Burdette v. Mississippi Parole Board

Filing 17

MEMORANDUM OPINION re 16 Final Judgment Dismissing Case. Signed by Magistrate Judge Jane M. Virden on 11/14/2023. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
DERRICK ARTHUR BURDETTE
v.

PLAINTIFF
No. 4:23CV140-JMV

MISSISSIPPI PAROLE BOARD

DEFENDANT

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Derrick Arthur
Burdette, who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes
of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed
this suit. The plaintiff has brought the instant case under 42 U.S.C. § 1983, which provides a federal
cause of action against “[e]very person” who under color of state authority causes the “deprivation of
any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The
plaintiff alleges that the Mississippi Parole Board violated his right to due process by revoking his
parole without first holding revocation hearing. In addition, he alleges that the Parole Board violated
his right to equal protection by releasing others on parole who were serving sentences for more serious
crimes, while refusing to grant his requests for parole.
On October 17, 2023, the court ordered Burdette to show cause why the instant case should
not be dismissed for failure to state a claim upon which relief could be granted. Doc. 11. Burdette
responded to the order on November 6, 2023, and the matter is ripe for resolution. For the reasons set
forth below, the court finds that the plaintiff has not shown cause, and the instant case will be
dismissed with prejudice for failure to state a claim upon which relief could be granted.
The Plaintiff’s Response to the Show Cause Order
The plaintiff’s response to the court’s show cause order centered around his good behavior and
notable accomplishments during his 13-year incarceration within the Mississippi Department of

Corrections. During that time, he completed his GED, graduated from Mississippi Delta Community
College, completed MRT (Moral Reconation Therapy), Long-term Alcohol and Drug Program, Shortterm Alcohol and Drug Program, and took classes in English and U.S. History. In addition, he has
accumulated four years of meritorious earned time. He also restated the reasons the Parole Board
gave for denying parole: the “serious nature of offense[s]” (possession of cocaine and manslaughter);
“further investigation required;” not ready, socially or mentally; lacking educational resources to be
successful on parole. The plaintiff argues that the parole board has not held a hearing and thus could
not accurately determine his emotional or mental state. He also argued and that he had completed his
GED and earned a college degree while in prison – which runs counter to the Parole Board’s
contention that he lacked education. However, as discussed below, decision in his case is driven not
by the seriousness of Burdette’s offense or his behavior during his stay in prison – but on the nature of
parole in Mississippi.
Claims Regarding Actions of the Parole Board
The plaintiff’s § 1983 claims based upon the violation of state law must be dismissed for
failure to state a claim upon which relief could be granted; violation of state law does not, alone, give
rise to a cause of action under § 1983. Williams v. Treen, 671 F.2d 892, 900 (5th Cir. 1982). Next, the
Due Process Clause provides protection only from those state procedures which imperil a protected
liberty or property interest. Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S. Ct. 1741, 1748, 75 L.
Ed. 2d 813 (1983). Thus, unless the Mississippi statutes governing parole afford prisoners a liberty or
property interest, they cannot bring a procedural or substantive due process challenge to the actions of
the parole board. Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). Mississippi parole statutes do not bestow
a liberty or property interest to prisoners; hence, Mississippi prisoners cannot challenge decisions of
the parole board on due process grounds. See Irving v. Thigpen, 732 F.2d 1215, 1218 (5th Cir. 1984).
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As such, the plaintiff’s due process allegations against the Parole Board should be dismissed for
failure to state a claim upon which relief could be granted.
The plaintiff’s other claim, equal protection, likewise fails, as he has not identified “two or
more relevant persons or groups” which the government has classified and treated differently, to his
detriment.1 Thus, this allegation must also be dismissed for failure to state a valid § 1983 claim. Vera
v. Tue, 73 F.3d 604, 609-10 (5th Cir. 1996). In sum, all of the plaintiff’s allegations must be dismissed
for failure to state a claim upon which relief could be granted under 28 U.S.C. § 1915 (e)(2)(B)(ii).
SO ORDERED, this, the 14th day of November, 2023.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

1

The plaintiff merely makes the bare allegation that “other inmates [have] been let out
with [more] severe charges than I ….” Doc. 1 at 3. He makes a similar assertion elsewhere in
his complaint. Doc. 1 at 5.
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