Fulton v. Muse
Filing
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MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 08/14/2012. (jlan)
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AUG I 4 2012
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT
ALEXANDRIA, VIRGINIA
Alexandria Division
Joseph M. Fulton,
Plaintiff,
v.
William W. Muse,
Defendant.
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l:llcvl214(JCC/JFA)
MEMORANDUM OPINION
Joseph M. Fulton, a Virginia inmate acting pro se, has filed a civil rights action pursuant
to 42 U.S.C. § 1983, alleging that his right to due process was violated when his request for
geriatric parole release was denied by the Virginia Parole Board ("VPB"). The sole defendant in
the lawsuit is William W. Muse, Chairman of the VPB. The matter is now before the Court on
defendant's Motions for Summary Judgment as to both theinitial and supplemental complaints.
Plaintiff was provided with the notice required by Local Civil Rule 7(K) and Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) as to both motions, and he has filed an objection to
defendant's summary judgment motions and a supporting declaration. After careful
consideration, defendant's Motions for Summary Judgment will be granted, and summary final
judgment will be entered in his favor. Also pending before the Court are plaintiffs Renewed
Motion to Set Aside Court's Order Granting Respondent's Motion for Enlargement of Time and
Motion for Default Judgment, and defendant's Motion for Protective Order, all of which will be
denied, as moot.
I. Background
The following material facts are uncontested. On January 26, 1999, plaintiff Joseph
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Fulton was convictedof aggravated sexual batteryand sodomy in the Hampton Circuit Court.
Plaintiffwas sentenced to serve 76 years in prisonwith 60 years suspended, for a total active
term of 16 years. Compl., Ex. 3, "Overall Facts." On March 23,2011, plaintiff submitted a
petition for geriatric conditional release to the VPB. Compl., Ex. 3. On April 5,2011, the VPB,
through defendant Muse, notifiedplaintiffthat his petitionhad been reviewed, and that "[a]fter a
careful study and evaluation of all available information pertaining to [his] case, the Virginia
Parole Board's decision in April 1,2011 [was] not to grant [him] Conditional Release ...." The
VPB cited as the reason for its decision the serious nature of plaintiffs offense and the risk he
wouldpose to the community. Plaintiffwas informed that he could resubmit his petition
annually. Compl., Ex. 2; Muse Aff., Att. B. Plaintiffappealedthe VPB's decision on April 7,
2011, arguing that his application was not reviewed in accordance Virginia Parole Board
Administrative Procedure § 1.226, because it was summarily denied and was not advanced to the
"AssessmentInterview" level of review. Compl., Ex. 1; Muse Aff., Att. C. On June 10,2011,
plaintiffs request for appeal was denied, on the ground that "[s]erious nature of offense is a valid
reason to deny geriatric consideration based on your crime." Compl., Ex. 1; Muse Aff., Ex. C.
Plaintifffiled the initial complaint in this action on October28,2011,' alleging that the
VPB failed to follow its own writtenprocedures in denying his petition for geriatric release, and
that his right to dueprocess thereby wasviolated. The solenamed defendant was William Muse,
and as relief, plaintiffsought declaratory and injunctive reliefin the form of an order requiring
the VPB "to stop ignoring its own writtenprocedures and ... to conductthe personal interviews
'Apleading submitted byan incarcerated person isdeemed filed when the prisoner delivers
it to prisonofficials for mailing. Lewisv. Citv of Richmond Police Dep't. 947 F.2d 733 (4th Cir.
1991); seealsoHouston v. Lack.487U.S. 266 (1988). Here, Fultonsignedthe initialcomplaint on
October 28,2011, and in the absence of evidence to the contrary it is assumed that he delivered it
to prison authorities for mailing on that same date.
the policy requires." On February 6,2012, defendant filed an Answer and a Motion to Dismiss,
along with a supporting memorandum and exhibits. On February 10,2012, plaintiff filed a
supplemental complaint, in which he refined his formerly general claim into four specific
allegations: (1) defendant failed to follow the mandatory procedures adopted by the VPB
regarding review of petitions for geriatric conditional release; (2) defendant's actions were
arbitrary and capricious; (3) defendant failed to ensure that plaintiff receivea personal
assessment interview; and (4) defendant failed to providea written assessment of plaintiff s
suitability for release on geriatric parole. On February 22,2012, defendant filed a Motion for
Summary Judgment as to the supplemental complaint, with an accompanyingMemorandum of
Law. Plaintiffsubsequently submitted his objection to defendant's summary judgmentrequests
along with a supporting declaration. Accordingly, this matter is now ripe for disposition.
II. Standard of Review
Summaryjudgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). The moving party bears the burden ofproving that judgment on
the pleadings is appropriate. See Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986) (moving
party bears the burden ofpersuasion on all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues ofmaterial fact are present for resolution. Id. at
322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of
law, the burden then shifts to the non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion
for summaryjudgment, a district court should consider the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences from those facts in favor of that
party. UnitedStates v. Diebold. Inc.. 369 U.S. 654, 655 (1962). Those facts which the moving
party bears the burden of proving are facts which are material. " [T]he substantive law will
identify which facts are material. Only disputes over facts which might affect the outcome of the
suit underthe governing law will properlypreclude the entryof summary judgment." Anderson.
477 U.S. at 248. An issue of material fact is genuine when, "the evidence ... create[s] [a] fair
doubt; wholly speculative assertions will not suffice." Rossv. Communications Satellite Corp..
