Jenner v. Nikolas et al
Filing
28
ORDER denying as moot 15 Motion for Preliminary Injunction; granting 19 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 7/29/2015. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEBRA JENNER,
4:14-CV-04147-KES
Plaintiff,
ORDER GRANTING
MOTION TO DISMISS
vs.
KAY NIKOLAS, KEITH BONENBERGER,
DON HOLLOWAY, KEN ALBERS, DAVE
NELSON, MARK SMITH, KEVIN KRULL,
PATRICIA WHITE HORSE-CARDA, and
JAMES SHERIDAN,
Defendants.
Plaintiff, Debra Jenner, filed this lawsuit pursuant to 42 U.S.C. § 1983.
Defendants Kay Nikolas, Keith Bonenberger, Don Holloway, Ken Albers, Dave
Nelson, Mark Smith, Kevin Krull, and Patricia White Horse-Carda are current
members of the South Dakota Board of Pardons and Paroles. Defendant James
Sheridan is a former member of the board. Jenner also moves for a preliminary
injunction directing defendants to develop and implement an effective conflicts
of interest policy. Docket 15. In response, defendants move to dismiss the
action for failure to state a claim. For the following reasons, defendants’ motion
to dismiss is granted.
FACTUAL BACKGROUND
Jenner was convicted of second-degree murder in 1988 for the death of
her three-year-old daughter Abby. Docket 14 at 2. Jenner was initially
sentenced to life in prison without parole. Id. at 3. In 2002, Governor William
Janklow commuted Jenner’s sentence to a term of 100 years in prison, making
Jenner eligible for parole. Id. James Sheridan, then a member of the South
Dakota Board of Pardons and Paroles, recused himself from participating in the
commutation decision because he had taken part in Jenner’s criminal
investigation. Id. Jenner appeared before the full parole board in February
2003 for a parole hearing. Id. at 4. Sheridan again recused himself from
consideration of her case. Id. The board considered Jenner’s file, which
contained approximately 26 photographs of Abby’s body, and voted to deny
parole. Id. at 5. Since then, Jenner has appeared before the board several times
and has been denied parole on each occasion. Jenner has additionally sought
to have the board remove the photographs from her file. Docket 14-1, 14-5, 146, 14-9.
On February 20, 2014, Jenner filed an Application for Ex Parte Writ of
Mandamus with the South Dakota Supreme Court seeking review of the Board
of Pardons and Parole’s decision to deny Jenner’s motion to have the
unauthorized photographs removed from her file. Jenner’s petition was denied
on March 14, 2014.
On March 21, 2014, Ed Ligtenberg, the executive director of the parole
board, executed an affidavit declaring that he removed all photographs received
before January 14, 2014, from Jenner’s file. Docket 14-11. Ligtenberg stated
that he “personally removed all photos from Debra Jenner’s file with the
exception of photos [he] received from the South Dakota Attorney General . . .
pursuant to SDCL 24-15-1 and -2.” Id. at 1. Ligtenberg further stated that “the
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photos contained in Debra Jenner’s file were properly included therein,” that
he “requested that [the Attorney General] provide the Board of Pardons and
Paroles with 6 to 12 photo’s [sic] from the Attorney General’s file to replace the
photos [Ligtenberg] removed to aid the board as contemplated in SDCL 24-137,” and “[t]he photos received from the Attorney General on January 14, 2014
are available to aid Board members who wish to consider the nature and
circumstances of Jenner’s offense in determining to grant or deny parole . . . .”
Id. at 1-2.
On September 26, 2014, Jenner filed a complaint with this court. Jenner
alleges in her amended complaint, submitted on October 23, 2014, that the
photographs of Abby deprived her of her right to have her request for parole
heard by an unbiased and impartial board. Docket 14 at 8. Jenner claims that
Sheridan submitted the photographs in an effort to ensure that Jenner would
not be granted parole, and that Sheridan’s actions demonstrate that the board
does not follow an effective conflicts of interest policy. Id. at 3, 6, 8. She alleges
that Sheridan “has done by indirection that which he could not do directly –
argued against [Jenner’s] release on parole after twice recusing himself from
participating in matters related to [Jenner].” Id. at 6. Defendants move to
dismiss the amended complaint alleging that it fails to state a claim.
