Mendoza v. Donald et al
Filing
14
OPINION AND ORDER approving 4 Final Report and Recommendation, denying as moot 10 Motion to Appoint Counsel & denying as moot 11 Motion for JudicialAction. This action is DISMISSED pursuant to 28 U.S.C. § 1915A. Signed by Judge William S. Duffey, Jr. on 4/28/17. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALFREDO MENDOZA,
Plaintiff,
v.
1:16-cv-1471-WSD
JAMES E. DONALD, Chairman, Ga
State Parole & Pardons, ALBERT R.
MURRAY, Vice Chairman,
L. GALE BUCKNER, Member,
ROBERT E. KELLER, Member,
TERRY E. BERNARD, Member,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge John K. Larkins, III’s
Final Report and Recommendation [4] (“R&R”), recommending that this action be
dismissed. Also before the Court are Plaintiff Alfredo Mendoza’s (“Plaintiff”)
Objections [6], [7] to the R&R, Plaintiff’s Motion to Appoint Counsel [10], and
Plaintiff’s Motion for Judicial Action [11].
I.
BACKGROUND
On February 28, 2011, Plaintiff Alfredo Mendoza (“Plaintiff”) was
convicted of possessing methamphetamine, and sentenced to fifteen years in
prison. ([1] at 10-11). The Georgia Parole Guidelines System (the “Guidelines”)
recommended that Plaintiff be granted parole after serving five years of his
sentence. ([1] at 11). The Georgia Board of Pardons and Paroles (the “Parole
Board”) determined, however, that Plaintiff should not be granted parole until he
serves approximately ten years of his sentence. ([1] at 11). The Parole Board
found that “the circumstances of [Plaintiff’s] crime call[] for more time in prison
than recommended by the guidelines system.” ([1] at 11).
On May 3, 2016, Plaintiff filed his Complaint [1], asserting a Fourteenth
Amendment Due Process claim under 42 U.S.C. § 1983. Plaintiff argues that the
Parole Board’s departure from the Guidelines violated his Fourteenth Amendment
“property interest” in the “meaningful use” of the Guidelines. ([1] at 7). On
May 18, 2016, the Magistrate Judge screened Plaintiff’s Complaint and issued his
R&R, recommending that this action be dismissed because Plaintiff lacks a
constitutionally protected interest in parole under the Guidelines.1 On
June 20, 2016, Plaintiff filed his Objections to the R&R, generally disputing the
Magistrate Judge’s conclusion.
1
A federal court must screen “a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint if it
is “frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(b)(1). A claim is frivolous, and must be dismissed, where it
“lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
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II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam).
A district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). Where no party has objected to the report and
recommendation, the Court conducts only a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). In view
of Plaintiff’s Objections, the Court conducts a de novo review of the record.
B.
Analysis
Georgia law provides that “[t]he guidelines system shall be used in
determining parole actions on all inmates, except those serving life sentences, who
will become statutorily eligible for parole consideration.” O.C.G.A. § 42-9-40(a).
“[W]hile the legislature has required the Board to adopt a guideline system to be
used as a framework for making more consistent parole decisions, it also preserved
the Board’s authority to use its discretion in making final parole decisions.
3
The statute and regulations, therefore, do not mandate that release be granted if the
Guidelines criteria is met.” Sultenfuss v. Snow, 35 F.3d 1494, 1502 (11th Cir.
1994). “Instead, the system contains a statutory presumption against parole and an
explicit reservation of authority to depart from the grid recommendation, negating
any reasonable claim of an entitlement to parole.” Id.2 The Eleventh Circuit has
held that, in light of these features of the Guidelines, “Georgia’s parole system
does not create a liberty interest in parole protected by the Due Process Clause.”
Id. at 1503; see also Huggins v. Isenbarger, 798 F.2d 203, 205 (7th Cir. 1986)
(“[T]he definition of a liberty interest in parole or other early release is the same as
the definition of a property interest.”). In view of this authority, and the reasoning
in it, the Court finds that the Parole Board’s departure from the Guidelines’
recommendation did not violate Plaintiff’s Fourteenth Amendment due process
rights. Plaintiff’s Complaint is required to be dismissed.3
2
The statutory presumption against parole is provided in O.C.G.A.
§ 42-9-42(c): “No inmate shall be placed on parole until and unless the board shall
find that there is reasonable probability that, if he is so released, he will live and
conduct himself as a respectable and law-abiding person and that his release will
be compatible with his own welfare and the welfare of society. Furthermore, no
person shall be released on pardon or placed on parole unless and until the board is
satisfied that he will be suitably employed in self-sustaining employment or that he
will not become a public charge.” O.C.G.A. § 42-9-42(c).
3
Because this action is dismissed, Plaintiff’s Motion to Appoint Counsel and
Motion for Judicial Action are denied as moot.
4
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins, III’s
Final Report and Recommendation [4] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections [6], [7] are
OVERRULED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to
28 U.S.C. § 1915A.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint
Counsel [10] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Judicial
Action [11] is DENIED AS MOOT.
SO ORDERED this 28th day of April, 2017.
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