Opinion
Civil Action No. 00-2203 (JBS).
June 15, 2001
MR. RICHARD E. COLLINS, Camden, New Jersey, Plaintiff, pro se.
JOHN J. FARMER, JR., Attorney General of New Jersey, By: Gregory A. Spellmeyer, Deputy Attorney General, Trenton, New Jersey, Counsel for Defendant.
OPINION
Plaintiff, Richard E. Collins ("Collins"), formerly a state prisoner at the Riverfront State Prison in Camden, had his complaint filed in forma pauperis on August 15, 2000, alleging that defendants Christine Todd Whitman, Jack Terhune, and Andrew B. Consovoy, under color of state law, violated his constitutional right to equal protection by allegedly improperly denying him parole based on his status as an African-American, and that defendants also violated his due process rights by allegedly delaying his initial parole hearing and failing to provide written notice of the decision to deny plaintiff parole. This Court dismissed plaintiff's equal protection claim for improper denial of parole without prejudice for failure to state a claim. (See Collins v. John Doe #1, No. 00-2203, slip op. at 11-12 (D.N.J. Aug. 15, 2000) (JBS)). On October 3, 2000, defendants Consovoy and Terhune moved for summary judgment on plaintiff's due process claims pursuant to Rule 56, Fed.R.Civ.P. On October 6, 2000, plaintiff filed an amended complaint, again alleging that defendants improperly denied him parole based on his race, but providing no additional support for the claim . On October 26, 2000, defendant Christine Todd Whitman joined defendants' motion for summary judgment. On December 29, 2000, plaintiff was paroled and released from Riverfront State Prison. For the reasons stated herein, defendants' motion will be granted and plaintiff's amended complaint will be dismissed.
I. BACKGROUND
On May 10, 1996, plaintiff Richard E. Collins ("Collins") was sentenced to a term of nine years (Popovich Aff., Ex. A) for robbery, with concurrent terms of four years for burglary and bail jumping, eighteen months for aggravated assault, and six months for a disorderly persons offense. (Popovich Aff., Ex. B). A parole eligibility calculation dated August 26, 1997 indicated that as of August 1, 1997, plaintiff was eligible for parole consideration on March 14, 1998. (Defs.' Statement of Material Facts, ¶ 1; Popovich Aff., Ex. A.) On March 12, 1998, the Parole Board relisted plaintiff for parole consideration so that the circumstances of his indictment could be reviewed. (Defs.' Statement of Material Facts, ¶ 2.) On July 9, 1998, an initial case assessment was prepared for Collins, which noted that plaintiff had a repetitive history of criminal violations and parole violations, and recommended review by the parole board. (Defs.' Statement of Material Facts, ¶ 3; Popovich Aff., Ex. B.) The case assessment indicated that as of July, 1998, plaintiff's maximum confinement date was July 15, 2002. (Id.) Also on July 9, 1998, written notice of the initial hearing and case review was sent to Collins. (Defs.' Statement of Material Facts, ¶ 4; Popovich Aff., Ex. C.)
Specifically, the assessment indicated that plaintiff's present offenses included robbery, burglary, aggravated assault, a CDS offense, and bail jumping. ( See Popovich Aff., Ex. B.) The review also noted five prior convictions as an adult, including three bank robberies, one disorderly person offence, and one robbery. ( Id . )
Although there is a space in the memorandum for the scheduling of the initial hearing after the Hearing Officer's initial review, no date is indicated in Ex. C of the Popovich Aff. Presumably, the February 16, 1999 date should have been entered there. Although plaintiff alleges that he did not receive a pre-parole report, he does not allege that he was unaware of the February 16, 1999 panel hearing.
On February 16, 1999, a parole board panel denied Collins parole in writing and established a twenty-three month future eligibility term, citing his repetitive criminal behavior, serious nature of his crime, and prior parole violations, among other things, as reasons for such denial. (Defs.' Statement of Material Facts, ¶ 5; Popovich Aff., Ex. D.) Also on February 16, 1999, a parole eligibility calculation was prepared, indicating that as of April 1, 1999, plaintiff Collins would be again eligible for parole on October 22, 1999. (Defs.' Statement of Material Facts, ¶ 6; Popovich Aff., Ex. E.) On March 8, 1999, Collins appealed the decision to deny his request for parole. (Defs.' Statement of Material Facts, ¶ 7; Popovich Aff., Ex. F.) Collins argued that the panel failed to consider the inmate programs he completed while in jail, his family obligations, and his age. (Id.) On April 21, 1999, Collins was advised by letter that the parole board had fully considered his appeal and had affirmed the decision of the panel. (Defs.' Statement of Material Facts, ¶ 7; Popovich Aff., Ex. G.)
