United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on the parties' cross motions
for summary judgment (DE 41, 63), filed pursuant to Federal
Rule of Civil Procedure 56. The motions have been fully
briefed and the issues raised are ripe for ruling. For the
reasons stated below, defendants' motion is granted,
plaintiff's motion is denied, and plaintiff's claims
OF THE CASE
October 28, 2016, plaintiff, a state inmate proceeding pro
se, filed the instant civil rights action pursuant to 42
U.S.C. § 1983, alleging defendants violated his
constitutional rights by changing his parole reviews from
annually to once every three years, and by refusing to award
good-time credits toward his unconditional release date. As
relief, plaintiff seeks compensatory and punitive damages,
injunctive relief, and a declaratory judgment.
November 8, 2016, plaintiff filed motion to amend the
complaint. On February 21, 2017, plaintiff filed motion to
appoint counsel. The court conducted its frivolity review of
the complaint and proposed amendments on May 17, 2017, and
allowed the matter to proceed. The court also granted
plaintiff's motion to amend and denied plaintiff's
motion to appoint counsel in the frivolity
October 27, 2017, the court entered case management order
governing discovery and dispositive motions practice. On
December 6, 2017, plaintiff filed second motion to amend the
complaint, which the court subsequently granted. After
granting several requests for extension of time, the court
set July 3, 2018, deadline for close of discovery, and August
17, 2018, deadline for dispositive motions.
March, 8, 2018, before close of discovery, plaintiff filed
the instant motion for partial summary judgment. Plaintiff
argues the record evidence establishes defendants violated
his constitutional rights by refusing to apply his good-time
credits toward his unconditional release date, and by
increasing the interval between his parole reviews. Plaintiff
relies upon a memorandum of law, statement of material facts,
and appendix comprised of numerous exhibits, including
plaintiff's parole review records, correspondence between
plaintiff and various North Carolina Department of Public
Safety (“DPS”) officials, correspondence between
plaintiff's sentencing judge and the North Carolina
Parole Commissioner, and DPS records calculating
plaintiff's good-time credits.
receiving extension of time, defendants filed response in
opposition to the motion on July 20, 2018, supported by
statement material facts, memorandum of law, and appendix
including affidavit of non-party Mary Stevens and exhibits
attached thereto, DPS's good-time credits policy, Parole
Commission operations manual, March 2, 1993, correspondence
between Charles Cromer and plaintiff's sentencing judge,
and defendant Guice's official job description.
August 17, 2018, defendants filed the instant motion for
summary judgment, arguing the record evidence establishes
defendants did not violate plaintiff's
clearly-established rights. Defendants rely upon a memorandum
of law and statement of material facts, and they incorporate
by reference their appendix filed in response to
plaintiff's motion for summary judgment. Plaintiff filed
response in opposition on October 11, 2018, relying upon a
memorandum of law, statement of material fact, and additional
appendix including various North Carolina General Statutes,
DPS policies concerning good-time credits, plaintiff's
resumes and other internal prison records, plaintiff's
judgment and commitment orders for murder and armed robbery
convictions, plaintiff's parole review records, and
plaintiff's February 5, 2011, grievance.
undisputed facts and pertinent related litigation background
to plaintiff's claims can be summarized as follows.
Between February 1970 and November 1976, plaintiff was
convicted of eight different criminal offenses, which
included two counts of attempted armed robbery, two counts of
armed robbery, one count of assault with a deadly weapon with
intent to kill inflicting serious bodily injury, and one
count of first-degree murder. (Stevens A f f . (D E 5 8 - 1)
¶ 4) . A s r e l e v a n t h e r e, the state court
ordered plaintiff's life sentence for armed robbery to
run consecutive to a previously-imposed 20-year sentence for
assault with a deadly weapon with intent to kill.
(Id.). In a separate case, the state court ordered
plaintiff to serve his life sentence for first-degree murder
concurrently with a previously-imposed 50-year sentence for
attempted armed robbery. (Id.).
to N.C. Gen. Stat. § 14-2 (1974) (since repealed),
plaintiff's life sentences were “considered as a
sentence of imprisonment for a term of 80 years in the
State's prison.” DPS prohibits plaintiff from earning
good-time credits toward his unconditional release date
because DPS interprets plaintiff's sentence as a life
term for purposes of its good-time credit policy regardless
of application of N.C. Gen. Stat. § 14-2 (1974).
(See Stevens Aff. (DE 58-1) ¶ 28).
State v. Bowden
claims in the instant action challenging this DPS policy have
been considered and rejected by the North Carolina Supreme
Court. DPS has always “interpreted a life sentence
imposed under [ N.C. Gen. Stat. § 14-2 (1974)] to be an
indeterminate sentence that would expire only upon an
inmate's death.” Jones v. Keller, 364 N.C.
249, 252 (2010). For inmates sentenced to life terms,
including those sentenced under N.C. Gen. Stat. § 14-2
(1974), DPS therefore applied good-time credits “solely
for the purposes of allowing [the inmate] to move to the
least restrictive custody grade and to calculate [the
inmate's] parole eligibility date, and not for the
purpose of allowing [such inmates] unconditional
release.” Id. at 254.
2005, Bobby Bowden file a state habeas petition challenging
the DPS policy of refusing to award good-time credits toward
unconditional release dates for inmates sentenced to life
terms under N.C. Gen. Stat. § 14-2 (1974). State v.
