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Upshur v. Fowler

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

September 24, 2019

NATHANIEL UPSHUR, Plaintiff,
v.
NORTH CAROLINA PAROLE COMMISSION CHAIRMAN WILLIS J. FOWLER, Defendant.[1]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on the parties’ cross motions for summary judgment (DE 33, 35, 42) pursuant to Federal Rule of Civil Procedure 56. The motions were fully briefed and the issues raised are ripe for decision. For the reasons that follow, the court grants defendant’s motion for summary judgment, and denies plaintiff’s motions.

         STATEMENT OF THE CASE

         Plaintiff, a state inmate proceeding pro se, commenced this action by filing correspondence addressed to the court on June 26, 2017. Plaintiff filed the operative complaint on July 13, 2017, asserting claims for violations of his civil rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant, the chairman of the North Carolina Parole Commission, violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by failing to provide him with a meaningful opportunity to obtain release on parole. As relief, plaintiff seeks a court order either granting him parole or directing defendant to review him for parole release under the procedures set forth in the remedial plain entered in Hayden v Keller, No. 5:10-CT-3123-BO (E.D. N.C. Nov. 2, 2017) (DE 83, 96).

         On May 24, 2018, the court entered case management order governing discovery and pretrial dispositive motions practice, and also appointed North Carolina Prisoner Legal Services, Inc. (“NCPLS”) to represent plaintiff for the discovery phase of the case. The parties completed discovery on or about October 24, 2018. On October 30, 2018, the court granted NCPLS’s motion to withdraw from representing plaintiff.

         On November 15, 2018, plaintiff filed motion to appoint counsel. Plaintiff’s motion also raised concerns about the sufficiency of defendant’s discovery responses. On November 20, 2018, the court entered order denying the motion to appoint counsel, but giving plaintiff 14 days to file motion to compel additional discovery responses. Plaintiff filed response to the court’s order on November 26, 2018, stating that he did not intend to seek additional discovery from defendant.

         Also on November 26, 2018, plaintiff filed the instant motion for summary judgment, supported by a memorandum of law and plaintiff’s declaration. On December 17, 2018, defendant filed the instant motion for summary judgment and incorporated opposition to plaintiff’s motion for summary judgment. In support, defendant relies upon a memorandum of law, statement of material facts, and the following: 1) affidavit of Mary Stevens, administrator for the North Carolina Parole Commission; 2) records from plaintiff’s state criminal proceedings; 3) North Carolina Parole Commission records concerning plaintiff; 4) North Carolina Department of Public Safety (“DPS”) proposed remedial plan, Hayden v. Keller, No. 5:10-CT-3123-BO (DE 83); 5) November 2, 2017, order, Hayden v. Keller, No. 5:10-CT-3123-BO (DE 96); and 6) March 19, 2018, order, Hayden v. Keller, No. 5:10-CT-3123-BO (DE 113).

         Plaintiff filed response in opposition to defendant’s motion for summary judgment and his second instant motion for summary judgment on January 18, 2019, supported by a memorandum of law, statement of material facts, and appendix. Plaintiff’s appendix included his parole review records, and excerpts from the North Carolina Parole Commission’s Standard Operations Manual. Defendant filed response in opposition on February 6, 2019, supported by opposition statement of material facts.

         STATEMENT OF THE FACTS

         The undisputed facts and pertinent related litigation background to plaintiff’s claims can be summarized as follows. In February 1988, plaintiff was sentenced to life imprisonment following state convictions for first degree rape, assault with a deadly weapon inflicting serious injury, and first degree murder. (Stevens Aff. (DE 38-1) ¶ 4). Plaintiff became eligible for parole on February 18, 2008. (Id. ¶ 14). Plaintiff received his first parole review in December 2007, and was reviewed again in March 2009, December 2011, December 2013, and December 2016. (Id. ¶¶ 15-16). The North Carolina Parole Commission denied parole release on each occasion. (Id. ¶¶ 15-17). Plaintiff’s is scheduled for another parole review in December 2019. (Id. ¶ 16).

         In July 2010, while plaintiff’s parole reviews were ongoing, a North Carolina inmate instituted Hayden v. Keller, No. 5:10-CT-3123-BO, in this court. The Hayden plaintiff alleged North Carolina’s parole review procedures denied juveniles sentenced as adults to life imprisonment with the possibility of parole a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Hayden v. Keller, 134 F.Supp.3d 1000, 1001 (E.D. N.C. 2015). On September 25, 2015, the Hayden court granted in part the plaintiff’s motion for summary judgment, finding that North Carolina’s parole procedures, as applied to juvenile offenders, violated the Eighth Amendment. Id. at 1011. The Hayden court also ordered the parties to submit a proposed remedial plan that ensures juvenile offenders convicted as adults in North Carolina are provided a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Id.

         The Hayden defendants appealed the September 25, 2015, order, and the court granted the defendants’ motion to stay implementation of the order pending appeal. Hayden v. Keller, No. 5:10-CT-3123-BO (E.D. N.C. Nov. 13, 2015) (DE 65). On August 1, 2016, the United States Court of Appeals for the Fourth Circuit dismissed the appeal for lack of jurisdiction. Hayden v. Butler, 667 Fed.Appx. 416 (4th Cir. 2016). On August 25, 2016, the Hayden court lifted the stay, and directed the parties to file proposed remedial plans within 60 days. Hayden v. Keller, No. 5:10-CT-3123-BO (E.D. N.C. Aug. 25, 2016) (DE 72). On November 2, 2017, the Hayden court granted the plaintiff’s request for injunctive relief, adopted the defendants’ proposed remedial plan, and directed defendants to implement the proposed plan within 90 days. Id. (Nov. 2, 2017) (DE 96). On March 19, 2018, the Hayden court granted the parties’ joint motion for extension of time to implement the remedial plan, and ordered that the plan be implemented by July 28, 2018. Id. (Mar. 19, 2018) (DE 113).

         DISCUSSION

         A. ...


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