Debra Jenner v. Kay Nikolas

United States Court of Appeals
For the Eighth Circuit
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No. 15-2900
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Debra Sue Jenner
lllllllllllllllllllll Plaintiff - Appellant
v.
Kay Nikolas; Keith Bonenberger; Don Holloway; Ken Albers; Dave Nelson; Mark
Smith; Kevin Krull; Patricia White Horse-Carda; James Sheridan
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: March 16, 2016
Filed: July 8, 2016
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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Debra Jenner filed this lawsuit pursuant to 42 U.S.C. § 1983 against Appellees,
current and former members of the South Dakota Board of Pardons and Paroles (the
Board). Appellees filed a motion to dismiss the action for failure to state a claim,
which the district court1 granted. Jenner appeals; we affirm.
I. BACKGROUND
Jenner was convicted of second-degree murder in 1988 for the death of her
three-year-old daughter Abby. Jenner was initially sentenced to life in prison without
parole. In 2002, South Dakota Governor William Janklow commuted Jenner's
sentence to a term of 100 years in prison, making Jenner eligible for parole. Appellee
Sheridan, then a member of the Board, recused himself from participating in the
commutation decision because he had taken part in Jenner's criminal investigation.
Later in 2003, when Jenner appeared before the Board for her hearing, Sheridan again
recused himself from the matter. At that time there were twenty-six photographs of
Abby's body in Jenner's file available for the Board to review. The Board denied
parole. Jenner appeared before the Board several times after 2003 and was denied
parole on each occasion.
Believing that the chilling, graphic photos were placed in her file by Sheridan
for the purpose of negatively impacting the consideration of her parole request,
Jenner unsuccessfully sought to have the photographs removed from her file.
Ultimately, Jenner filed a petition for writ of mandamus with the South Dakota
Supreme Court seeking review of the Board's denial of Jenner's motion to have the
photographs removed from her file. The court denied that petition, but the executive
director of the Board later declared that he removed all photographs received before
January 14, 2014, from Jenner's file, with the exception of photographs received from
the South Dakota Attorney General. Those remaining photographs, stated the
director, remained in the file to aid board members who wish to consider the nature
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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and circumstances of Jenner's offense when determining whether to grant or deny
parole.
Jenner filed a complaint in federal court in September 2014 alleging that the
inclusion of the photographs of Abby in her file deprived her of her right to have her
request for parole heard by an unbiased and impartial board, which violated her civil
rights guaranteed by 42 U.S.C. § 1983. Jenner claimed before the district court, and
now claims on appeal, that Sheridan submitted the photographs in an effort to ensure
that Jenner would not be granted parole; that Sheridan, although he recused himself
from proceedings involving Jenner, placed the photographs in her file and so has
"done by indirection that which he could not do directly" and that he has thus
repeatedly "spoken volumes" on a subject on which he had an admitted conflict of
interest. The district court dismissed the complaint, holding that Jenner had no
constitutionally protected liberty interest in a parole hearing and thus the Board did
not deprive her of any due process right.
II. DISCUSSION
"We review a district court's grant of a motion to dismiss de novo." Glasgow
v. Nebraska, 819 F.3d 436, 440 (8th Cir. 2016) (quoting Christiansen v. W. Branch
Comm. Sch. Dist., 674 F.3d 927, 933-34 (8th Cir. 2012)).
The Fourteenth Amendment to the United States Constitution, extending due
process protections of the Fifth Amendment, provides in part that no state shall
"deprive any person of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, § 1. The Supreme Court mandates a two-step analysis for
procedural due-process claims: "We first ask whether there exists a liberty or
property interest of which a person has been deprived, and if so we ask whether the
procedures followed by the State were constitutionally sufficient." Swarthout v.
Cooke, 562 U.S. 216, 219 (2011). Protected liberty interests may arise from the Due
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Process Clause itself or from an expectation or interest created by state law or
policies. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Jenner's argument in this matter is not that she was denied due process because
she failed to receive a parole hearing. Indeed, she received several hearings. The
state convicted Jenner before July 1, 1996, and thus she is subject to the "old" South
Dakota parole statute, which provided that "[w]hen an inmate becomes eligible for
consideration for parole, the inmate shall be called before the Board of Pardons and
Paroles to personally present the inmate's application for parole." SDCL § 24-15-8
(2002); Bergee v. S.D. Bd. of Pardons & Paroles, 608 N.W.2d 636, 640, 643 (S.D.
