

Among the detailed results, many of the

allegations made against Thomas were false. In fact,

some were outright bizarre. For example, the

STRONG-R falsely reported that Thomas had, at

some point, been confined to a mental asylum.

Falsely it said that he gives off signs of mental

illness. Falsely it said that he had committed crimes

in his past due to non-compliance with mental health

medications. In reality, Thomas has never been

prescribed any psychological medications, diagnosed

with any mental illness, or confined to any mental

institution.

34)

Falsely the STRONG-R also said that

Thomas had committed his crimes (decades ago)

simply for thrill or pleasure, suggesting that he were

a psychopath. In reality, Thomas had committed his

robbery-related crimes simply because he was trying

to acquire money — albeit in a foolish and violent

way.

35)

Falsely the STRONG-R said that

Thomas had been subject to a drug addiction in the

55a

past six months. Falsely it said that Thomas had

specifically used cocaine in the past six months.

Falsely it said that a drug or alcohol problem had, in

the last six months, kept him from maintaining "prosocial" friends. Falsely it said that drug or alcohol

abuse had, in the last six months, led to family strife.

In reality, these allegations were all false because

Thomas has been sober for many, many years.

36)

After learning about the erroneous

results, Thomas and his attorney attended a

scheduled parole hearing in January 2023. At the

start of the hearing, they asked that the Parole

Board continue the hearing, and re-test Thomas,

because his STRONG-R results were clearly wrong.

The Board did grant a four-month continuance —

required by Tennessee law, as a matter of right. But

the continuance was largely useless because it

refused to order any re-testing.

37)

Still, upon being pressured by Thomas

and his attorney, eventually the Bledsoe Prison

counselors decided to "audit" Thomas's STRONG-R

result.

38)

While the audit was in progress,

though, the prison counselor who first performed the

test threatened Thomas, telling him that he simply

56a

needed to drop the matter — or that things might get

"worse."

39)

Despite being asked by Thomas and his

attorney for the results, ultimately the counselors

never would reveal to Thomas or his attorney the

results of their "audit."

40)

At a follow-up parole hearing, later a

hearing officer announced — based on ex parte

communications from the Bledsoe Prison counselors

to the Parole Board — that their audit found that

they had done everything right, and that Thomas

really was "High" risk.

41)

Without ever getting any useful

information about why the STRONG-R results were

so erroneous, Thomas simply informed the Board at

his May 15, 2023 hearing that his purported

STRONG-R result was inaccurate. He further said

that he had always tested better in the past, and that

nothing had changed except for moving to a new

prison. In advance of the hearing, one of Thomas's

supporters also sent a letter to the Board, listing

about a dozen concrete ways that Thomas's

STRONG-R result was factually wrong.

42)

At the hearing, no witness ever testified

that the STRONG-R result was accurate. This

57a

scenario is common, as the STRONG-R results are

never authenticated in parole hearings. Instead, at

Thomas's hearing, the only witnesses and

(numerous) letter-writers were all supportive of

Thomas, saying that he needed to be paroled.

43)

Despite no showing of authenticity for

the STRONG-R, and despite the clear evidence of

falsity, the hearing officer announced a denial of

parole based mainly on the STRONG-R. Days later,

the Parole Board held the same way.

44)

In denying relief, the Parole Board

followed the law in giving Thomas advice about how

to improve next time: It told him that he would do

better next time if he followed the STRONG-R.

TERRELL LAWRENCE

45)

Plaintiff Terrell Lawrence likewise

began preparing for his own parole hearing, to be

held on November 15, 2022. In prior years, Lawrence

had scored Low on his STRONG-R risk. But in the

Spring of 2022, despite experiencing no new

difficulties,

inexplicably

scored

"High."

Consequently, he began to worry about how this

parole hearing would go.

58a

46)

Lawrence had served many years in

prison, and as such, his only remaining sentence was

for Carjacking — only a Class C felony.

Consequently, according to Tenn. Code Ann. § 40-35503(b)(2), the Parole Board would not be allowed to

deny him solely based on the seriousness of the

offense. Instead, he could only be denied if the Parole

Board had evidence to meet one of the other three

criteria.

47)

Lawrence had no recent disciplinary

problems, a pitfall that can sometimes interfere with

getting paroled.

48)

Further, after many years in the

system, Lawrence had taken every rehabilitative

program that the prison system had to offer. Most

importantly, he had successfully completed the

TDOC's best program of all — CBIP (Cognitive

Behavioral Intervention Program).

