Welch v. Thompson

United States Court of Appeals,

Fifth Circuit.

No. 92-3525.

Danny WELCH, Plaintiff-Appellant,

v.

Glenn THOMPSON, et al., Defendants-Appellees.

May 13, 1994.

Appeal from the United States District Court for the Middle
District of Louisiana.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge:

Today we decide whether the Louisiana statute establishing the

state's prison work release program creates a protected liberty

interest for eligible prisoners, the deprivation of which cannot be

sustained without due process. The district court held that it

does not. We affirm.

I. History of the Case

The plaintiff, Danny Welch, is a former prisoner of the

Louisiana Department of Public Safety and Corrections ("the

Department"). Welch brought an action under 42 U.S.C. § 1983

against several Department officials at the Louisiana State

Penitentiary ("LSP") where he was incarcerated until his release in

October of 1990.1 Welch alleged that he was denied due process and

equal protection when he was excluded from the prison's work

release program during the final six months of his term. Welch

1
He also named as a defendant former Governor Buddy Roemer.

1
sought both punitive and compensatory damages and requested

injunctive and declaratory relief. In addition, he asked the

federal court to exercise pendent jurisdiction over his state law

claims.

The magistrate judge to whom the case was assigned entertained

both parties's motions for summary judgment. He recommended that

Welch's suit be dismissed with prejudice on the federal claims and

without prejudice on the state law claims. Specifically, the

magistrate judge held that the Louisiana statute establishing the

work release program did not create a liberty interest and,

therefore, Welch was not entitled to, nor had he been denied, due

process. The district court adopted the magistrate judge's

recommendation and granted the defendants's motion for summary

judgment. Welch appeals that judgment.2

During the course of this appeal, the parties were instructed

to file supplemental briefs addressing the following issue:

Whether the Louisiana work release provisions create a
protected liberty interest in light of Kentucky Department of
Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104
L.Ed.2d 506 (1989); Board of Pardons v. Allen, 482 U.S. 369,
107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); and Kindred v. Spears,
894 F.2d 1477 (5th Cir.1990).

II. Facts

The facts of this case are not in dispute. Welch received a

25-year sentence after being convicted of attempted aggravated

rape. Although his full-term date of release would have been

October 8, 2001, he was released with good-time credit on October

2
The district court denied Welch leave to proceed in forma
pauperis, this Court reversed.

2
2, 1990. On March 8 and March 30 of that year, Welch requested

placement in Louisiana's work release program.3 On April 6, 1990,

Classification Officer Glenn Thompson, one of the defendants,

denied the request on the ground that prisoners convicted of

attempted aggravated rape were not eligible to participate in the

work release program. Thompson denied Welch's second request as

well, citing the same reason.4

To exhaust his administrative remedies, Welch took his

complaint to the "second step" and reiterated his request. The

second step response, prepared by Warden John Wittey and Director

of Classification Joseph Lee, stated that "a recently implemented

procedure at LSP will routinely consider all persons for work

release six (6) months prior to release. Therefore, your request

for remedy is granted in part."

3
La.R.S. 15:1111 (West 1992) established the state's work
release program. The statute reads, in part:

A. The Louisiana Department of Institutions is hereby
authorized to establish and administer a work release
program for inmates of any institution under the
jurisdiction of the department.
4
In his denial of Welch's request, Thompson cited Department
Regulation 30-14(a) (Jan. 1, 1979) which states, in part
(emphasis added):

6. Selection Criteria: * * *

D. (1) Inmates convicted of the following offenses
are not eligible:

(a) Aggravated Arson

(b) Aggravated Kidnapping

(c) Aggravated or Attempted Aggravated Rape.

3
 The recently implemented procedure to which the letter alluded

reflected a policy change at LSP. In a memorandum dated April 13,

1990, the Assistant Secretary of the Department explained to all

Department wardens that an increase in the number of available beds

for inmates on work release required a major policy shift. From

the date of the memorandum forward, the Department would

change [its] philosophy from one of identifying the most
appropriate, suitable inmates to one of "they'll be on the
streets in six months anyway".

Accordingly, the memorandum overruled the previous categories of

ineligibility and replaced them with an across-the-board

eligibility for all prisoners in the last seven months of their

terms. For Welch, it meant that attempted aggravated rape convicts

were no longer barred from participating in the work release

program.

Welch nonetheless remained unsatisfied. His new-found

"eligibility" did not translate into an approval for one of the

available work release beds. Welch appealed to the Secretary of

the Department. In response, the Secretary explained that being

considered for work release is not the same as being approved for

work release. Welch again was denied work release but told that he

would remain under active consideration.5 Welch was released

without being placed on work release.

