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WATSON v. DISABATO

July 9, 1996

HUBERT WATSON, Plaintiff,
v.
MARY DiSABATO and ARTHUR JONES, Defendants.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Defendants, sued in their individual capacities, *fn1" move for summary judgment pursuant to Fed. R. Civ. P. 56, a motion Hubert Watson does not formally oppose. For the reasons set forth below, the Court will grant the defendants' motion in part and deny it in part.

 BACKGROUND

 The relevant background information is set forth in the Court's Memorandum and Order dated April 29, 1994. The developments that have occurred since then are summarized below.

 On September 12, 1995, the Court decided defendants' initial motion for summary judgment, holding that Watson's claim concerning the defendants' May 17, 1991 denial of parole was time-barred. In addition, the Court granted summary judgment as to Watson's claim that the Adult Panel impermissibly considered his past criminal history in denying him parole. However, the Court denied the motion for summary judgment as to his claims that he was impermissibly denied parole on February 3, 1992 and January 22, 1993, and forced to serve his maximum sentence. It is at these claims that the defendants take aim by this motion.

 Fed. R. Civ. P. 56(c) provides that summary judgment shall be granted:

 
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Once the moving party has shown that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless the non-moving party can demonstrate that there is sufficient evidence favoring the non-moving party to enable a reasonable fact finder to return a verdict in that party's favor. Anderson, 477 U.S. at 249. The court must view the facts and inferences therefrom in the light most favorable to the nonmoving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

 The Liberty Interest Created by the Parole Act

 Watson brought this suit under 42 U.S.C. ยง 1983, a Reconstruction Era statute that created a cause of action for those claiming that a person acting under color of state law has violated the Constitution or laws of the United States. Thus, we must first determine whether the conduct Watson challenges violated federal law, that is, whether DiSabato and Jones infringed Watson's constitutional rights in the manner by which they denied him parole, and by forcing him to serve his maximum sentence.

 Because there is no constitutional or inherent right to parole, a state may, but need not, establish a system by which a prisoner is released conditionally before the expiration of his term. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). But in Greenholtz the Supreme Court held that a state parole statute can create an entitlement protected by the Due Process Clause. The unique structure and language of the Nebraska statute challenged in Greenholtz created not merely a possibility but an "expectancy of release" that warranted the procedural safeguards of the Due Process Clause. Id.; see Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987). The New Jersey parole statute contains the same "shall" and "unless" language that Greenholtz and Allen held created an expectation of release:

 
An adult inmate shall be released on parole at the time of parole eligibility, unless information...indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under ...

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