LEGAL STANDARD
Rule 12(b)(6) provides for dismissal of a claim if the claimant has failed to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); United
States v. Harvey, No. Civ. 13-4023, 2014 WL 2455533, at *1 (D.S.D. Jun. 2,
3
2014). When reviewing a motion to dismiss under Rule 12(b)(6), the court
accepts as true all factual allegations in the claim and draws all reasonable
inferences in favor of the claimant. See Freitas v. Wells Fargo Home Mortg., Inc.,
703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter v. Advance Auto Parts, Inc.,
686 F.3d 847, 850 (8th Cir. 2012)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, ‘to state a
claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The court determines plausibility by
considering only the materials in the pleadings and exhibits attached to the
complaint, drawing on experience and common sense and viewing plaintiff’s
claim as a whole. Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)
(quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
DISCUSSION
“[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). “[Section] 1983 demands more than a simple claim that the
[defendants] engaged in wrongful conduct and the [plaintiff was] deprived of
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constitutional rights. Indeed, to state a cause of action under § 1983, a plaintiff
must plead facts that would tend to establish that the defendant’s wrongful
conduct caused the constitutional deprivation.” Zutz, 601 F.3d at 851
(emphasis in original).
First, Jenner must show that defendants acted under color of state law.
“The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the
authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)). “Thus, generally, a public
employee acts under color of state law while acting in his official capacity or
while exercising his responsibilities pursuant to state law.” Id. at 50. Here,
defendants engaged in the alleged conduct while acting as members of the
parole board. Jenner specifically claims that Sheridan placed photographs in
her parole file while he was a member of the board, and the board members
reviewed those photographs when deciding to deny parole. Accordingly, Jenner
has sufficiently alleged that defendants acted under color of state law in their
official capacity as members of the parole board when reviewing her file and
choosing to deny parole.
Second, Jenner must establish that she was deprived of a protected
liberty interest in order to prevail on her § 1983 due process claim. Persechini
v. Callaway, 651 F.3d 802, 806 (8th Cir. 2011) (citing Sandin v. Conner, 515
U.S. 472, 487 (1995)). “Protected liberty interests may arise from two
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sources—the Due Process Clause itself and the laws of the States.” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quotation omitted). “There is no
constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence . . . . [T]he conviction, with all
its procedural safeguards, has extinguished that liberty right[.]” Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). The Eighth Circuit
has recognized, however, that “ ‘a state may create such a liberty interest when
its statutes or regulations place substantive limitations on the exercise of
official discretion or are phrased in mandatory terms.’ ” Nolan v. Thompson,
521 F.3d 983, 989 (8th Cir. 2008) (quoting Mahfouz v. Lockhart, 826 F.2d 791,
792 (8th Cir. 1987); see Greenholtz, 442 U.S. at 11 (finding that Nebraska
statute created liberty interest where language mandated that parole board
“shall” release inmate “unless” one of four criteria is met and board believes
release should be deferred) (emphasis added); Dace v. Mickelson, 816 F.2d
1277, 1280 (8th Cir. 1987) (“[F]or a state to create a protectable liberty interest
the statute or regulation must require release upon the satisfaction of the
substantive criteria listed.” (citation omitted) (emphasis in original)).
When a state creates such a liberty interest, “the Due Process clause
requires fair procedures for its vindication – and federal courts will review the
application of those constitutionally required procedures.” Swarthout v. Cooke,
562 U.S. 216, 220 (2011). “In the context of parole, [the Supreme Court] ha[s]
held that the procedures required are minimal.” Id. (holding that plaintiffs were
afforded adequate due process where they were allowed to speak at their parole
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hearings, contest evidence against them, access records in advance, and were
notified of reasons why parole was denied); see Greenholtz, 442 U.S. at 16
(holding that prisoner received adequate process in parole hearing when he was
allowed an opportunity to be heard and was informed of reasons why parole
was denied); Dace, 816 F.2d at 1279 (noting that “minimal due process
standards” apply when a state creates a liberty interest in parole).
Jenner acknowledges that she has no right to parole. Docket 16 at 1.
Because Jenner’s crime was committed before July 1, 1996, she is an “old
system” inmate. “ ‘Old system’ inmates have no right to be paroled.” Castaneira
v. Ligtenberg, No. CIV. 03-4167, 2006 WL 571985, at *3 (D.S.D. Mar. 7, 2006).
