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Leak v. Butler

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

February 5, 2018

Anthony Leak, Plaintiff,
v.
Paul G. Butler, Jr., et al., Defendants.

          ORDER & MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         Order Plaintiff Anthony Leak, a state inmate proceeding pro se, filed this action under 42 U.S.C. § 1983 (D.E. 1). This matter is currently upon the parties' cross-motions for summary judgment (D.E. 35, 48). Also before the court are (1) Leak's motion for extension of time (D.E. 34); (2) Leak's motions for discovery (D.E. 41, 44); and (3) defendants' motion for a protective order (D.E. 45). For the following reasons, the court will grant Leak's motion for an extension of time, deny Leak's discovery motions, and grant defendants' motion for a protective order. And the undersigned recommends that the district court grant defendants' motion for summary judgment, and deny Leak's motion for summary judgment.

         I. Background

         In 1987, Leak was convicted of the following offenses: (1) one count of first-degree rape, for which he received a life sentence; (2) one count of first-degree sexual offense, for which he received a life sentence to run concurrently to the sentence for first-degree rape; (3) one count of first-degree burglary, for which he received a sentence of twenty-five years imprisonment, to be served consecutively to the sentence for first-degree rape; (4) one count of larceny, for which he received a sentence of five years imprisonment, to run consecutively to the sentence for first- degree burglary; and (5) one count of second-degree kidnapping, for which he received a sentence of fifteen years imprisonment, to run consecutively to the sentence for larceny. Stevens Aff. ¶ 3, D.E. 51-1.

         Leak became eligible for parole in March 2016. Id. ¶ 4. On March 7, 2016, the North Carolina Parole Commission (“Commission”) denied parole. Id. ¶ 5. Leak is eligible for another parole review in March 2018. Id. ¶ 6.

         Before an inmate's scheduled parole review, a parole case analyst prepares a case presentation and parole recommendation for the Commission, which includes the “official crime version” of the inmate's criminal offense; the inmate's disciplinary, vocational, and educational history while incarcerated; any psychological assessment conducted by the Commission's staff psychologist; and any risk assessment or other evaluations. Stevens Aff. ¶¶ 9-11. A majority of the commissioners may order a more extensive investigation after reviewing the case analyst's initial report. Id. ¶ 11. The Commission does not conduct personal interviews of inmates prior to deciding whether to grant them parole. Id. ¶ 8. However, before an inmate's parole review, a Commissioner meets with members of the public including victims and the family, friends, advocates, or attorneys for offenders. These meetings are made available on a first-come, first-serve basis and generally occur within close proximity to an offender's upcoming parole review date and permit the attendees to present to the Commissioner any evidence or information in support of or in opposition to an offender's suitability for parole release. Id. ¶ 11.

         The Commission has four members, and they not required to follow the case analyst's recommendation. Id. ¶ 9. The Commission follows a set of statutory criteria in considering a prisoner for parole. Id. ¶ 12. The Commission may refuse to release on parole a prisoner it is considering for parole if it believes:

(1) There is a substantial risk that he will not conform to reasonable conditions of parole; or
(2) His release at that time would unduly depreciate the seriousness of his crime or promote disrespect for law; or
(3) His continued correctional treatment, medical care, or vocational or other training in the institution will substantially enhance his capacity to lead a law-abiding life if he is released at a later date; or
(4) There is a substantial risk that he would engage in further criminal conduct.

N.C. Gen. Stat. § 15A-1371(d).

         Here, the Commission has reviewed Leak's parole only once. After following the procedure described above, the Commission notified Leak that his parole was denied by letter. Id.¶ 13. Specifically, in a letter dated March 8, 2016, the Commission stated:

The [Commission] has reviewed and evaluated all available information surrounding your case and concluded that parole ...

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