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Perry v. Perry

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

March 29, 2019

JOSEPH LEE PERRY, Plaintiff,
v.
FRANK L. PERRY, W. DAVID GUICE, GEORGE SOLOMON, KENNETH LASSITER, CARLTON JOYNER, PAUL G. BUTLER, JR., WILLIS J. FOWLER, JAMES L. FORTE, and DANNY G. MOODY, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This 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 are dismissed.

         STATEMENT OF THE CASE

         On 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.

         On 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 order.[1]

         On 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.

         On 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.

         After 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.

         On 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.

         STATEMENT OF FACTS

         The 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.).

         Pursuant 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.”[2] 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).

         A. State v. Bowden

         Plaintiff's 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).[3] 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.

         In 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).[4]

         Following 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. Id.

         The North Carolina Supreme Court issued its decision in Jones on August 27, 2010. 364 N.C. at 249. The plurality opinion[5] 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 imprisonment.” Id.

         As to 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.[6]

         B. Parole Determinations

         Plaintiff 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)[7] 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 demand it.

         Session Law 2008-133, § 1 (amending N.C. Gen. Stat. § 15A-1371(b) (1993)), available at https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2007-2008/SL2008-133.pdf [https://perma.cc/UH2B-FMG8]; (see also Stevens Aff. (DE 58-1) ¶¶ 10, 16). Accordingly, after 2008, plaintiff received parole reviews every three years.

         As a 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).

         In 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.). ...


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