III. Discussion

We review a grant of summary judgment de novo. In so doing,

5
Welch now complains that he was never seriously considered.
He asserts that no prison official ever interviewed or
communicated with him.

4
we apply the same standard applied by the district court.6 A grant

of summary judgment is appropriate where there is "no genuine issue

as to any material fact" and "the moving party is entitled to

judgment as a matter of law."7 Welch raises no factual issues.

Welch alleges that he was deprived of his right to

participate in the Department's work release program without due

process of law. The Department contends that the Due Process

Clause is not implicated because no federal or state law creates a

right to participate in a work release program. Because our

exploration of La.R.S. 15:1111 locates no such liberty interest, we

side with the Department.

We look to federal constitutional law to determine whether

La.R.S. 15:1111 creates a legitimate claim or entitlement protected

by the Due Process Clause of the Fourteenth Amendment.8 Moreover,

the due process analysis is the same in measuring the Louisiana

statute against the strictures of the Fourteenth Amendment as it

would be under the Fifth Amendment.9 We analyze procedural due

process questions using a two-step inquiry: First, we determine

whether the state has deprived a person of a liberty or property

interest; if there has been such a deprivation, we must determine

6
Evans v. City of Marlin, Tex., 986 F.2d 104, 107 (5th
Cir.1993).
7
Fed.R.Civ.P. 56(c).
8
See Memphis Light Gas & Water Div. of Craft, 436 U.S. 1, 9,
98 S.Ct. 1554, 1560, 56 L.Ed.2d 30, 39 (1978).
9
See Burstein v. State Bar of California, 693 F.2d 511, 516
n. 8 (5th Cir.1982).

5
whether the procedures relative to that deprivation were

constitutionally sufficient.10

In the prison context, a state creates a protected liberty

interest when it limits official discretion in approving or denying

an inmate's request or eligibility for a prison program.11 If the

prison officials have wide authority and discretion, usually no

liberty interest is at stake. As a guidepost, we look for an

"if-then" relationship; i.e., if certain criteria are met, then

the outcome must follow.12 This relationship will be reflected by

"particularized standards or criteria that guide the State's

decisionmakers".13

This case turns on whether Louisiana created a liberty

interest when it established the work release program. We start

with the Supreme Court's important analytical observation in

Kentucky v. Thompson:

The fact that certain state-created liberty interests have
been found to be entitled to due process protection, while
others have not, is not the result of this Court's judgment as
to what interests are more significant than others; rather,
our method of inquiry in these cases always has been to
examine closely the language of the relevant statutes and

10
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,
460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506, 514 (1989).
11
See Olin v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741,
1747, 75 L.Ed.2d 813, 823 (1983).
12
The outcome must follow when the language is mandatory.
The term "shall" is the paradigmatic mandatory word. See Board
of Pardons v. Allen, 482 U.S. 369, 377, 107 S.Ct. 2415, 2420, 96
L.Ed.2d 303, 312 (1987).
13
Id. (internal quotations omitted).

6
 regulations.14

As a result, the cases addressing this issue vary widely because

they turn on the language of the particular statute or regulation

in question.15

La.R.S. 15:1111, the Louisiana statute establishing the work

release program, provides in part:

B. The Department shall establish rules for the administration
of the work release program and shall determine those inmates
who may participate in the release program. Any convict
sentenced to imprisonment at hard labor shall be eligible at
any time during his sentence to participate in the work
release program, subject to the provisions of this Part.

* * * * * *

I. Notwithstanding the provisions of Subsection B above or any
other law to the contrary, any inmate who had been convicted
of ... attempted aggravated rape ... shall be prohibited from
participation in the work release program except during the
last six months of their terms.16

The Department adopted several regulations carrying out this

statute. Regulation 30-14(A), the basis for the Department's

initial denial of Welch's request for work release, dictated that

inmates convicted of attempted aggravated rape would not be

14
490 U.S. at 461, 109 S.Ct. at 1908-09, 104 L.Ed.2d at 515.

