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Averhart v. Tutsie

decided: April 9, 1980.

RUFUS LEE AVERHART, PLAINTIFF-APPELLANT,
v.
ALBERT TUTSIE, PAROLE BOARD CHAIRMAN, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 78 C 190 -- Allen Sharp, Judge.

Before Sprecher and Wood, Circuit Judges, and Bua, District Judge.*fn*

Author: Sprecher

The primary issues raised in this appeal are (1) whether the Due Process Clause of the Fourteenth Amendment mandates more stringent procedures for parole release determinations than those followed by the Indiana Parole Board, and (2) whether the Indiana Administrative Adjudication Act (A.A.A.), Ind.Code § 4-22-1-1, et seq., applies to Parole Board proceedings. We hold that neither the Due Process Clause nor the Indiana A.A.A. applies to parole release determinations by the Indiana Parole Board.

I

Plaintiff, Rufus Averhart, is presently incarcerated in the Indiana State Prison pursuant to a conviction for involuntary manslaughter. On May 6, 1974, he was sentenced to a term of not less than two nor greater than twenty-one years, with 494 days credit for time spent in jail prior to sentencing. On September 27, 1978, plaintiff filed a pro se suit against the members of the Indiana Parole Board, requesting both injunctive and monetary relief under 42 U.S.C. § 1983.

Before filing suit, plaintiff had been denied parole five times, each time because of the seriousness of his offense with the additional reason on one occasion of unsatisfactory institutional conduct. Other inmates who had been denied parole because of the "seriousness or circumstances of the offense" filed briefs in this court as amici curiae. Plaintiff and amici argue that the procedures and practices of the Indiana Parole Board deprived them of due process of law as well as the rights to which they are entitled under the Indiana Administrative Adjudication Act. The district court found that the Indiana A.A.A. did not apply to Parole Board proceedings. Moreover, it concluded that while due process required certain safeguards in parole release proceedings, the Indiana parole procedure satisfied due process.

II

We will first consider whether the strictures of due process apply to the parole release procedures of the Indiana parole system. It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S. Ct. 2701, 2705-2706, 33 L. Ed. 2d 548 (1972). Just last term, after the decision by the district court in this case, the United States Supreme Court considered whether inmates have a general, constitutionally protected interest in being conditionally released on parole before the expiration of a valid sentence. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Court concluded that an inmate does not have a protectible expectation of parole unless that expectation is created by a state statute. According to the Court, a validly obtained conviction, with all its procedural safeguards, extinguishes a convict's liberty interest in release. A state is under no constitutional obligation to create a parole system, and even when it does, the mere possibility of parole does not a fortiori result in a protectible expectation of release. Rather, the state statute must be phrased in such a way that it creates a real expectation of and not just a unilateral hope for parole. 442 U.S. at 7-8, 11-12, 99 S. Ct. at 2103-2104, 2105-2106.

The Court suggested that a determination by the highest court of a state would be important in ascertaining the scope of any interest a statute was intended to afford state prisoners. Id. at 12, 99 S. Ct. at 2106. Since the state courts of Nebraska had not considered the question, the Court made an independent determination. The Greenholtz Court found that Nebraska's parole statute did create a protectible expectation of parole, but it emphasized that the Nebraska statute had unique structure and language.*fn1 Thus, whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. The Court identified as crucial the language of the statute which mandated that the Nebraska Parole Board shall grant parole to an inmate unless one of four enumerated negative determinations are made.*fn2 Id. at 11-12, 99 S. Ct. at 2105-2106.

Unlike the Supreme Court in Greenholtz, we have the benefit of a decision by the highest court of Indiana interpreting the scope of interest created by the Indiana parole statute. Ind.Code §§ 11-1-1-7 to 11-1-1-14 & 11-1-1-26.*fn3 In Murphy v. Indiana Parole Board, Ind., 272 Ind. 200, 397 N.E.2d 259 (1979), the Indiana Supreme Court distinguished its state statute from the Nebraska statute:

Our parole release statute creates no expectancy of release as envisioned in the Nebraska statutory scheme; rather, our Legislature has invested the Parole Board with almost total discretion in such matters.

397 N.E.2d at 263 (emphasis added).*fn4

Since "the sufficiency of the claim of entitlement must be decided by reference to state law," Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2076, 48 L. Ed. 2d 684 (1976) (footnote omitted), and since we have an authoritative interpretation by the Indiana Supreme Court of the rights created by its state's parole statute, see Bishop, supra, 426 U.S. at 345, 96 S. Ct. at 2077; Greenholtz, supra, 422 U.S. at 12, 99 S. Ct. at 2106, we hold that Indiana state prisoners do not have a protectible interest in being paroled. We do not hear plaintiff to complain that the Parole Board did not comply with the procedures set out in the statute; rather, he argues that the procedures do not comport with ...


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