holding that "[i]t is clear that Jackson was not denied any constitutional rights by reason of the parole board's consideration of the nature and circumstances of his offense"Summary of this case from Slakman v. Buckner
Fed.R.App.P. 34(a); 5th Cir. R. 18.
December 10, 1979.
Norman Jackson, pro se.
Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before GEE, HENDERSON and HATCHETT, Circuit Judges.
Appellant, Norman Jackson, a Georgia state prisoner, brought this 42 U.S.C. § 1983 action against Mamie Reese, Chairman of the Georgia Parole Board. Appellant alleges (1) that the parole board's refusal to allow him access to his files violates due process, and (2) that the board's consideration of the nature and circumstances of his offense amounts to a second trial for the same offense, in violation of the double jeopardy clause. The district court dismissed his complaint for failure to state a cause of action. We affirm.
The issue presented in this action is whether appellant set forth specific facts that would, if proved, warrant the relief he sought. It is axiomatic that courts are required to liberally construe pro se complaints. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Appellant's complaint should not have been dismissed unless it appeared that he could prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1958); accord Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978). We hold that the district court properly dismissed appellant's complaint.
The threshold question under § 1983 is whether the complainant has been deprived of a cognizable liberty or property interest. The Supreme Court has held that the denial of parole, as distinguished from the revocation of parole, does not amount to a loss of liberty in the due process context. Greenhultz v. Nebraska Penal Inmates, ___ U.S. ___, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283. Since appellant has not shown a deprivation of a constitutionally protected interest, this Court need not address whether the Georgia Parole Board's procedures comport with due process. Id. at 1053.
It is clear that Jackson was not denied any constitutional rights by reason of the parole board's consideration of the nature and circumstances of his offense. See, Payne v. United States, 539 F.2d 443 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977). Likewise, it has been held that the refusal of a parole board to allow an inmate to examine his file "does not assume the proportions of a deprivation of his rights under the Constitution or the laws of the United States." Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir. 1974).
Accordingly, the judgment of the district court is affirmed.