Instead, Jenner contends that she is entitled to a parole hearing before an
unbiased and impartial board. Docket 16 at 8. When Jenner became eligible for
parole in 2002, the relevant parole statute provided:
When an inmate becomes eligible for consideration for parole, the
inmate shall be called before the Board of Pardons and Paroles to
personally present the inmate's application for parole. . . . The
board may issue an order to the Department of Corrections that
the inmate shall be paroled if it is satisfied that:
(1) The inmate has been confined in the penitentiary for a sufficient
length of time to accomplish the inmate's rehabilitation;
(2) The inmate will be paroled under the supervision and
restrictions provided by law for parolees, without danger to society;
and
(3) The inmate has secured suitable employment or beneficial
occupation of the inmate's time likely to continue until the end of
the period of the inmate’s parole in some suitable place within or
without the state where the inmate will be free from criminal
influences.
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SDCL 24-15-8 (2002). “It should be clear that [SDCL 24-15-8] does not create a
protected liberty interest in parole. By establishing that the board ‘may’ issue
an order to the [Department of Corrections] that the inmate is to be paroled,
the statute makes the release of the inmate purely discretionary. Thus, the
statute fails to meet the essential mandatory language element of Greenholtz
and Parker.” Dace, 816 F.2d at 1281. While mandatory portions of the South
Dakota parole regulations provide for a hearing, consideration of the inmate’s
history, and consideration of treatment possibilities and plans for the inmate,
“these mandates are directed toward the factors the board must take into
consideration, and do not mandate the inmate’s ultimate release.” Id. at 1282.
“Even if the mandatory criteria are satisfied, the parole board maintains the
ultimate discretionary authority to grant or deny the parole release.” Id. Thus,
South Dakota’s regulations create no protectable liberty interest in parole. Id.
The Eighth Circuit Court of Appeals has established that inmates cannot
bring due process claims if there is no protected liberty interest in being
granted parole. See, e.g., McCall v. Delo, 41 F.3d 1219, 1221 (8th Cir. 1994)
(holding that parole board’s revocation of inmate’s presumptive parole date
without notice or hearing did not violate Due Process Clause because Missouri
statute created no protected liberty interest in parole); Patten v. N.D. Parole Bd.,
783 F.2d 140, 143 (8th Cir. 1986) (holding that North Dakota parole scheme
created no liberty interest, and therefore prisoner had no right to due process
where prison officials denied parole based on erroneous information). The
Eighth Circuit, however, has not resolved the specific issue presented in this
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case: Jenner acknowledges that she has no right to parole, but instead
contends that she has a protected right to a fair parole hearing. Docket 16 at 8.
The Court of Appeals for the District of Columbia addressed a claim
similar to Jenner’s in Brandon v. District of Columbia Board of Parole, 823 F.2d
644 (D.C. Cir. 1987). There, the inmate acknowledged that he had no protected
liberty interest in parole, but maintained instead that he had a constitutionally
protected interest in having the board adhere to its own procedures for parole
consideration. Id. at 647. The inmate argued “[f]or a hearing to be meaningful
. . . there must exist the possibility that []parole can be granted.” Id. Quoting
the Supreme Court’s decision in Olim v. Wakinekona, 461 U.S. 238, 250 n.12
(1983), the Brandon court stated “an expectation of receiving process is not,
without more, a liberty interest protected by the Due Process Clause.” Brandon,
823 F.2d at 648. “[T]he mere fact that the government has established certain
procedures does not mean that the procedures thereby become substantive
liberty interests entitled to federal constitutional protection under the Due
Process Clause.” Id. (citing Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d
Cir. 1985); Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir. 1984);
Harris v. McDonald, 737 F.2d 662, 665 (7th Cir. 1984)). The Brandon court
concluded that “even if the Board failed to comply with its regulations with
regard to the conduct of [the inmate’s] reparole hearings . . . that failure did not
violate [the inmate’s] federal constitutional right to due process of law.”
Brandon, 823 F.2d at 649.
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Other circuits have likewise held that the procedures adopted by a state
to guide parole release determinations are not themselves liberty interests
entitled to due process protection. The Seventh Circuit noted that to suggest
otherwise ignores a “fundamental logical flaw”:
If a right to a hearing is a liberty interest, and if due process
accords the right to a hearing, then one has interpreted the
Fourteenth Amendment to mean that the state may not deprive a
person of a hearing without providing him with a hearing. Reductio
ad absurdum.