15
See, e.g., Brennan v. Cunningham, 813 F.2d 1, 8 (1st
Cir.1987) (state law created liberty interest in halfway house
work-release program); Mahfouz v. Lockhart, 826 F.2d 791, 793-94
(8th Cir.1987) (no liberty interest in work release under
regulations); Whitehorn v. Harrelson, 758 F.2d 1416, 1422 (11th
Cir.1985) (disputed issue of fact on whether state regulations
created liberty interest in work release program); Winsett v.
McGinnes, 617 F.2d 996, 1006-07 (3d Cir.1980) (en banc), cert.
denied, 449 U.S. 1093, 101 S.Ct. 891, 66 L.Ed.2d 822 (1981)
(state law created liberty interest in work release program).
16
La.Rev.Stat.Ann. 15:1111(B) and (I) (West 1992).

7
eligible for work release, even in the last six months of their

terms. In addition, Department Regulation 30-14(A) explicitly

granted the Department wide discretion in selecting inmates for

work release.

As mentioned, the Department issued a memorandum overruling

that regulation on April 13, 1990, one month after Welch first

requested placement in the program. This superseding memorandum

directed that all inmates within seven months of their release

would be considered unless "blatantly ineligible" (emphasis in

original). Although this memorandum did not define "blatantly

ineligible", it provided some examples: prisoners with poor

records, those convicted of heinous crimes, and those likely to

evoke an adverse public reaction if placed in a community

rehabilitation center. In sum, prisoners convicted of attempted

aggravated rape were no longer automatically excluded from

eligibility to participate in work release as of April 1990.

The central issue, however, does not involve the regulation or

the superseding memorandum; it concerns the statute itself. Welch

argues that the statute establishing the work release program gives

prison officials no discretion in determining who may participate.

He argues that the statute allows the Department to establish rules

for the internal operation of the program. Those officials may

not, however, establish selection criteria for eligibility. Hence,

he asserts, prisoners fitting within the statute's criteria must be

allowed to participate.

In particular, Welch points to Subsection (I), which prohibits

8
persons convicted of attempted aggravated rape from being eligible

for work release except for the last six months of the sentence.

He argues that this provision of the statute limits the officials's

discretion to deny a prisoner work release during the last six

months of an inmate's term. Not surprisingly, he reads this

provision as a mandatory directive; i.e., persons convicted of

attempted aggravated rape "shall" not be excluded. Hence, he

urges, La.R.S. 15:1111 created a liberty interest in the work

release program during the last six months of a prisoner's term.

The Department argues that La.R.S. 15:1111 does not limit the

discretion of the officials in determining who is eligible to

participate in the work release program. The statute, it argues,

contains no "specific directives to the decision maker" which bind

the outcome, unless certain specified criteria are not met.17 The

Department looks to a different provision of the statute as support

for its position. Subsection (B) states that the Department "shall

determine those inmates who may participate in the release

program". This statement, it argues, gives the Department abundant

latitude; no mandatory language binds their decisions. The

Department distinguishes between the outer boundaries of who may

permissibly participate and mandatory dictates of who must be

allowed to participate. This provision secures only the former;

a liberty interest, however, would be created only with the latter.

We asked the parties to brief this issue in the light of three

17
Thompson, 490 U.S. at 462, 109 S.Ct. at 1909-10, 104
L.Ed.2d at 516.

9
cases: Kentucky Dept. of Corrections v. Thompson18, Board of

Pardons v. Allen19, and Kindred v. Spears20. Before passing on the

statute in this case, it is helpful to examine the decisions in

these three precedents.

In Thompson, the Supreme Court addressed whether Kentucky

prison regulations gave inmates a protected liberty interest in

receiving visitors.21 The regulations at issue in Thompson are

similar to the law at issue in the present matter. The regulations

stated that, "administrative staff reserves the right to allow or

disallow visits".22 Yet, the regulations aspired to meet the policy

of respecting the right of inmates to receive visitors.23

Nonetheless, in the light of the discretion inherent in the

"reserves the right" provision, the Court concluded that "[t]his

language is not mandatory."24 The Thompson Court held that, while

the Kentucky regulations provide "certain "substantive predicates'

to the decisionmaker", they do not require that a particular result

be reached even if the substantive predicates are met.25 In sum,

18
490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).
19
482 U.S. 396, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).
20
894 F.2d 1477 (5th Cir.1990).
21
490 U.S. at 455, 109 S.Ct. at 1906, 104 L.Ed.2d at 512.
22
Id. at 464, 109 S.Ct. at 1910-11, 104 L.Ed.2d at 517.
23
Id.
24
Id.
25
Id. The Court explained that the discretion built into
the language of the regulations allowed for no inmate to form an
"objective expectation" that a particular visitor will be

