not mandatory." D.C. R. & Regs. tit. 9, § 105 (1972) (emphasis added).
Plaintiff's reliance on the official policies and practices of the Board of Parole to create a liberty interest also fails. He contends that the Board's requirement that an inmate attend his or her parole hearing, the unwritten policy of requiring a psychiatric evaluation before the Board would consider an inmate convicted of a violent crime for parole, and the alleged practice of reparoling inmates to a consecutive sentence within 24 months create a liberty interest.
Plaintiff's argument that requiring the inmate to be present at the parole hearing creates a liberty interest is unfounded. Before establishing what procedures are necessary to comply with due process, there must be a liberty interest. The procedures themselves do not create such an interest. "Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with the standards of fundamental fairness." Slocum, 678 F.2d at 942.
Furthermore, the Court finds that these regulations, practices, and policies do not create the requisite specific criteria for parole. See Winsett v. McGinnes, 617 F.2d 996, 1007 (3d Cir. 1980) (There must be policies and practices which create specific criteria for determining work release eligibility, and official discretion must be exercised consistent with the purpose of work release.); Lucas v. Hodges, 235 U.S. App. D.C. 63, 730 F.2d 1493, 1505 (D.C. Cir.), vacated as moot, 238 U.S. App. D.C. 246, 738 F.2d 1392 (D.C. Cir. 1984) ("The key to determining whether the state has created a liberty interest giving rise to a due process claim is whether it has set out explicit substantive criteria on which the decisionmaker must base the imposition of restrictions or the withholding of benefits.").
Moreover, the administrative record here indicates that the Board exercised its discretion consistent with the purpose of parole and reparole. The purpose of parole is to release inmates who have a "reasonable probability" of remaining at liberty without violating the law and whose release must not be incompatible with the welfare of society. See D.C. Code § 24-204 (1973). The psychiatric evaluation prepared in April, 1979 states that the plaintiff is a "seriously disturbed" man who is not ready for parole. In an earlier parole hearing memorandum, the Board indicated that the plaintiff had two disciplinary reports and failed to involve himself in the academic program or make significant overall progress. These reports supplied sufficient reasons for the Board to deny reparole and are consistent with the overall purpose of the District of Columbia parole system.
Finally, plaintiff has not established that the Board of Parole had a policy of releasing inmates to a consecutive sentence within 12 months of their parole revocation. The former chairperson of the Board asserted that the policy was to hold a reparole hearing within 12 months of parole revocation. See Just Deposition, at 43. Her interpretation of the policy is supported by the Department of Corrections Manual of Social Service Operations and Procedures, which states that rehearings in the case of a parole violator "having more than five years remaining . . . will ordinarily be held one year from the last action taken by the Board." Manual of Social Services Operations and Procedures § X-11 (revised 1978). Given these facts, which the Court accepts and finds credible, the Court holds that the Board had a rehearing policy but did not have a policy of automatically releasing parole violators to consecutive sentences within 12 months of their revocation.
For the above-stated reasons, the Court concludes that the statutes, regulations, policies, and practices of the District of Columbia Board of Parole do not create a liberty interest in reparole. Consequently, there is no basis for the plaintiff's due process claims in this case.
DEFENDANT'S ACTIONS DID NOT VIOLATE THE PLAINTIFF'S EQUAL PROTECTION RIGHTS
Principles of equal protection are incorporated in the Due Process Clause of the Fifth Amendment and are applicable to the District of Columbia. Bolling v. Sharpe, 347 U.S. 497, 498, 98 L. Ed. 884, 74 S. Ct. 693 (1954); see Brandon v. District of Columbia Bd. of Parole, 236 U.S. App. D.C. 155, 734 F.2d 56, 60 (D.C. Cir. 1984) cert. denied, 469 U.S. 1127, 105 S. Ct. 811, 83 L. Ed. 2d 804 (1985). Plaintiff has not alleged that he is a member of any suspect class. Therefore, equal protection requires that "a classification between similarly situated individuals bear some rational relationship to a legitimate state purpose." Brandon, 734 F.2d at 60 (citing Schweiker v. Wilson, 450 U.S. 221, 230, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981)); Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978) cert. denied, 439 U.S 1121, 59 L. Ed. 2d 82, 99 S. Ct. 1033 (1979). Even if the plaintiff's allegations that he was treated differently than other inmates are true, the Board of Parole had a rational basis related to legitimate state interests for such treatment. This rational relationship is all that equal protection requires. The law is well settled that equal protection does not require absolute equality or "precisely equal advantages." French v. Heyne, 547 F.2d 994, 997 (7th Cir. 1976).
