United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is pending before the court on an
amended complaint filed by Douglas John Howell, a state
inmate currently incarcerated at the Staton Correctional
Facility. In this civil action, Howell alleges that members
of the Alabama Board of Pardons and Paroles recently barred
him from further consideration for parole in violation of the
Ex Post Facto Clause, due process and equal protection based
on a law passed after his 2005 conviction for first degree
rape. Specifically, Howell alleges Governor Kay Ivey
“signed this Bill into effect noting that from that
time forward these cases would be sentenced accordingly.
Commissioner Jeff Dunn and Lynn Head at the Alabama
Department of Pardons and Proles began applying this same
status of barring any party under this classification from
parole regardless of the sentencing date of their
crime.” Doc. 5 at 5.
April 27, 2018, defendant Dunn filed a motion to dismiss
(Doc. 19) and a brief in support of this motion (Doc. 20).
Counsel for Dunn, in pertinent part, argues that:
In his role as the Commissioner of the Alabama Department of
Corrections (hereinafter “ADOC”), Jefferson Dunn
has no authority to permit or deny parole for
any offender - including the
Plaintiff. That power rests with [the] Alabama Board of
Pardons and Paroles (hereinafter “the Board”).
See Ala. Code § 15-22-24(a) (“The Board
of Pardons and Paroles . . . shall be charged with the duty
of determining, through use of a validated risk and needs
assessment as defined in Section 12-25-32, what prisoners
serving sentences in the jails and prisons of the State of
Alabama may be released on parole and when and under what
conditions.”) Although ADOC is charged with housing the
inmates sentenced to its custody, an inmate's parole
status is solely within the province of the Board. Ala. Code
§ 15-22-24(a); see also Pinkerton v. State, 198
So. 157, 159 (Ala. Ct. App. 1940) (holding “the Board
of Pardons and Paroles has like and complete jurisdiction and
authority over all parolees . . .”). Accordingly, [. .
.] Commissioner Dunn [cannot, as a matter of law, prevent
the Plaintiff from receiving parole consideration]. [Parole
consideration and any decision on parole is] entirely subject
to the orders and actions of the Board. See Turner v.
Dillard, 2017 WL 253977, at *5 n.4 (M.D. Ala. 2017)
(“Alabama law vests complete discretion in the Alabama
Board of Pardons and Paroles ‘of determining what
prisoners may be released on parole and when and under what
conditions' parole will be granted.”); Carey v.
Danford, 2013 WL 3450919, at *14 (M.D. 2013) (noting
that Alabama law gives the Board “broad discretion to
determine whether an inmate should be granted parole . .
.”). Citing Alabama Code § 15-22-26 this Court
previously held that Alabama law “gives the parole
board total discretion in
determining whether an inmate should be granted
parole.” Turner, 2017 WL 253977 at *5 n.4
The Plaintiff has also alleged that the Board is refusing to
consider him for parole. (Doc 5 at p. 5.) Because Alabama law
gives the Board the discretionary authority to determine
whether an inmate is eligible for parole, if the Board
decides (or is ordered by this Court) to consider the
Plaintiff for parole, he will be considered regardless of any
policy put in place by ADOC or Commissioner Dunn. Ala. Code
§ 15-22-24(a); Pinkerton, 198 So. at 159. For
the same reasons, if the Board (or this Court) orders the
Plaintiff to be released on parole, he will be released
regardless of any policy put in place by ADOC or Commissioner
Dunn. Id.; see also Turner, 2017 WL 253977
at *5 n.4; Carey, 2013 WL 3450919 at *14.
Doc. 20 at 2-4.
on the arguments set forth by defendant Dunn, the court
entered an order directing that on or before May 15, 2018,
Howell “show cause why the defendant's motion to
dismiss should not be GRANTED.” Doc. 21. Howell has
failed to file a response to this order within the time
allowed by the court.
reasons set forth by defendant Dunn in his motion to dismiss,
the court finds that this motion should be granted.
Accordingly, it is the Recommendation of the Magistrate Judge
1. The motion to dismiss filed by Jefferson Dunn be GRANTED.
2. The claims against Jefferson Dunn be DISMISSED with
3. Jefferson Dunn be DISMISSED as a party to this cause of
4. The claims for relief presented against defendants Ivey
and Head be referred back to the undersigned for additional
before June 5, 2018, the plaintiff may file
objections to the Recommendation. Any objections filed must
specifically identify the findings in the Magistrate
Judge's Recommendation to which he objects. Frivolous,
conclusive or general objections will not be considered by
the District Court. The plaintiff is advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall “waive the right to challenge
on appeal the district court's order based on
unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of
justice. 11TH Cir. R. 3-1; see Resolution ...