NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 21, 2012*
Decided March 21, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐3755
JAMIE D. JARDINE and ERICK Appeal from the United States District
DARRINGTON, Court for the Eastern District of Wisconsin.
Plaintiffs‐Appellants,
No. 09‐CV‐1114
v.
J.P. Stadtmueller,
ALFONSO GRAHAM, et al. Judge.
Defendants‐Appellees.
O R D E R
Wisconsin inmates Jamie Jardine and Erick Darrington appeal from the summary
judgment against them in their suit under 42 U.S.C. § 1983 challenging parole procedures on
due process and ex post facto grounds. We affirm.
Jardine is serving a 60‐year sentence for an attempted intentional homicide and four
sexual assaults he committed in 1993. Darrington is serving a 30‐year sentence for crimes
*
After examining the submissions and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2)(C).
No. 11‐3755 Page 2
committed in 1995: armed robbery, theft, and criminal damage to property. Both have
served more than one‐fourth of their respective sentences and thus are eligible for
discretionary parole, see WIS. STAT. § 304.06, but neither has served enough time to be
eligible for mandatory or “presumptive mandatory release”—release that the state parole
commission can deny only in certain enumerated circumstances. Jardine’s only parole
denial occurred in 2008. Darrington has been denied for parole five times, most recently in
2010. Both were denied discretionary parole on the grounds that they had not served
“sufficient time for punishment” and had not completed particular treatment programs.
See WIS. ADMIN. CODE PAC § 1.06(9)(b), (e) (2000).
Jardine and Darrington brought this suit for declaratory and injunctive relief against
certain Wisconsin parole commission members and the Secretary of the Wisconsin
Department of Corrections, claiming that the defendants violated (1) due process by
refusing to give their parole “meaningful” consideration and (2) the ex post facto clause by
“secret[ly]” changing parole standards to, in effect, extend their prison terms. At screening,
see 28 U.S.C. § 1915A, the district court dismissed the due‐process claim because the
plaintiffs had no constitutionally protected liberty interest in discretionary parole. The court
did allow the plaintiffs to proceed on their ex post facto claim, but cautioned them that they
would “not have an easy time proving” any violation; the court further advised them that
their proof would have to include statistical data showing how the commission’s policy
changes threatened to retroactively extend their time in prison.
The plaintiffs sought reconsideration of that dismissal, and in doing so asserted for
the first time that they had a protected liberty interest in parole under WIS. STAT. § 304.06(1r)
(1993–94), which requires the commission to parole any prisoner who completes certain
educational programs upon serving one‐fourth of their sentences, “unless there are
overriding considerations not to do so.” The district court, without discussing § 304.06(1r)
specifically, denied the motion because it failed to identify a protected liberty interest.
The plaintiffs subsequently moved for summary judgment on the ex post facto claim
based on materials which, they believed, showed that the Wisconsin Department of
Corrections, at the direction of then‐Governor Tommy Thompson and then‐Secretary of the
Department of Corrections Michael Sullivan, adopted a “secret” policy effectively
abolishing discretionary parole. In support, the plaintiffs submitted the following materials:
(1) a letter, written in 1994 from Governor Thompson to Sullivan, expressing his desire to
end mandatory parole for violent offenders, (2) a 1994 letter from Sullivan to Thompson,
stating that sex offenders would be released only on mandatory release, and (3) statistics
showing a significant decrease in parole grants from 1994 to 2007.
The defendants countered with their own motion for summary judgment, which the
district judge granted. The court agreed with the defendants that the plaintiffs failed to
No. 11‐3755 Page 3
produce statistics showing that the new parole laws created a sufficient risk of increasing
the length of the plaintiffs’ prison sentences.
On appeal the plaintiffs first target the dismissal of their due‐process claim and
reassert generally that they were denied “meaningful” parole consideration. But the
plaintiffs do not have a protected liberty interest in discretionary parole, see Grennier v.
Frank, 453 F.3d 442, 444 (7th Cir. 2006), and so they cannot plausibly allege a deprivation of
due process.
The plaintiffs next repeat the argument they raised in their motion for
reconsideration—that WIS. STAT. § 304.06(1r)(a) (1993–94) creates a protected liberty interest
in parole. But the plaintiffs waived this argument by raising it for the first time in their
motion for reconsideration. See United States v. Mungo, 355 F.3d 969, 978 (7th Cir. 2004).
Finally the plaintiffs maintain that the defendants violated the ex post facto clause
when the they enforced a secret directive from Governor Thompson and Secretary Sullivan
to effectively abolish discretionary parole by arbitrarily ruling that all parole‐eligible
prisoners will be denied parole because none of them have served “sufficient time for
punishment.” See WIS. ADMIN. CODE PAC § 1.06(9)(b) (2000). As the district court correctly
determined, however, the plaintiffs needed to produce statistical evidence showing that any
changes in the law posed a substantial risk of lengthening their own sentences, see Glascoe v.
Bezy, 421 F.3d 543, 547–48 (7th Cir. 2005). Not only have the plaintiffs failed to provide
statistical evidence that denials of parole have increased (the number of paroles granted has
decreased, but this may simply reflect that fewer prisoners are eligible for parole), they
provide data only from June 2007 and before, even though all but one of the parole denials
they challenge occurred after June 2007.
The plaintiffs’ remaining claims—that the commission improperly added a new
criteria to parole reviews, that it improperly deferred the plaintiffs’ next parole hearings,
and that its actions violate the Ninth Amendment—are frivolous and warrant no discussion.
AFFIRMED.