Procopio v. Johnson, 994 F.2d 325, 332 (7th Cir. 1993) (quoting Shango v.
Jurich, 681 F.2d 1091, 1101 (7th Cir. 1982)); see, e.g., Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997) (“It is . . . axiomatic that because Texas
prisoners have no protected liberty interest in parole they cannot mount a
challenge against any state parole review procedure on procedural (or
substantive) Due Process grounds.”); Hill v. Jackson, 64 F.3d 163, 171 (4th Cir.
1995) (citing Brandon and holding “[b]ecause the inmates’ ‘right’ to annual
parole review here is a procedural function of Virginia’s parole scheme rather
than a substantive right unto itself, the Constitution does not afford that ‘right’
any protection under the Due Process Clause.”); O’Kelley v. Snow, 53 F.3d 319,
321 (11th Cir. 1995) (holding that the procedures that a state parole board
employ to make parole decisions are generally not required to comport with
constitutional standards of fundamental fairness, “[u]nless there is a liberty
interest in parole . . .”).
Jenner relies on Morrissey v. Brewer, 408 U.S. 471 (1972), where the
Supreme Court held that a “neutral and detached hearing body such as a
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traditional parole board” is among the “minimum requirements of due process”
for parole revocation hearings. Id. at 488-89 (quotations omitted); Docket 23 at
4.1 In Morrissey, the Supreme Court specified that “the liberty of a parolee,
although indeterminate, includes many of the core values of unqualified liberty
and its termination . . . calls for some orderly process, however informal.” Id. at
482 (emphasis added); see United States v. Redd, 318 F.3d 778, 783 (8th Cir.
2003) (holding that, unlike inmates in parole hearings, “parolees enjoy due
process and statutory protections in the context of their revocation hearings.”
(emphasis added)). Unlike the parolees in Morrissey, however, Jenner has not
been released on parole and has no comparable liberty interest. “There is a
crucial distinction between being deprived of a liberty one has, as in parole,
and being denied a conditional liberty that one desires.” Greenholtz, 442 U.S. at
9. “The parole-release decision . . . is more subtle and depends upon an
amalgam of elements . . . many of which are purely subjective appraisals by the
Jenner additionally cites a pre-Greenholtz case from Rhode Island, State
v. Ouimette, 117 R.I. 361 (R.I. 1976), in support of her position. Docket 16 at 8.
“To the extent that Ouimette relies on a liberty interest in parole release under
the federal Constitution, that argument has been foreclosed by the Supreme
Court’s decision in Greenholtz.” Nolan, 521 F.3d at 989. Thus, even if Ouimette
was binding precedent on this court, its analysis would not apply.
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Jenner also references Daily v. City of Sioux Falls, 802 N.W.2d 905 (S.D.
2011). The Daily court held that “[t]o establish a procedural due process
violation, an individual must demonstrate that he has a protected property or
liberty interest at stake and that he was deprived of that interest without due
process of law.” Id. at 911 (finding that City’s administrative appeals process
deprived plaintiff of protected property interest without due process because
City was not held to its burden of proof in issuing zoning citations). Therefore,
the Daily analysis does not apply because Jenner has no protected liberty
interest at stake.
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Board members based upon their experience with the difficult and sensitive
task of evaluating the advisability of parole release.” Id. at 9-10. “That the state
holds out the possibility of parole provides no more than a mere hope that the
benefit will be obtained. To that extent the general interest asserted here is no
more substantial than the inmate’s hope that he will not be transferred to
another prison, a hope which is not protected by due process.” Id. at 11
(citations omitted) (emphasis in original). Thus, Morrissey does not mandate
any minimum requirements of due process for Jenner’s hearing. Without
alleging the violation of a protected liberty interest, Jenner has failed to state a
claim for relief.
CONCLUSION
The procedures adopted by South Dakota to guide parole release
determinations are not themselves liberty interests entitled to due process
protection. Because Jenner has no constitutionally protected liberty interest in
parole, defendants’ conduct has not deprived her of any due process right.
Therefore, Jenner fails to state a claim under 42 U.S.C. § 1983. Accordingly, it
is
ORDERED that defendants’ motion to dismiss (Docket 19) pursuant to
Fed. R. Civ. P. 12(b)(6) is granted.
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IT IS FURTHER ORDERED that plaintiff’s motion for preliminary
injunctive relief (Docket 15) is denied as moot.
Dated July 29, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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