759 F.2d 355,364 (4th Cir. 1985). Thus, summary judgment is appropriate only whereno
material facts are genuinely disputed and the evidence as a whole could not lead a rational fact
finder to rule for the non-moving party. Matsushita. 475 U.S. at 587.
III. Analysis
Defendant Muse is plainly entitled to the summary judgment he seeks. A convicted
person has no constitutional right to be released before the expiration of a valid sentence.
Greenholtz v. NebraskaPenal Inmates. 442 U.S. 1 (1979); Meachum v. Fano. 427 U.S. 215,224
(1976). While a liberty interest can be created by a parole system that mandates an inmate's
release upon the occurrence of certain conditions, Board of Pardons v. Allen. 482 U.S. 369
(1976), Virginiainmates are released on discretionary parole only if and when they are deemed
suitable for release, and under Virginia law the VPB has absolute discretion in such decisions.
Garrett v. Commonwealth. 14Va. App. 154 (1992). Because the decision to grant discretionary
parole thus is dependent upon "subjective evaluations and predictions of future behavior," it does
not create a liberty interest in inmates' parole release. Gaston v. Tavlor. 946 F.2d 340 (4th Cir.
1991) (en banc); Sumner v. Tucker. 9 F. Supp. 2d 641,642 (E.D. Va. 1998).
Moreover, because inmates have no liberty interest in discretionary parole release under
Virginia law, "neithercan they have any libertyinterest in the underlying procedures governing
parole determination, so long as the procedures themselves satisfy due process." Hill v. Jackson.
64 F.3d 163, 171 (4th Cir. 1995). quoting Ewell v. Murray. 11 F.3d 482,488 (4th Cir. 1993),
cert, denied. 511 U.S. 1111 (1994). Due process in this contextrequires that, "at most," parole
authorities must "furnish to the prisonera statement of its reasons for denial of parole." Franklin
v. Shields. 569 F.2d 784, 800 (4th Cir. 1977) (en banc), cert, denied. 435 U.S. 1003 (1978). The
Fourth Circuit recognizes that, "in sum... federal courts must defer to state agencies applying
state law and thus their oversightof state parole proceedings has been extremelylimited." Vann
v. Aneelone. 73 F.3d 519,522 (4th Cir. 1996).
The VPB has established an administrative procedure to assess inmaterequests for
geriatric conditional release. MuseAff. U5, Att. A. Pursuant to that procedure, when plaintiff
submitted his application for release on geriatric parole, the VPB reviewed the petition, denied it
by majority vote, and provided plaintiffwith written notice of that decision. Muse Aff. U6, Att.
B. Plaintiff sought an appeal of that result, his request wasreviewed, and again he was provided
with written notice that the appeal was not granted. Muse Aff. H7, Att. C. Under these
circumstances, the limited amount of processdue to plaintiff was satisfied. Franklin. 569 F.2d at
800.
It is well established that the failure of prison officials to follow their own established
procedures, without more, does not rise to the level of a constitutional violation. See Riccio v.
Countyof Fairfax. 907 F.2d 1459,1469 (4th Cir. 1990). Nonetheless, plaintiffargues in both
the initial and supplemental complaints that he is entitled to relief because the initial review of a
request for geriatric parole is confined to determining whether the threshold criteria of the
applicant's offenses, time served, and age are met, and that if they are, the applicant is
automatically entitled to have his petition proceed to the next level ofreview, which includes a
personal interview. In this, he is simply mistaken. The relevant VPB policy provides that a
petition is to be reviewed, along with the "Virginia Department of Corrections' central file and
any other pertinent information" regarding the inmate. Muse Aff., Att. A. Following the initial
review, "[t]he petition may be denied upon such review by majority vote of the Board." At that
juncture, "if the petition is not denied, it will automatically be advanced to the next level of
review." Id., emphasis added. In plaintiffs case,becausehis application for geriatric parole
was denied upon initial review by a majority vote of the VPB, his alleged entitlement to a
assessment interview did not arise.
Sinceplaintiffhas no constitutional right to conditional release or to the procedure by
which such a decision is made, and since due process was satisfiedwhen plaintiffreceived
writtennoticeof the VPB's decision in his case, defendant is entitled to the summary final
judgment he seeks. Becausedefendanthas established his entitlement to judgment as a matter of
law on plaintiffs claim, it is unnecessary for the Courtto address his arguments on the question
of qualified immunity.
IV. Pending Motions
On January 9,2012, defendant moved for an extension of time to respond to the
complaint, and themotion was granted fora period of twenty (20) days by Order dated January
17,2012. Now pending before the Court are plaintiffs motions to set aside that Order and to
enterdefault judgment against defendant. Because defendant timely filed meritorious responses
to the complaint and supplemental complaint, plaintiffs motions will be denied, as moot. In
addition, defendant's Motion for Protective Order seeking relief from plaintiffs premature
discovery requests also is moot at this juncture, and will be denied on that basis.
V. Conclusion
For the foregoing reasons, defendant's Motions for Summary Judgment will be granted,
and summary judgment will be entered in his favor. Plaintiffs renewed Motion to Set Aside
Court's Order, his Motion for Default Judgment, and defendant's Motion for Protective Order
will be denied, as moot. An appropriate Order shall issue.
Entered this /^-"^day of LM<^ru^
Alexandria, Virginia
2012.
/s/_
Claude M. Hilton
United States District Judge
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