On May 18, 1999, the New Jersey State Parole Board prepared another case assessment for Collins, which reflected the same prior criminal history as the July, 1998 assessment, and noted that Collins had participated in Alcoholics Anonymous and anger management classes since his last hearing. (See Pl.'s Opp., Ex. E-1; Popovich Aff., Ex. B.) The assessment indicated that as of May, 1999, plaintiff's maximum confinement date was August 4, 2002. (See Pl.'s Opp., Ex. E-1). Plaintiff's case was again referred to the parole panel for review due to plaintiff's repetitive criminal history. (Id.) On October 11, 1999, Collins wrote to Loretta O'Sullivan at the New Jersey Department of Corrections (not a defendant) detailing the credits he had earned, expressing concern that parole hearings were "backed up" and indicating that he felt he was due to have a parole hearing in August, 1999. (Pl.'s Opp., Letter from Collins to O'Sullivan.) On October 29, 1999, O'Sullivan responded to Collins and advised that as of September 1, 1999, his parole eligibility date was September 20, 1999, and also informed him that the board was currently handling cases with April and May eligibility dates. (Pl.'s Opp., Memo from O'Sullivan to Collins.) O'Sullivan recommended that Collins continue to work and earn credits while awaiting his parole hearing.
On December 9, 1999 plaintiff had his second hearing via a video conference with the parole board. After that hearing, the parole board again denied Collins parole, citing his likelihood to reoffend, insufficient program participation, and a poor risk assessment evaluation, and established an eighteen month future eligibility term. (Defs.' Statement of Material Facts, ¶ 9; Popovich Aff., Ex. H.) On December 10, 1999, a parole eligibility calculation was prepared, indicating that plaintiff would again be eligible for parole consideration on December 28, 2000. (Defs.' Statement of Material Facts, ¶ 10; Popovich Aff., Ex. I.) Plaintiff alleges that he did not receive written notice of this denial, although Collins appealed the December, 1999 denial on January 28, 2000 (see Am. Compl. at 13, ¶ f), claiming that the board failed to consider his family support, that the board was contractually obligated to release him, that the hearing was untimely, that he was discriminated against as an African-American, and that he was denied access to the information considered by the board. (Popovich Aff., Ex. J at 1-2). On April 6, 2000, Collins advised defendant Terhune in writing that he felt African-Americans were more frequently denied due process in consideration for parole. (Pl.'s Opp., Ex. A-4.) On April 26, 2000, the parole board advised Collins in a lengthy letter that the parole board had considered his appeal of the December 9, 1999 decision and had affirmed that decision. (Defs.' Statement of Material Facts, ¶ 11; Popovich Aff., Ex. J.) The Board noted that it had considered each of his allegations, and found each to be without merit. (Popovich Aff., Ex. J at 2- 3.)
Defendants concede that this hearing was not conducted thirty days prior to Collins's eligibility date (October 22, 1999), but asserts that he was given credit for the delay towards his next future eligibility term. ( See Popovich Aff. Ex. J at 3.) Also, the Court notes that plaintiff was granted parole and released on December 29, 2000, after his third parole hearing.
Plaintiff Collins again acknowledged receipt of the December 9, 1999 decision on March 25, 2000, when he submitted an inmate request to the NJDOC. The information he requested and allegedly did not receive was a professional report.
On June 21, 2000, the parole board completed a parole eligibility calculation which listed plaintiff to be eligible for parole as of June 12, 2000. On July 31, 2000, Collins wrote to Donald Lewis, Superintendent of Riverfront State Prison (not a defendant in this action), and advised that he had received one initial parole hearing and two parole panel hearings since the commencement of his incarceration. (See Pl.'s Opp., Ex. A-3.) Plaintiff asked Lewis what he could do to assist in the preparation of his "pre-parole package," so that his next hearing or review would be timely. (Id.)