49)

Ominously, though, the artificial

"intelligence" of the STRONG-R was giving its

recommendation for a rehabilitative task that,

supposedly, Lawrence still lacked: Complete CBIP.

50)

At the hearing on November 15, 2022,

the hearing officer denied parole. Several days later

on November 19, 2022, the Parole Board agreed and

59a

entered judgment to that effect. The Board put

Lawrence off for two years.

51)

Ultimately, the key ground for denying

parole, as listed by the hearing officer, and later

affirmed by the Board, was Lawrence's STRONG-R.

52)

To be clear, the Board did also list that

Lawrence was denied for the seriousness of the

offense. But for Carjacking, seriousness of the offense

cannot be the sole reason for denial. See Tenn. Code

Ann. § 40-35-503(b)(1). Hence, the STRONG-R

undeniably formed the deciding factor for Lawrence's

denial.

53)

Again, the denial notice recommended

how Lawrence could improve his chances next time:

Complete the programming recommended by

STRONG-R (which, in this context, meant Complete

CBIP, a program already completed).

54)

Lawrence filed a timely administrative

appeal, faulting the Parole Board for (among other

things) its use of the STRONG-R.

55)

While the appeal was underway, in May

2023 Lawrence was re-tested, and this time his

STRONG-R actually came back "Low." Importantly,

nothing noteworthy had changed in between the

60a

previous "High" test, and the new favorable "Low." It

was as though the STRONG-R results were simply

random.

56)

But regardless of how the new,

exculpatory evidence came about, Lawrence promptly

forwarded it to his attorney. On May 24, 2023, his

attorney turned in a supplement to Lawrence's

administrative appeal, listing the "Low" score as

new, exculpatory evidence. New evidence is supposed

to be one of the allowed grounds for these appeals.

57)

Nonetheless, within only about one

business day after the supplemental appeal was filed

— notifying the Parole Board that Lawrence was

now "Low" risk — a prison counselor began

tampering with the score to raise it back up.

Specifically, without ever asking Lawrence any

questions, he began to input new data into the

STRONG-R computer program, apparently in an

effort to raise Lawrence's risk level. As a result, the

counselor then produced a third score, this time

showing Lawrence's risk as "Moderate."

58)

Other than this tampering, the appeal

was ignored for roughly another six months, and

then denied without explanation.

61a

59)

Even though Lawrence had not even

participated in this third STRONG-R questionnaire

at all, the prison counselor then coerced him to sign

the paper saying that he had been tested.

SECRECY AND OPACITY

60)

Ultimately, the Parole Board has a

policy of keeping the Strong-R results secret. They

are kept unknown to the inmate prior to the hearing.

As stated, Thomas's final "audit" result was sprung

on him at the hearing, resulting from an ex parte

communication. In fact, even after the hearing, the

Board still keeps them confidential — as though they

were records of the Central Intelligence Agency. For

example, in state judicial review hearings, typically

the Board will keep the STRONG-R evidence sealed,

and even go so far as to present it ex parte to the state

judge while denying access to the inmate. Due to its

policy on secrecy, the Parole Board actively works to

ensure that no inmate can meaningfully challenge or

address the Strong-R results.

61)

Officially, the Tennessee Department of

Correction has a similar policy of refusing to release

the Strong-R results. But as alluded to herein, the

TDOC's privacy policy is less pronounced. Hence,

these two lead Plaintiffs were able to acquire at least

62a

some of their paperwork from the prison (even

though it is officially against policy).

62)

Nonetheless, even where an inmate

protests that his Strong-R result is flawed, the Parole

Board will not allow inmates to subpoena the

detailed results, or subpoena the officer who input

the information into the Strong-R.

63)

Specifically with regard to the hearing

of Thomas, Thomas attempted to subpoena the

officer who input the false data, only to be denied.

64)

Broadly, the Board takes the position

that subpoenas in parole grant hearings are never

allowed.

CLASS ACTION ALLEGATIONS

65)

To be clear, Plaintiffs Thomas and

Lawrence bring these claims not only on their own

behalf. Instead, if the Court approves of the class

certification pursuant to Federal Rules of Civil

Procedure 23(a)(1)-(4) and 23(b)(2), then they also

would bring claims on behalf of the following Class:

63a

All people who are, or will be, eligible for

parole and given a parole grant hearing in

Tennessee.