10
the Court held that the regulations did not create a liberty

interest protected by the due process clause of the Fourteenth

Amendment.26

In Board of Pardons v. Allen, the Supreme Court evaluated a

Montana parole statute. The Court stated that no meaningful

distinction existed between the Montana statute and the parole

statute that had been found to have created a liberty interest in

Greenholtz v. Nebraska Penal Inmates.27 The Court in Allen held

that the parole law created a liberty interest because it dictated

that inmates "shall" be released when certain criteria are met.28

The mandatory language in the statute created a "presumption that

parole release will be granted when the designated findings are

allowed, even if that individual falls within one of the
described categories. Id. at 464-65, 109 S.Ct. at 1910-11, 104
L.Ed.2d at 517-18.
26
Id. at 463-64, 109 S.Ct. at 1910, 104 L.Ed.2d at 517.
27
442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The
Montana Statute provided, in part:

Prisoners eligible for parole. (1) Subject to the
following restrictions, the board shall release on
parole ... any person confined in the Montana state
prison or the women's correction center ... when in its
opinion there is reasonable probability that the
prisoner can be released without detriment to the
prisoner or to the community[.]

(2) A parole shall be ordered only for the best
interests of society and not as an award of clemency or
a reduction of sentence or pardon. A prisoner shall be
placed on parole only when the board believes that he
is able and willing to fulfill the obligations of a
law-abiding citizen. Mont.Code Ann. § 46-23-201 (1985)
(emphasis added).
28
Allen, 482 U.S. at 377-78, 107 S.Ct. at 2420, 96 L.Ed.2d
at 312.

11
made".29

In Spears, this Court held that the Federal Parole Statute30

binds the Parole Commission to give reasons for its decisions.31

In analyzing the due process implications of a prisoner's right to

reasons for the Commission's decisions, we reiterated that a

protected liberty interest in parole exists "where the government

encapsulates parole in mandatory release language".32

We first concluded in the Spears case that the federal parole

statute "mirrors the Montana statute construed by the Supreme Court

in Allen".33 The statute dictates that a prisoner meeting the

criteria set forth "shall be released".34 This mandatory language

plainly created a liberty interest.

Next, we determined that the quantum of process due exceeded

that which is minimally required by the Constitution.35 The

government, through the statute and its governing regulations, had

"affirmatively agreed to bind itself to a higher level of

process".36 The regulations explicitly required that a decision

denying parole be good cause and clearly articulated. Accordingly,

29
Id.
30
18 U.S.C. § 4206(a).
31
894 F.2d at 1477.
32
Id. at 1481 (citations omitted).
33
Id.
34
Id.
35
Id. at 1482.
36
Id.

12
we held that the board was left with little discretion.37

These cases focus the law on the problem but still leave open

the determinative question in the case at hand: Does La.R.S.

15:1111 contain mandatory language that a prisoner shall be

eligible and approved for work release if certain criteria are met?

We hold that it does not.

Although at first blush, there appears to be an internal

contradiction between Subsections (B) and (I), a consistent reading

of the statute dissipates that reaction. Under Subsection (B), the

Department determines who may participate in the work release

program. This provision appears to grant the Department discretion

which, in turn, cuts against finding a liberty interest.

Subsection (I), however, appears to grant, as a matter of right,

the eligibility to participate in the work release program to all

inmates during the last six months of their terms, regardless of

their underlying convictions. This Subsection, then, cuts in favor

of finding a liberty interest.

Significantly, La.R.S. 15:1111 does not mandate who shall

participate in work release nor spell out the specific criteria to

be applied to the selection process. Instead, it mandates that the

Department shall determine which inmates are eligible.38 Subsection

37
Id.
38
"It should be obvious that the mandatory language
requirement is not an invitation to courts to search regulations
for any imperative that might be found. The search is for
relevant mandatory language that expressly requires the
decisionmaker to apply certain substantive predicates in
determining whether an inmate may be deprived of the particular
interest in question." Thompson, 490 U.S. at 464, 109 S.Ct. at

13
(I) grants eligibility to all prisoners in the last six months of

their terms. Hence, if it limits discretion in any way, it is only

to dictate the outer limits as to eligibility. But eligibility by

itself is not a liberty interest. A liberty interest is more than

"an abstract need or desire".39 It must be based on more than "a

unilateral hope".40 The term "eligibility" itself implies that

another hurdle must be cleared before the right to placement

accrues.41 The Supreme Court has said:

"There is a crucial distinction between being deprived of a
liberty one has ..., and being denied a conditional liberty
that one desires."42

Welch has been denied only the latter; the statute never addresses

the former, i.e., a prisoner's approval or actual placement on work

release.