On August 15, 2000, plaintiff's complaint was filed in forma pauperis with the Clerk of this Court, alleging an equal protection violation arising from the denial of his initial applications for parole and due process violations arising from the untimeliness of his parole hearings. Also on August 15, 2000, this Court dismissed plaintiff's equal protection claims for failure to state a claim upon which relief can be granted. See Collins v. John Doe #1, No. 00-2203, slip op. at 11-12 (D.N.J. Aug. 15, 2000) (JBS). On October 3, 2000, defendants moved for summary judgment on plaintiff's claims pursuant to Rule 56, Fed.R.Civ.P. On October 6, 2000, plaintiff filed an amended complaint. On October 30, 2000 plaintiff submitted his opposition to defendants' summary judgment motion. On December 29, 2000 plaintiff was paroled and released from Riverfront State Prison. For the reasons stated below, defendant's motion will be granted and plaintiff's amended complaint will be dismissed with prejudice.
II. DISCUSSION
Plaintiff's amended complaint alleges that defendants violated his due process and equal protection rights under 42 U.S.C. § 1983 by failing to provide a timely parole hearing and by denying his parole, allegedly because he was an African- American. Plaintiff seeks damages for psychological trauma, stress, and emotional hardships, as well as his gout, which he claims was caused by stress. Plaintiff also seeks a preliminary injunction stopping all New Jersey State Parole Board and New Jersey Department of Corrections administrative activities, and enjoining all federal funding to such agencies.
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Anderson, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, a "motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, and citingCelotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
B. Section 1983 Standard For Due Process Claims
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that defendants deprived him of a federal right while acting under color of state law. See 42 U.S.C. § 1983; Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). "Section 1983 focuses on misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Davidson v. O'Lone, 752 F.2d 817, 826 (3d Cir. 1984), aff'd, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
42 U.S.C. § 1983 provides:
Every person who, under color of any state statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depravation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress . . . .
In this case, it is not disputed that the defendants derive their authority from state law and are therefore state actors. Collins alleges that defendants, acting under color of state law, intentionally delayed his case reviews and parole hearings and therefore violated his rights under the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment Due Process Clause provides that no State shall "deprive any person of life, liberty, or property, without due process of law." In a procedural due process claim, such as the one asserted by plaintiff Collins, the challenged deprivation is not itself unconstitutional, but instead it is the "deprivation of such an interest without due process of law" that is unconstitutional. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citations omitted).
In order to determine whether the process afforded to Collins by defendants in this case was due, the Court must first consider whether and to what extent plaintiff has a liberty interest in receiving a parole hearing at the earliest date required prior to his calculated eligibility date. For an action to be a constitutional violation of a liberty interest, a state official must deprive an individual of an interest to which he is entitled. See Seymour/Jones v. D. Stachelek, 1994 WL 6032, *3 (E.D.Pa. Jan. 6, 1994). Specifically, the United States Supreme Court has instructed that "`a person must have more than an abstract need or desire for [parole eligibility]. He must have more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it.'"Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 22 L.Ed.2d 548 (1972)).
Courts in New Jersey have held that the New Jersey Parole Act of 1979,N.J.S.A. §§ 30:4-123.45 to .69 (the "Act") creates "`a sufficient expectation of parole eligibility to entitle prisoners to some measure of constitutional protection with respect to parole eligibility decisions.'"Watson v. DiSabato, 933 F. Supp. 390, 392 (D.N.J. 1996) (quoting Williams v. New Jersey State Parole Board, 1992 WL 32329, *2 (D.N.J. Feb. 4, 1992) (quoting New Jersey State Parole v. Byrne, 93 N.J. 192, 203, 460 A.2d 103 (1983), aff'd, 975 F.2d 1553 (3d Cir. 1992))). The New Jersey Supreme Court, finding that the New Jersey Parole Act creates a legitimate expectation of parole eligibility for which due process must be given, observed that the statute shifts the burden to the state to show parole is not warranted, providing that a prisoner "shall be released on parole at the time of parole eligibility, unless . . . there is a substantial likelihood that the inmate will commit a crime under the laws of th[e] state if released on parole at such time." Byrne, 93 N.J. at 205, 460 A.2d at 110 (quoting N.J.S.A. 30:4-123.53(a)). Although the Court affirmed the principle that there is no constitutional right to parole, they held that a prisoner's liberty interest in freedom at the end of the parole process, implicated by the advanced eligibility date created byN.J.S.A. 30:4-123.51, is sufficient to invoke procedural due process protections.
