Roger C. Day v. Terry E. Bernard

FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 4, 2020
In the Court of Appeals of Georgia
A20A1019. DAY v. BERNARD et al.
REESE, Presiding Judge.
Proceeding pro se, indigent prison inmate Roger Day sought to file a civil
action in the Superior Court of Fulton County against Terry Bernard and the Georgia
State Board of Pardons and Paroles (“the Board”)1 based on, among other things, their
alleged gross abuse of discretion in repeatedly denying him parole. In an order
denying the filing of Day’s pleading, the trial court stated that the Board had
complied with parole guidelines and that Day had failed to notarize his application
to proceed in forma pauperis. For the reasons set forth infra, we reverse the trial
court’s order and remand this case with direction to the superior court clerk to file the
complaint.
1
According to the complaint, Bernard is the Chairman of the Board.
Viewed de novo,2 the record shows that Day, who is incarcerated at the Coffee
Correctional Facility, filed a pro se “Inmate Form for Civil Action,” alleging that the
Board had failed to apply the proper guidelines for inmates serving a sentence of life
in prison, committed a gross abuse of discretion, and failed to perform its ministerial
duties, in violation of OCGA § 42-9-40 (a)3 and OCGA § 42-9-42 (c).4 The trial court
denied the filing of the petition, citing to Ray v. Carthen,5 ruling that “[w]hile [Day]
alleges that the reasoning used by the Board to deny parole was a gross abuse of
discretion, [Day] has presented no evidence that the Board’s actions rose to the level
of ‘arbitrary, capricious, and unreasonable.’” We granted discretionary review.
2
See Romano v. Ga. Dept. of Corrections, 303 Ga. App. 347, 348 (693 SE2d
521) (2010).
3
See OCGA § 42-9-40 (a) which states in pertinent part, “[t]he board shall
adopt, implement, and maintain a parole guidelines system for determining parole
action. The guidelines system shall be used in determining parole actions on all
inmates, except those serving life sentences, who will become statutorily eligible for
parole consideration.”
4
See OCGA § 42-9-42 (c) which states in relevant part that “[g]ood conduct,
achievement of a fifth-grade level or higher on standardized reading tests, and
efficient performance of duties by an inmate shall be considered by the [B]oard in his
or her favor and shall merit consideration of an application for pardon or parole.”
5
275 Ga. 459, 460 (1) (569 SE2d 542) (2002).
2
When reviewing on appeal an order denying the filing of an indigent inmate’s
pro se complaint, we view the complaint with “considerable indulgence, and a
complaint should not be dismissed without filing unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him
to some relief.”6 With these guiding principles in mind, we turn now to Day’s specific
claims of error.
1. Day argues that the trial court erred in denying the filing of his complaint
when he demonstrated that the Board’s actions amounted to a gross abuse of
discretion. For the reasons below, we reverse the trial court’s ruling and remand with
direction.
In 1990, Day was convicted of burglary, rape, and aggravated assault, and he
was sentenced to two consecutive life sentences, plus 100 years. We affirmed his
convictions on appeal.7
6
Thompson v. Reichert, 318 Ga. App. 23, 24 (733 SE2d 342) (2012)
(punctuation and footnote omitted).
7
See Day v. State, Case No. A19A1769 (dismissed Apr. 19, 2019). Day has
filed multiple unsuccessful appeals from the trial court’s denials of various post-
conviction challenges to his convictions and sentences. See Day v. State, Case No.
A02A0596 (dismissed Jul. 9, 2002); Day v. State, 242 Ga. App. 899 (531 SE2d 781)
(2000); Day v. State, 216 Ga. App. 29 (453 SE2d 73) (1994); Day v. State, 203 Ga.
App. 186 (416 SE2d 548) (1992).
3
OCGA § 9-15-2 (d) permits a trial court to deny the filing of a complaint by an
indigent pro se litigant if “the pleading shows on its face such a complete absence of
any justiciable issue of law or fact that it cannot be reasonably believed that the court
could grant any relief against any party named in the pleading[.]”8 “Mandamus is an
extraordinary remedy to compel a public officer to perform a required duty. Trial
courts will grant mandamus only when there is a clear legal right to the relief sought
or there is a gross abuse of discretion.”9 The decision of whether to grant parole lies
within the discretion of the Board.10 Thus, Day cannot prevail on his mandamus claim
unless he shows that the Board grossly abused that discretion.11
In his petition, Day alleged that the Board had considered and rejected him for
parole multiple times over past nine years. In 2012, the Board denied parole on the
ground that Day’s release “would not be compatible with the welfare of society . . .
due to the severe nature of the offenses for which [he] was convicted.” In 2015, the
8
Daker v. Humphrey, 294 Ga. 504, 505-506 (755 SE2d 201) (2014).
9
Grant v. Byrd, 265 Ga. 684 (2) (461 SE2d 871) (1995).
10
See Daker v. Ray, 275 Ga. 205, 206 (2) (563 SE2d 429) (2002).
11
See Mayo v. Head, 280 Ga. 793 (631 SE2d 108) (2006) (“Mandamus will not
lie to compel an official to perform a discretionary act unless such discretion has been
grossly abused.”) (footnote omitted).
4
Board denied parole for the same reason. In 2016, the Board again denied parole for
this reason, except this time it set two preconditions for parole — that Day participate
in a “[m]oral [r]econation [t]herapy program” and that he successfully complete a
work release program. Day alleged that he completed the moral reconation therapy
program in 2017. He claimed that he had not completed the work release precondition
because “only the Board/defendants [could] authorize placing [him] in a work release
program,” but the Board had not done so even though the Department of Corrections
had consistently recommended him for that program since 2013. In 2019, the Board
once again denied parole, citing an “insufficient amount of time served to date given
the nature and circumstances of [his] offense.”
Day claimed that the Board’s decision to deny him parole was a gross abuse of
discretion because, among other reasons, the Board itself was preventing him from
complying with the precondition it had set for his parole (work release). Day further
alleged that the Board had grossly abused its discretion by claiming that he had
served an insufficient amount of time (30 years), even though multiple other
prisoners, whom Day named in his petition, had been paroled after serving less time
for more egregious offenses.
5
The trial court rejected Day’s claim of a gross abuse of discretion on the
ground that Day had presented “no evidence” of such an abuse. However, at this stage
of the litigation, the trial court’s task is to “determine whether the facts alleged in the
complaint state a claim for relief under which the plaintiff may recover.”12 Further,
Day’s proposed complaint must be construed in the light most favorable to him and
is not “held to the stringent standards of formal pleadings.”13 Based on the foregoing,
the trial court held Day to an improperly high standard by requiring him to come
forward with evidence at this juncture. Because his allegations, generously
construed,14 state a claim for gross abuse of discretion on the part of the Board, we
reverse the trial court’s order. On remand, Day shall be permitted to file his petition.15
2. In light of our ruling, we need not address Day’s remaining enumerated
errors.
Judgment reversed and case remanded with direction. Markle and Colvin, JJ.,
concur.
12
Romano, 303 Ga. App. at 348 (citation and punctuation omitted).
13
Id. (citations and punctuation omitted).
14
See Romano, 303 Ga. at 349 (1).
15
See id. at 352 (2).
6