2000).2 Rather, citing Daily v. City of Sioux Falls, 802 N.W.2d 905 (S.D. 2011),
among other cases, Jenner argues that her liberty interest lies in her right to an
unbiased and impartial tribunal, a right she claims is "implicit in," or emanates from,
her statutory right to a hearing. She argues that ultimately, the overriding
constitutional issue is the lack of an effective conflict-of-interest policy for the Board.
Having such a policy, argues Jenner, would vindicate her constitutional right to a fair
and impartial hearing.
Jenner's due process claim fails. First, it is well-established that Jenner does
not have a protected, federal due process right to parole. Greenholtz v. Inmates of the
Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) ("There is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration
of a valid sentence."); Swarthout, 562 U.S. at 220 ("There is no right under the
Federal Constitution to be conditionally released before the expiration of a valid
sentence, and the States are under no duty to offer parole to their prisoners."). Nor
2
The current version of SDCL § 24-15-8, amended in 2012, provides in part
that "the inmate is entitled to a hearing with the Board of Pardons and Paroles," rather
than stating that "the inmate shall be called before the Board of Pardons and Paroles,"
but this change in the statutory language has no effect here, as both versions require
a hearing with the Board.
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does South Dakota's discretionary parole process that is applicable here create a
liberty interest in parole by statute. Bergee, 608 N.W.2d at 642-43 (noting that for
those inmates subject to the post-July 1, 1996, parole statute, the Board has no
discretion and inmates shall be granted parole if their program directives have been
met). In this case, Jenner does not argue that she has a constitutionally protected
interest in parole.
Second, despite the fact that Jenner has a statutory right to a parole hearing,
that right is not a protected liberty interest. The existence of a state-mandated
procedural requirement does not, in and of itself, create a constitutionally protected
liberty interest. Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983) (holding that
the discretionary nature of the prison decision at issue negated any state-created
liberty interest in the prison regulations that required a particular kind of hearing
before the decision could be made). "Process is not an end in itself. Its constitutional
purpose is to protect a substantive interest to which the individual has a legitimate
claim of entitlement." Id. at 250. While "[s]tates may under certain circumstances
create liberty interests which are protected by the Due Process Clause," those interests
"will be generally limited to freedom from restraint . . . [that] impose[] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Prison regulations primarily
designed to guide correctional officials in the administration of a prison are not
designed to confer such rights. Id. at 481-82. Were such state regulations found to
create constitutionally protected liberty interests in all instances, there would exist a
disincentive for states to codify prison management procedures in the interest of
uniform treatment. Id. at 482. If that were the state of the law, states could "avoid
creation of 'liberty' interests by having scarcely any regulations, or by conferring
standardless discretion on correctional personnel." Id. at 482. Accordingly, Jenner
does not have a protected liberty interest in her statutory right to a parole hearing.
The lack of a constitutional interest in the hearing itself is fatal to her claim that
she has an implicit, protected right to an unbiased and impartial tribunal conducting
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the parole hearing. Because she has no protected liberty interest upon which to base
the implicit right she advances, her claim fails, at least as a constitutional matter. See
Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981) ("Plainly . . . the
underlying right must have come into existence before it can trigger due process
protection."). The process of providing an unbiased and impartial tribunal does not
exist in a vacuum, it exists to afford due process when due process is required to
protect a liberty interest. Providing an unbiased and impartial tribunal itself is not a
liberty interest protected by due process. See Morrissey v. Brewer, 408 U.S. 471,
488-89 (1972) (discussing the importance of a "neutral and detached" hearing body
in parole revocation hearings to protect the liberty interest held by a parolee in his
continued liberty); Withrow v. Larkin, 421 U.S. 35, 47 (1975) (discussing the
importance of an unbiased decisionmaker to prevent even the probability of
unfairness to protect the property and liberty interests afforded a practicing
physician). "Process only assumes significance in a context." Brandon v. Dist. of
Columbia Bd. of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987). Despite Jenner's
argument to the contrary, the hearing right she advances in support of her protected
interest is procedural. That the Board is statutorily required to provide a hearing does
not change its procedural nature. Because Jenner's statutory right to a parole hearing
is not a protected liberty interest, there is no interest for process to protect in this case.
Olim, 461 U.S. at 250.
III. CONCLUSION
For the reasons stated herein, we affirm.3
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3
Any attempt by Jenner to seek class status under Federal Rules of Civil
Procedure 23(a) or (b)(2) for the claims addressed herein, likewise fails for the
reasons provided in the analysis.
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