C. Due Process
Concluding that Collins had a liberty interest in being paroled upon his parole eligibility dates, the Court must now consider what process he was due and whether such process was given to him by defendants in this case. Due Process has been described by the United States Supreme Court as an "elusive concept . . . [whose] exact boundaries are undefinable."Byrne, 93 N.J. at 208-9, 460 A.2d at 112 (quoting Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960)). Due process is a flexible concept and, as such, requires consideration of what procedural protections are demanded by particular situations. See Byrne, 93 N.J. at 209, 460 A.2d at 112. When considering parole decisions, the interest of the incarcerated prisoner's liberty interest must be weighed against the interests of the state and the objectives of the criminal justice system. This is a fact sensitive inquiry, as "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by the government action." Byrne, 93 N.J. at 209, 460 A.2d at 112 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 2 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). The primary purpose of due process is to minimize the risk of erroneous or arbitrary decisions. See Greenholtz, 442 U.S. at 13.
In the context of parole hearings, it has been held that inmates are entitled to notice, an opportunity to be heard, and a statement of reasons for the denial of parole. Greenholtz, 442 U.S. at 13; Byrne, 93 N.J. at 211, 460 A.2d at 113; Watson, 933 F. Supp. at 393 (holding that "the process required is notice of the pendency of the parole determination, a statement by the government showing that the prisoner is substantially likely to recidivate, and an opportunity for the prisoner to submit a written response to the state's reasons.")
1. Requirements of the New Jersey Parole Act
The Act establishes a comprehensive scheme for conducting the parole hearings for eligible inmates. See Hawker v. Consovoy, 198 F.R.D. 619, 622 (D.N.J. 2001) (JAP). The deadlines established in the Act "may be waived by the appropriate board panel for good cause" if so requested by the hearing officer or the prisoner. Id. at 622, n. 6 (citing N.J.S.A. 30:4-123.55(e)). As discussed above, however, the Act creates a presumption in favor of granting parole on the date of eligibility unless the Parole Board can prove that the inmate should not be released.Byrne, 93 N.J. at 206, 460 A.2d 103.
First, a pre-parole report must be prepared for the eligible inmate and must be filed with the parole board panel "[a]t least 120 days but not more than 180 days prior to the parole eligibility date." Hawker, 198 F.R.D. at 622 (citing N.J.S.A. 30:4-123.54(a)). The report details the inmate's record of incarceration and determines whether plaintiff will likely reoffend. Id. at 622. Once a copy of the pre-parole report is sent to the prisoner, he may submit a written statement in response to the report.
Second, a hearing officer must review the pre-parole report and any response thereto and determine whether there is a basis for the denial of parole. Hawker, 198 F.R.D. at 622 (citing N.J.S.A. 30:4-123.55(a)). If the officer finds no basis for the denial of parole, then a written recommendation to grant parole must be entered, and the prisoner should be released as soon as practicable. If, however, the hearing officer determines that parole should be denied, or that a full parole hearing is necessary, then a hearing should be scheduled and the prisoner should be notified. See Hawker, 198 F.R.D. at 622. At the hearing, which is informal, the board shall receive evidence and testimony and determine whether parole should be granted or denied. See Hawker, 198 F.R.D. at 622 (citing N.J.S.A. 30:4- 123.55(d)). If after reviewing the record and evidence the panel determines that parole should be denied, then the panel must file with the parole board "within 30 days of the hearing a statement setting forth the decision." Hawker, 198 F.R.D. at 622 (citing N.J.S.A. 30:4-123.55(d)). An inmate who is denied parole must also be given a future parole eligibility date, which is calculated based on the severity of the inmate's present crimes and the inmate's previous criminal record. See Hawker, 198 F.R.D. at 622 (citing N.J.S.A. 30:4-123.56(a)). When the prisoner nears that future parole eligibility date, the process outlined in the Act is repeated until parole is granted.
2. Notice of December, 1999 Decision
The Court will first address plaintiff's assertion that defendants violated his due process rights by failing to provide him with a copy of the December 9, 1999 decision denying him parole and the related future eligibility calculation. (Am. Compl. at 13, ¶ f.) Defendants aver that such documents were prepared on December 9, 1999 and December 10, 1999, respectively, and, in the usual course of business, mailed to Collins. (See Defs.' Br. at 16-17.) Defendants cite Collins's January 28, 2000 appeal of the December 9, 1999 decision, which appeal referenced the parole board's denial notice (see Pl.'s Opp. Br. at 13, ¶ g), as further evidence that plaintiff received the decision in January, 2000. Collins himself acknowledged receipt of such documents on March 25, 2000. (See Pl.'s Opp. at 9; Pl.'s Opp., Ex., Inmate Request Form, Mar. 26, 2000.) Collins's January, 2000 appeal was considered by the parole board and denied on April 26, 2000. (Defs.' Br. at 16-17.)
