United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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 naming the following as defendants: Julie
Harper (“Harper”), Aaron Johnson
(“Johnson”), George T. Solomon
(“Solomon”), Frank L. 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).
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.
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.
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).
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
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.
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
OF THE FACTS
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
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 ...