As stated, there must be some criteria that, when met,

mandate the outcome. The best that Welch can do is assert that

La.R.S. 15:1111 creates a presumption that a prisoner serving in

the last six months of his sentence will be allowed to participate

1910, 104 L.Ed.2d at 517. In other words, just because the word
"shall" happens to be in the statute does not mean that the law
limits the officials's discretion.
39
Board of Regents of State Colleges v. Roth, 408 U.S. 564,
571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548, 561 (1972).
40
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458,
465, 101 S.Ct. 2460, 2464-65, 69 L.Ed.2d 158, 165 (1981).
41
See Webster's New Collegiate Dictionary (1975) (defining
"eligible" as "qualified to be chosen").
42
Greenholtz, 442 U.S. at 9, 99 S.Ct. at 2104, 60 L.Ed.2d at
676.

14
in work release.43 But that presumption, if it exists, still does

not get Welch where he needs to be. This is where the

eligibility/approval dichotomy provides a meaningful basis on which

to distinguish Allen and Spears. Even if Welch can point to a

presumption, it is a presumption of eligibility; the statute is

silent as to approval. Even, for the sake of argument, if the

statute created a presumption of approval, a presumption is not, by

its very definition, mandatory.

The implementing regulations flesh this out. As mentioned,

Department Regulation 30-14(A), which was the basis of the

Department's initial denial of Welch's request, provided:

The guidelines set forth herein are the outside limits on
eligibility and should not prevent the denial of work release
privileges to inmates whose records and observable behavior
indicate that approval would not be appropriate or who, in the
discretion of the Secretary, are not otherwise acceptable.44

The policy memorandum overruling regulation 30-14(A) also reflects

this understanding. That memo states that, while all inmates are

eligible to participate in the work release program during their

last six months, an inmate might be "blatantly ineligible" for any

number of reasons.45 The policy change was designed not as a

substitute for the procedure in place but only as a supplemental

43
While the Supreme Court stated that the parole statute at
issue in Allen also created a presumption, it explained that the
presumption could be overcome only if stated criteria were met.
In other words, the parole statute left no discretion in the
officials.
44
Department Regulation 30-14(A) (emphasis added).
45
Memorandum from T. Sewell to All Wardens of Apr. 23, 1990,
at 1.

15
means for identifying "the most suitable inmates for assignment to

work release".46 This language plainly reflects the understanding

that the wide discretion for selecting the participants remains

within the Department.

The statute's overall scheme, while not entirely deferential,

entrusts the Department with the actual operation of the work

release program. The statute does not dictate to the Department

whom it must put on work release. While it is true that some

discretion in some aspects of the process is not fatal to finding

a liberty interest, we conclude that here the latitude that La.R.S.

15:1111 places in the Department forecloses Welch's assertion that

he was deprived of his due process rights.47 In sum, no liberty

interest is created by La.R.S. 15:1111.48

Similarly, as no federal claims remain, we uphold the

district court's refusal to entertain Welch's state law claims.

The standard of review in this context is whether the district

46
Id. at 1-2.
47
The Court in Spears, for example, took pains to indicate
that the Commission could have broad discretion in using its
judgment in applying the standards set. Still, that statute
contained mandatory language which meant that once the officials
determined that those standards were met, the prisoner had to be
released. The parole statute in Allen similarly gave broad
discretion to the officials, but dictated that when the criteria
were met, the outcome could not be changed. Again, the different
outcomes in the cases is a reflection of the distinct wording of
each statute.
48
Because the determination of the main issue in this case
resolves the matter, we do not reach Welch's other claims. We
mention, however, that Welch has failed to allege any basis for
his equal protection claim. Specifically, he has not explained
in what suspect class he claims membership.

16
judge abused his discretion.49 In general, a district court may

entertain state law claims pursuant to its "supplemental

jurisdiction," provided the claims arise from the case or

controversy over which the district court had original

jurisdiction.50 When all federal claims are dismissed, the district

court enjoys wide discretion in determining whether to retain

jurisdiction over the remaining state law claims.51 In the light

of our deferential review, we conclude that the district judge was

within his discretion in refusing to exercise pendent jurisdiction.

IV. Conclusion

We hold that La.R.S. 15:1111 does not create a liberty

interest subject to the Due Process Clause. The judgment of the

district court is AFFIRMED.

* * * * * *

49
See Noble v. White, 996 F.2d 797, 799 (5th Cir.1993) (per
curiam).
50
28 U.S.C. § 1367(a).
51
Noble, 996 F.2d at 799.

17