Even viewing the facts in a light most favorable to the non- moving plaintiff, as this Court must on summary judgment, there is no genuine issue of material fact remaining on this issue to be determined by a jury. Plaintiff likely received a copy of the December, 1999 decision in January, 2000, as is evidenced by his appeal of that decision on January 28, 2000. Even if plaintiff did not receive written notice of the decision and the related parole eligibility calculation until March 25, 2000, this Court finds that no due process violation occurred because plaintiff did ultimately receive written notice of the denial and because plaintiff submitted a timely appeal to the decision in January, 2000, which was denied on the merits, and therefore not prejudiced by the alleged delay.
2. Delayed Parole Hearings
Plaintiff next asserts that his due process rights were violated when defendants conducted parole hearings after his parole eligibility calculation dates. Plaintiff admits that he had an initial parole hearing and two panel hearings. (Pl.'s Opp., Ex. A-3, Letter from Collins to Donald Lewis of Jul. 31, 2000.) Defendants argue that any delay in plaintiff's parole hearing did not rise to the level of a due process violation and cite previous decisions in this district which support that position.
Plaintiff first became eligible for parole consideration on March 14, 1998. (Popovich Aff., Ex. A.) Rather than conducting a parole hearing or case review prior to this eligibility date, on March 12, 1998, the parole board decided to relist plaintiff for parole consideration in July, 1998, so that the circumstances of his indictment could be reviewed and the possibility of plaintiff's placement at a halfway house could be considered. (Id., Ex. B.) As the facts reveal, plaintiff's case was administratively reviewed in July, 1998, just four months late and was referred to the Parole Board for a final decision. (Id., Ex. C, Memo advising plaintiff to bring any program certifications to the panel hearing.) On February 16, 1999, the Panel considered plaintiff's case and denied him parole. (Id.) Written notification of the denial was prepared and mailed to plaintiff on February 16, 1999, and, as required by the Act, the notice outlined the reasons for the denial, namely the likelihood of the commission of a new crime if released, plaintiff's prior repetitive criminal record, his present incarceration for a multi-crime conviction, and prior parole violations. (Popovich Aff., Ex. D.) The notice set a twenty-three month future eligibility term, retroactively applying the established term to Collins's original May, 1998 eligibility date (Defs.' Br. at 14) and recommended that plaintiff refrain from future institutional infractions, participate in substance abuse counseling, and participate in institutional programs to prevent criminal behavior. (Popovich Aff., Ed. D).
Each of these factors are proper for the Parole Board to consider when making a parole decision. N.J.S.A. 10A:71-3.11(b) provides that the Board may consider the nature and pattern of previous convictions, adjustments to previous probation, parole and incarceration, any pattern of disciplinary infractions, and the inmate's participation in institutional programs.
In his March 8, 1999 appeal to the February, 1999 decision, plaintiff claimed that the panel did not consider his completion of the "No Return" and "Vince's Place" treatment programs, his family support, and his community involvement at the half-way house. (Popovich Aff., Ex. F.) The July 9, 1998 administrative case assessment form indicates that such programs were considered. (Id., Ex. B.) Additionally, although the Parole board recognized that the programs were a positive step, in light of plaintiff's prior criminal record and history of parole violations, the Board determined that the interests of the state and the objectives of the criminal justice system outweighed plaintiff's liberty interest in being granted parole. On April 21, 1999, the Parole Board advised plaintiff by letter that his appeal had been considered on April 14, 1999, and that "[a]fter careful review of the record and serious deliberation of your claims," the denial of parole was affirmed. (Popovich Aff. G.)
Similarly, as discussed in the fact section of this opinion, plaintiff received notice, reasons for parole denial and an opportunity to present evidence to the Parole Board related to his second parole hearing, held on December 9, 1999. Although plaintiff expressed concern about the parole hearings being "backed up," he does not dispute that he ultimately received a hearing, which again resulted in a denial of parole due to his prior criminal history and the risk that he would reoffend.
It is undisputed that plaintiff's parole hearings occurred after the initial eligibility dates, however, plaintiff received all the process that he was due. Plaintiff was in fact given full parole hearings on February 16, 1999 and December 9, 1999 and any delay after the original eligibility date was credited against the future parole eligibility date. Plaintiff was also afforded the opportunity to present evidence or testimony to rebut his prior criminal history or his inclination to recidivate. Additionally, as required by the Act, plaintiff was notified in writing of the denial of parole after both hearings, which he acknowledged in his March, 1999 and January 28, 2000 appeals. The Parole Board properly considered plaintiff's case and their decision to deny plaintiff parole was justified.
