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Mosby v. Harper

United States District Court, E.D. North Carolina, Western Division

September 25, 2017

CHRISTOPHER MOSBY, Plaintiff,
v.
JULIE HARPER, GEORGE T. SOLOMON, FRANK L. PERRY, DERRICK E. WADSWORTH, WILLIS J. FOWLER, ANTHONY E. RAND, W. DAVID GUICE, N.C. DEPT. OF PUBLIC SAFETY, and POST RELEASE SUPERVISION AND PAROLE COMMISSION, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants' motion for summary judgment (DE 40), plaintiff's motion for partial summary judgment (DE 50), and plaintiff's “sub judice motion” (DE 57). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants defendants' motion and denies plaintiff's motions.

         STATEMENT OF THE CASE

         On September 4, 2015, plaintiff, a state inmate, filed this civil rights action, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff filed a verified complaint[2] naming the following as defendants: Julie Harper (“Harper”), Aaron Johnson (“Johnson”), George T. Solomon (“Solomon”), Frank L. Perry

         (“Perry”), Derrick E. Wadsworth (“Wadsworth”), Willis J. Fowler (“Fowler”), Anthony E. Rand (“Rand”), Charles Mann (“Mann”), W. David Guice (“Guice”), N.C. Dept. of Public Safety, and Post Release Supervision and Parole Commission (“Commission”). (See Compl. (DE 1) at III). Plaintiff alleges that he was falsely imprisoned by defendants because his parole was improperly revoked. (See id. at 6). Plaintiff further alleges that the revocation of his parole violated his rights to due process under the Fourteenth Amendment. (See id. at 3-6).

         On March 24, 2016, this court conducted a frivolity review pursuant to 28 U.S.C. § 1915. This court found that it did not clearly appear from the face of the complaint that plaintiff was not entitled to relief, and the matter was allowed to proceed.

         On May 20, 2016, defendants filed a notification of the death of defendant Mann. There was no motion for substitution of the proper party filed. On September 9, 2016, defendant Mann was dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1). On November 15, 2106, this court dismissed defendant Johnson pursuant to Federal Rule of Civil Procedure 4(m) for failing to obtain proper service.

         On February 17, 2017, defendants filed the instant motion for summary judgment, including the following in their appendix to the statement of material facts: defendant Harper's affidavit (DE 43-1), a 1994 judgment of conviction of plaintiff (DE 43-2), affidavit by Mary Stevens, the Chief Administrator for the Commission (DE 43-3), a 1994 judgment of conviction of plaintiff (DE 43-4), terms and conditions of parole release of plaintiff (DE 43-5), “OPUS OT 53" screen (DE 43-6), a 2012 arrest warrant (DE 43-7), an October 6, 2012 notice of revocation (DE 43-8), and a 2015 judgment and commitment of plaintiff (DE 43-9).

         On March 13, 2017, plaintiff filed an opposition to defendants' motion for summary judgment and statement of material facts. On March 17, 2017, defendants filed a supplemented affidavit (DE 47), which is accompanied by the precise terms of the agreement reached between plaintiff and the Commission through the Mutual Agreement Parole Program (“MAPP”).

         On April 3, 2017, plaintiff filed a motion for partial summary judgment. In support of plaintiff's motion, he filed a memorandum in support (DE 50-1), an affidavit (DE 51), and a variety of documents (DE 50-2), consisting of an article on parole, plaintiff's parole agreement, and a copy of a statute on parole.

         On April 11, 2017, defendants filed a response in opposition. Plaintiff filed a reply on April 27, 2017. On May 2, 2017, plaintiff filed the instant “motion sub judice.” The motion was not properly signed, and plaintiff was directed to cure the deficiency within 21 days. On May 18, 2017, plaintiff signed the motion and re-filed it with this court.

         STATEMENT OF THE FACTS

         Except as otherwise noted below, the undisputed facts are as follows: on November 17, 1994, plaintiff was convicted of second degree murder, and he was sentenced to life imprisonment. (See Stevens Aff. (DE 43-3) ¶ 3). The Commission began considering plaintiff for parole release on December 3, 2003, and his case was reviewed annually thereafter. (See id. ¶ 4). On September 10, 2008, plaintiff was approved to participate in MAPP. (See id. ¶ 5). The MAPP agreement was intended to provide plaintiff with an opportunity to prepare for eventual release on parole through a work release position. (See id.)

         The MAPP Agreement signed by plaintiff, and the standard form utilized by the Commission to document MAPP agreements for other inmates, does not contain any reference to the length of time the inmate will serve on parole once the MAPP agreement is completed and the inmate is released. (See Stevens Aff. (DE 47) ¶ 4). Similarly, plaintiff's MAPP agreement did not establish the terms of his parole. (See Compl. (DE 1) at 6). Rather, the MAPP agreement was used as a guide to progress plaintiff through the system with participation in community-based programs. (See id.) Even if the MAPP agreement had controlled the terms of ...


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