66)

Under Federal Rule of Civil Procedure

23(a), certification of a class is appropriate where: (1)

the class is so numerous that joinder of all members

is impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or

defenses of the class; and (4) the representative

parties will fairly and adequately protect the

interests of the class. Fed. R. Civ. P. 23(a).

67)

Here the precise size of the class is

unknown, especially because it is forward-looking.

But it is substantial, given that numerous (likely

hundreds of) parole grant hearings are held each

year.

68)

Carvin Thomas and Terrell Lawrence

are members of the Class.

69)

The Class is so numerous that joinder of

all members is impracticable. The proposed Class

consists of easily more than one hundred persons.

70)

There are questions of law and fact

common to the Class that predominate over any

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questions only affecting individual members. Such

questions include the following:

(i)

Does Tennessee law, policy, or custom

with the force of law provide for a

liberty interest in a parole grant

hearing?

(ii)

Does it violate procedural due process to

base the result of a hearing on an

unreliable, unauthenticated computer

program?

the

STRONG-R

assessment

unreliable and unauthenticated as

applied to these parole grant hearings?

(iii)

(iv)

Does it violate procedural due process to

bar an inmate from challenging the

results of said computer program, such

as by denying subpoenas, keeping the

data secret, and ignoring testimony or

protests that the program is inaccurate

while failing to require any foundation

that the testing is accurate in the first

place?

71)

The claims of Thomas and Lawrence are

typical of the Class, and arise out of similar facts.

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72)

Thomas, Lawrence, and their counsel

will adequately represent the interests of the Class.

73)

Neither Thomas and Lawrence nor their

counsel has any interest that would preclude them

from vigorously pursuing the action.

74)

The proposed class counsel has

practiced law for about thirteen years, and he

possesses relatively broad experience in litigating

federal civil rights claims, as well as in criminal law.

75)

The likelihood that other individual

members of the Class will prosecute separate actions

is remote, especially since they are typically

incarcerated and impoverished.

JURISDICTION

76)

This federal District Court has subjectmatter jurisdiction under 28 U.S.C. § 1331 because

the lawsuit raises a federal question.

77)

This Court in Tennessee has personal

jurisdiction because the Defendants are citizens of

Tennessee.

78)

Venue is proper in the Middle District,

Nashville Division, because the Defendants reside

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there, or at least the office does under which they are

sued. Namely, the Parole Board makes its key

decisions at its base in Nashville.

CLAIMS FOR RELIEF

COUNT I

DENIAL OF PROCEDURAL DUE PROCESS

42 U.S.C. § 1983

79)

reference.

The other sections are incorporated by

80)

By deciding parole based on an

unreliable computer program, and/or by preventing

the inmates from even challenging the program's

rulings — even though the inmates have a liberty

interest in the parole process — all named

Defendants have denied the Plaintiffs procedural due

process in violation of the Fourteenth Amendment.

Further, they have done so under color of law.

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PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED,

Plaintiffs Carvin Thomas and Terrell Lawrence, on

their own behalf and on behalf of others in the

proposed class, pray for the following:

Certification of a class under Fed. R.

Civ. P. 23(a) and (b)(2), represented by

named Plaintiffs Carvin Thomas and

Terrell Lawrence;

ii)

A declaration that the Defendants have

violated Thomas's, Lawrence's, and

class members' rights under the

Fourteenth Amendment, as alleged

herein;

iii)

A temporary restraining order requiring

that the various Chairman and

Members of the Board grant Thomas,

Lawrence, and all other class members

who have already been denied parole a

new and prompt parole hearing — but

this time, without any consideration of

the unreliable STRONG-R test;

iv)

preliminary

and

permanent

injunction requiring the same, and

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further requiring that the Board stop

using the STRONG-R as a basis for

denying parole going forward — unless

it provides due process protections,

reasonable assurance of the results'

accuracy, and methods to challenge bad

data;

Reasonable attorney's fees; and

vi)

Any other reasonable relief as the Court

may find appropriate, such as the

taxation of costs to the Defendants.

Respectfully submitted,

/s/ Drew Justice

Drew Justice #29247

Attorney for the Plaintiffs

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

Certificate of Service

The undersigned lawyer certifies that this

January 23, 2024, he has delivered this complaint via

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the E-Filing system to Assistant Attorney General

Adam Tune, P.O. Box 20207, Nashville, TN 37207

<adam.tune@ag.tn.gov>.

/s/ Drew Justice

Drew Justice #29247

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.