The defendants refer to Burgos v. New Jersey State Parole Bd., No. 99-3034, slip op. (D.N.J. 2000) (AET), in which the Court concluded that "the due process plaintiff is entitled to regarding parole decisions does not include receiving a parole hearing in exact accordance with the specific time period required" by N.J.S.A. 30:4-123.55(c). (See Spellmeyer Aff., Ex. A.) This conclusion was based on the principle that a procedural due process violation is not complete "unless and until the State fails to provide due process." Zinermon v. Burch , 494 U.S. 113, 125 (1990). Therefore, a procedural deprivation may be cured by the state by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under § 1983 arise. See McKinney v. Pate , 20 F.3d 1550, 1557 (11th Cir. 1994). Procedural errors may be cured by holding a new hearing in compliance with due process requirements. See Burgos (citing Batanic v. Immigration and Naturalization Service , 12 F.3d 662, 667 (7th Cir. 1993)); see also Hawker, 198 F.R.D. at 632-33 (citing Burgos and recognizing the risk that the due process clause does not require strict compliance with the deadlines set forth in the Act.)
In this case, just as in Burgos, plaintiff was given notice, reasons why the punitive aspect of his sentence had not yet been fulfilled, and an opportunity to respond to the parole board. The longest delay endured by plaintiff was a few months and all hearing delays were considered and applied toward the satisfaction of plaintiff's future parole eligibility dates, as set by the board at the time of both denials. Finally, plaintiff was granted parole and released on December 29, 2000, well before his maximum confinement date of July 15, 2002. (See Popovich Aff., Ex. B.) Plaintiff has not alleged any due process violation related to the parole hearing which led to his release in December, 2000.
This Opinion does not hold that a delayed parole hearing will never give rise to a due process violation. Rather, it merely finds that in this case, the process afforded plaintiff was due and complete.
In light of these facts, even viewed in a light most favorable to the non-moving plaintiff, this Court finds that no due process violation occurred when plaintiff's parole hearings were delayed, and that no genuine issues of material fact remain to be decided on plaintiff's due process claims. Accordingly, this Court will grant summary judgment as to these claims.
D. Improper Denial of Parole
In his amended complaint, plaintiff appears to attempt to remedy the deficiency in his equal protection claim based on improper denial of parole, originally dismissed without prejudice by this Court on August 15, 2000, for failure to state a claim. On that date, this Court wrote:
The principal procedural defects alleged by Collins, i.e., Defendants denied parole because Plaintiff is an African- American, and therefore is likely to commit crime if released, would, if established, necessarily imply the invalidity of [the] parole panels' decisions to deny parole. See Balisok, 520 U.S. at 646-47 (finding that hearing officer's "deceit and bias" would necessarily call into question the validity of the officer's decision); Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1996) (due process claim which challenges validity of parole denial not cognizable under § 1983); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (same). Therefore, Plaintiff's claims based on the parole panel denying parole are not cognizable under § 1983, and this Court is constrained to dismiss these claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted.Collins v. John Doe #1, No. 00-2203, slip op. at 11-12 (D.N.J. Aug. 15, 2000) (JBS). Plaintiff's amended complaint, filed October 6, 2000, restates the same equal protection arguments in support of his improper denial of parole claim that were dismissed sua sponte by this Court in August, 2000. Because plaintiff's Amended Complaint again fails to state a claim for improper denial of parole, and because this Court finds that the Parole Board had ample reason to deny plaintiff parole in February, 1999 and December, 1999, due to his prior criminal record and history af parole violations, defendants' motion for summary judgment will be granted and plaintiff's improper denial of parole claim will also be dismissed with prejudice.
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment on plaintiff's claims will be granted and Mr. Collins's amended complaint will be dismissed with prejudice.
The accompanying Order is entered.
O R D E R
This matter having come before the Court upon the motion of defendants Consovoy, Terhune, and Whitman for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on the claims in plaintiff Collins's Amended Complaint; and this Court having considered the parties' submissions; and for the reasons expressed in an opinion of today's date;
IT IS this day of May 2001 hereby
ORDERED that defendants' motion for summary judgment, which appears as Docket Item 12-1, be and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that plaintiff's Amended Complaint be, and hereby is, DISMISSED WITH PREJUDICE .
___________________ Dated
___________________ JEROME B. SIMANDLE U.S. District Judge