Bowden, 193 N.C.App. 587, 598 (2008). The North Carolina
Court of Appeals held that a life sentence under N.C. Gen.
Stat. § 14-2 (1974) “is considered as an 80-year
sentence for all purposes” and that DPS therefore must
award good-time credits as if Bowden had received an 80-year
sentence instead of life imprisonment. Id. at 601.
Such ruling had the effect of permitting Bowden and other
inmates sentenced to life terms under N.C. Gen. Stat. §
14-2 (1974) (“Bowden group”), including
plaintiff, to apply earned good-time credits toward their
unconditional release dates. See i d . The North
Carolina Supreme Court initially granted discretionary review
in Bowden, but later determined discretionary review
had been improvidently granted. State v. Bowden, 363
N.C. 621, 621 (2009).
the 2008 Bowden decision, DPS Secretary Alvin Keller
notified the Bowden group inmates that DPS would not apply
good-time credits toward their unconditional release date
(calculated using the 80-year term) pending further
litigation. See Baggett v. Keller, 796 F.Supp.2d
718, 724 (E.D. N.C. 2011). In November 2009, Alford Jones,
another member of the Bowden group, initiated litigation
challenging Secretary Keller's decision. Id.
Relying on the North Carolina Court of Appeals decision in
Bowden, the state trial court granted relief and
ordered Jones's immediate release. Id. The North
Carolina Supreme Court granted DPS's motion for temporary
stay of Jones's release and its petition for certiorari.
North Carolina Supreme Court issued its decision in
Jones on August 27, 2010. 364 N.C. at 249. The
plurality opinion held that DPS acted within its statutory
authority under North Carolina law “to determine the
purposes for which [good-time credits are] awarded.”
Id. at 255-56. With respect to Jones's federal
due process challenge, the plurality found Jones's
“liberty interest, if any, in having [sentence] credits
used for the purpose of calculating his date of unconditional
release is de minimis, particularly when contrasted with the
State's compelling interest in keeping inmates
incarcerated until they can be released with safety to
themselves and to the public.” Id. at 257. The
plurality therefore concluded that Jones “has no
State-created right to have his time credits used to
calculate his eligibility for unconditional release.”
Id. The plurality also emphasized that “[n]o
regulation explicitly provides that credits are to be used to
calculate an unconditional release date, and [DPS] asserts
that it never considered that these regulations applied to
Jones or other inmates similarly situated for purposes of
calculating an unconditional release date.”
Id. at 258. Therefore, “[i]n light of the
compelling State interest in maintaining public safety, . . .
[DPS] regulations do not require that [DPS] apply time
credits for purposes of unconditional release to those who
committed first-degree murder during the 8 April 1974 through
30 June 1978 time frame and were sentenced to life
Jones's ex post facto challenge, the plurality held that
Jones could not establish a violation where “Jones does
not allege that any legislation or regulation has altered the
award of good-time credits [or that DPS] changed its
interpretation of its applicable regulations.”
Id. at 259.
also suggests in his claims a challenge to the North Carolina
General Assembly's decision to increase his parole review
intervals from annually to once every three years. Plaintiff
became parole eligible in January 2002. (Stevens Aff. (DE
58-1) ¶¶ 7-8). At the time of plaintiff's
convictions, N.C. Gen. Stat. § 15A-1371(b)
(repealed) provided that inmates eligible for parole
would receive annual parole reviews. (Id. ¶
10). Between 1999 and 2008, plaintiff received annual parole
reviews. (Id. ¶ 16). In 2008, the North
Carolina General Assembly amended the (repealed) version of
§ 15A-1371(b) applicable to plaintiff as follows:
The Commission shall review cases where the prisoner was
convicted of first or second degree murder, and in its
discretion, give consideration of parole and written notice
of its decision once every third year; except that the
Commission may give more frequent parole consideration if it
finds that exigent circumstances or the interests of justice
Law 2008-133, § 1 (amending N.C. Gen. Stat. §
15A-1371(b) (1993)), available at
[https://perma.cc/UH2B-FMG8]; (see also Stevens Aff.
(DE 58-1) ¶¶ 10, 16). Accordingly, after 2008,
plaintiff received parole reviews every three years.
precursor to parole, North Carolina prisoners are placed on
the Mutual Agreement Parole Program (“MAPP
agreement”). (Stevens Aff. (DE 58-1) ¶ 21). A MAPP
agreement is an agreement between DPS, the Parole Commission,
and the inmate that allows the inmate to progress through
various custody levels and be placed on work release.
(Id. ¶ 19). If the inmate complies with the
MAPP agreement and DPS or the Parole Commission do not vote
to terminate the agreement, the inmate will be placed parole.
(Id. ¶¶ 20, 24). Placement on a MAPP
agreement therefore does not guarantee parole. (See
id. ¶¶ 20, 24).
2008, the Parole Commission referred plaintiff for a MAPP
agreement, and DPS officials approved him for a 24-month
agreement. (Id. ¶ 22). Shortly before
expiration of the 2008 MAPP agreement, DPS officials referred
plaintiff to the Parole Commission for a Commission vote
regarding parole release. (Id. ¶ 24). The
Parole Commission ordered a psychological evaluation before
the final vote. (Id.). The psychologist determined
that plaintiff presented a high risk of re-offense, and there
was a significant probability plaintiff would resort to
criminal activity to secure money. (Id.). ...