The plaintiff came before the Board of Parole for reparole after committing his second serious crime, rape while armed. This second offense, strongly indicated that plaintiff was not rehabilitated and required incarceration. As set forth above, the Board denied reparole until the plaintiff began making substantial institutional progress. These denials certainly served the District of Columbia's interest in rehabilitating criminals and protecting the public welfare.
Plaintiff argues that had he been evaluated earlier by the psychiatrist, he would have entered psychotherapy sooner, made progress in treatment faster, and been reparoled at an earlier date. This is sheer speculation. The psychiatric report and the summaries of the parole hearings indicate that the plaintiff was a seriously disturbed man with little motivation to participate in academic programs. Even if the plaintiff had entered psychotherapy earlier it is impossible to know how long it would have taken for him to respond to treatment. Even those members of the parole staff who recommended plaintiff's reparole at an earlier date stated that he had not complied with the program requirements and that there was scant evidence to support a recommendation for reparole.
In light of the evidence in the administrative record, the Court finds that the defendants had more than ample reason for not reparoling the plaintiff, and these reasons furthered the legitimate interests of the District of Columbia in operating a secure prison system which served to rehabilitate inmates and protected the general public welfare. Thus, the plaintiff's equal protection claim must be denied.
In conclusion, the plaintiff does not have a liberty interest in reparole and the defendants have not violated his rights to equal protection of the law under the Constitution. For these reasons, the Court must grant the defendants' Motion for Summary Judgment and deny the plaintiff's Cross-Motion. An Order in accordance with the foregoing shall issue of even date herewith.
Counsel for the plaintiff and the defendants have the appreciation and respect of the Court for their competent and highly professional work on this case. Plaintiff's pro bono counsel are hereby discharged from further responsibility or work in the premises, in that, their task has been completed.
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
The Court has before it Cross-Motions for Summary Judgment, Oppositions filed by respective counsel, and Replies thereto. Upon consideration thereof, including able oral argument by counsel in addition to the reasons set forth in the Court's Opinion of even date herewith, the Court finds that the defendants are entitled to judgment as a matter of law pursuant to Fed. R. Civ. P. 56, and, thus, their motion must be granted. Accordingly, it is, by the Court, this 28th day of March, 1986,
ORDERED, that the plaintiff's motion for summary judgment be, and hereby is, denied; and, it is,
FURTHER ORDERED, that the defendants' motion for summary judgment be, and hereby is, granted; and, it is,
FURTHER ORDERED, that the above-entitled cause shall stand dismissed from the docket of this Court.
The Court has before it the plaintiff's Motion for Sanctions pursuant to Fed. R. Civ. P. 37(d) and the defendants' Opposition thereto. Plaintiff avers that the defendants failed to produce requested documents in a timely manner and requests that the Court direct the defendants not to use any documents produced after July 12, 1985 in support of their summary judgment motion or their opposition to the plaintiff's motion. Plaintiff also requests that the defendants be ordered to pay $750 for the costs of the motion.
Defendants apparently were unaware of the files and documents in question until after certain interviews and depositions were taken. In view of the result herein, and the Court's being thoroughly familiar with the record, and by virtue thereof, the Court finds that the failure to produce documents had no effect on the outcome of the above-entitled case, and while it, perhaps, resulted in some inconvenience to counsel for the respective parties, and while such delays are not generally tolerated by the Court, it is, in this instance, upon considered reflection, consistent with the ends of justice, and that all the circumstances of record, herein, would make an award unjust.
In view of the foregoing, it is, by the Court, this 28th day of March, 1986,
ORDERED, that the plaintiff's Motion for Sanctions for failure to produce requested documents in a timely manner be, and the same hereby is, denied.
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