UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50217
Summary Calendar
JOE SAM JONES,
Plaintiff-Appellant,
VERSUS
JACK KYLE, Chairman,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(A 94 CA 500)
( September 22, 1995 )
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
BACKGROUND
Joe Sam Jones, a prisoner of the State of Texas, filed a civil
rights action under 42 U.S.C. § 1983 against Jack Kyle, the
chairman of the Texas Board of Pardons and Paroles (the Board).
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Jones was arrested on or about March 23, 1988, convicted of
aggravated possession of a controlled substance, and sentenced to
a term of 50 years in prison. He alleges that Kyle changed the
criteria for release on parole after his sentence and that the
changes violated his rights under the Ex Post Facto Clause and the
Due Process Clause. Specifically, Jones alleges that he is now
denied annual review, which was the policy in effect at the time of
his sentencing, and that he "may be subjected to `set-offs'2 which
are two or three years apart". Jones seeks injunctive relief,
declaratory relief and money damages.
Kyle filed an answer asserting qualified immunity and a motion
for summary judgment. Relying on Heck v. Humphrey, 114 S. Ct. 2364
(1994), Kyle asserts that Jones' § 1983 challenge to the duration
of his confinement was not cognizable because Jones' conviction had
not been impugned by any issuance of a writ of habeas corpus.
Jones filed both an opposition to the defendant's motion for
summary judgment and his own motion for partial summary judgment.
He maintained that Heck did not apply because he had not asserted
that he should be released on parole. Jones had alleged in his
complaint that "he should be considered for parole in a manner in
which similarly situated prisoners were considered at the time of
the commission of the offense". He asked the court to grant
partial summary judgment in his favor on the issue of qualified
immunity.
2
A set-off is the amount of time that must expire before
there is further review of the denial of parole. Tex. Admin.
Code tit. 37 § 145.7(2) (1976).
2
The magistrate judge characterized Jones' complaint as raising
three issues: 1) he was deprived of due process because he was not
interviewed by a parole board member in the manner specified by
statute, 2) the change in policy that eliminated annual interviews
violated the Ex Post Facto Clause, and 3) parole consideration
every two or three years violated due process. The magistrate
judge recommended that the district court grant Kyle's motion for
summary judgment, deny Jones' motion for partial summary judgment,
and dismiss the action with prejudice.
The district court determined that Heck is not applicable
because Jones is challenging the frequency of his parole hearing
and not the duration of his confinement. Also, the district court
concluded that further briefing was necessary on Jones' claim that
the change in parole policy violated the Ex Post Facto Clause.
Partial summary judgment was granted in favor of the defendant on
the claim that Jones' "rights were violated when he was interviewed
by a designee of the parole board".3
Kyle filed a supplemental motion for summary judgment with
supporting exhibits. By comparing the law in effect at the time of
Jones' conviction, March 23, 1988, to the present law, Kyle asserts
that the law and the substance of the regulations governing the
parole interview had not changed.
Jones filed a response and stated that it was impossible for
him to brief adequately the changes in the parole hearing process
3
Jones does not address this issue on appeal, and it is
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
3
without an opportunity to conduct discovery. He was aware that the
scale used to determine parole had changed and that the number of
paroles had been reduced by two-thirds since Governor Richards had
taken office.
The district court found that the law regarding the frequency
of parole hearings had not been changed. "In each instance, the
set-off period for the next hearing is left to the discretion of
the parole panel." Because the law had not changed, Jones could
not show a violation of the Ex Post Facto Clause on that ground.
Further discovery was not warranted because Jones failed to state
any other claims of constitutional dimension. The district court
granted summary judgment in favor of the defendants.
Jones filed a post-judgment motion pursuant to Fed. R. Civ. P.
59(e)4 asserting that the parole board abused its discretion in
changing the regulations and that he could not prove his claim
unless the district court allowed him to conduct adequate
discovery. The district court denied the motion. Jones filed a
timely notice of appeal.
OPINION
Jones contends that the district court erred in granting
Kyle's motion for summary judgment. He argues that the parole
board's new policies, procedures, rules, regulations, and laws were
4
"If the motion is served within ten days of the rendition
of judgment, the motion falls under Rule 59(e); if it is served
after that time, it falls under Rule 60(b)." Ford v. Elsbury, 32
F.3d 931, 937 n.7 (5th Cir. 1994). Because weekends are not
counted in the calculation, Fed. R. Civ. P. 6(a), Jones' motion
was filed and served within ten days of the entry of judgment.
4
applied ex post facto and resulted in a denial of his alleged due
process right to annual parole consideration.
"Summary judgment is reviewed de novo, under the same
standards the district court applies to determine whether summary
judgment is appropriate." Amburgey v. Corhart Refractories Corp.,
936 F.2d 805, 809 (5th Cir. 1991). Summary judgment is proper
when, viewing the evidence in the light most favorable to the non-
movant, "there is no genuine issue as to any material fact and
. . . the moving party is entitled to judgment as a matter of
law". Id.; Fed. R. Civ. P. 56(c). If the moving party meets the
initial burden of establishing that there is no genuine issue, the
burden shifts to the non-moving party to produce evidence of the
existence of a genuine issue for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 321 (1986).
The district court granted Kyle's motion for summary judgment
on Jones' claim that his constitutional rights were violated when
he was interviewed by a designee of the parole board and ordered
further briefing on the ex-post-facto claim.
Kyle filed a "Supplemental Motion for Summary Judgment" and,
as instructed by the district court, provided summary judgment
evidence to defeat Jones' ex-post-facto claim only. In his
response, Jones once again asserted that "his right to a hearing
for parole in the manner that hearings were held at the time of the
commission of his offense ha[d] been violated." He stated that
discovery was necessary to support his due process claims.
5
Even if regulations do not create a liberty interest, this
Court has recognized that a liberty interest can be created by the
practices of a state. Lewis v. Thigpen, 767 F.2d 252, 261 (5th
Cir. 1985). Without a full factual development of the interaction
between the regulations and the practices, it is difficult for this
Court to review the question whether a liberty interest was
created. Parker v. Cook, 642 F.2d 865, 876 (5th Cir. Unit B Apr.
1981).
Jones complains that his alleged due process right to be
considered for parole annually was violated. The district court
did not address or order further briefing of Jones' claim that,
under the law in effect at the time of the offense, he had a
liberty interest in annual parole consideration and that failure to
provide annual review deprived him of his rights under the Due
Process Clause. Kyle has not met the initial burden of
demonstrating the absence of a genuine issue of material fact on
this issue; therefore, summary judgment in favor of Kyle on the due
process claim was error. See Little v. Liquid Air Corp., 37 F.3d
at 1075 (5th Cir. 1994). The judgment of the district court shall
be vacated insofar as it relates to the due process claim and the
case is remanded for further proceedings as to that issue and any
declaratory injunctive relief related thereto. Likewise, we vacate
the order of the district court denying Jones' motion for further
discovery as to the due process issue.
In all other respects the judgment of the district court is
affirmed; specifically, we affirm:
6
a. the decision of the district court dismissing Jones'
claim that his rights under the Ex Post Facto Clause were violated;
and
b. the decision of the district court dismissing Jones'
claims for monetary damages.
VACATED and REMANDED in part and otherwise AFFIRMED.
opin\95-50217.opn
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