Mu'min Rahim, James T. Vaughn, Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Commissioner Carl Danberg, Warden Perry Phelps, and Ronald Hosterman.
SUE L. ROBINSON, District Judge.
Plaintiff Mu'min Rahim ("plaintiff"), an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging deprivation of his right to due process in violation of the Fourteenth Amendment of the United States Constitution. Plaintiff proceeds pro se and was granted leave to proceed without prepayment of fees. ( See D.I. 4) Presently before the court are defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. (D.I. 48, 63) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the court will grant defendants' motion and will strike plaintiff's motion as untimely.
The amended complaint (D.I. 36) alleges that plaintiff was denied parole for arbitrary and constitutionally impermissible reasons and that defendants Carl Danberg ("Danberg"), Perry Phelps ("Phelps"), and Ronald Hosterman ("Hosterman") violated plaintiff's right to due process under the Fourteenth Amendment. Count one alleges that defendants, in concert with Board of Parole members,  unlawfully applied new and harsher sentencing laws and other arbitrary Delaware Department of Correction ("DOC") administrative regulations, policies, and procedures, all to plaintiff's detriment. Count two alleges that defendants denied plaintiff's family members and community supporters an opportunity to attend parole board hearings and speak on his behalf.
Defendants answered the complaint and, on July 23, 2012, the court entered a scheduling order that set a discovery deadline of November 23, 2012 and a summary judgment deadline of January 7, 2013. (D.I. 47) Defendants filed their motion for summary judgment on September 18, 2012, and plaintiff filed a combined objection to defendants' renewed motion for summary judgment and cross-motion for summary judgment on February 25, 2013. (D.I. 48, 63) The court will strike the cross-motion for summary judgment as it was not timely filed and will deny as moot the motion to strike as plaintiff has misconstrued defendants' reply.
In 1962, plaintiff was convicted of second degree murder, incarcerated, and paroled in 1972. In 1975, following a parole violation and a second conviction of second degree murder, plaintiff was again incarcerated. Plaintiff is serving a life sentence and has been imprisoned for thirty-six years. He has unsuccessfully applied for parole ten or eleven times. When plaintiff was deposed on November 21, 2012, his most recent application for parole had been pending for approximately one month, but a hearing had not yet been scheduled. The Board of Parole has denied each of plaintiff's applications for parole. (D.I. 62, ex. A, 5-9, 12, 22)
Plaintiff claims that parole should be based on the old laws and not under any news law, SENTAC (i.e., Sentencing Accountability Commission) or TIS (I.e., truth in sentencing) guidelines. He asserts that the point system applied to him pre-parole is based on TIS and SENTAC and is not the system that should be applied for consideration of his parole. Plaintiff contends that incorrect criteria is used in the parole process. According to plaintiff, because Danberg, Phelps, and Hosterman have supervisory positions and are part of the system that includes the Board of Parole, they are part and parcel of whatever happens to plaintiff. Plaintiff acknowledges that Danberg and Phelps do not have authority over the Board of Parole. Nor has plaintiff been prevented from appearing before the Board of Parole. ( Id. at 5, 11-13, 20-21)
When plaintiff was denied parole on March 24, 1988, the factors considered by the Board of Parole included: (1) not recommended for parole by institution; (2) extremely serious, repetitive nature of offense; (3) prior failure under parole supervision; (4) lengthy arrest record; (5) history of drug use (6) history of excessive drinking; and (7) not enough time served in relationship to sentence/offenses. (D.I. 49, ex. A) On March 7, 1991, plaintiff had a parole risk assessment rate of thirty-one. A score of twenty or more is "high risk."
The Multi-Disciplinary Team ("MDT") has voted in favor of recommending plaintiff's parole on numerous occasions beginning on May 22, 1991 and, thereafter, on July 6, 1993, November 9, 1995, August 20, 1997, December 22, 1999, December 12, 2001, August 25, 2004, June 20, 2005, and August 6, 2008. The most recent denial of parole was based upon: (1) violent nature of offense; (2) significant criminal history; (3) victim impact; and (4) prior failure parole/probation. Plaintiff acknowledged that he does not know of anything that defendants can do with regard to the Board of Parole denying him parole. (D.I. 51, ex. B; D.I. 55, D1, D68; D.I. 62, ex. A, 21)
Defendants move for summary judgment on the grounds that plaintiff's denial of parole had nothing to do with DOC policies and that plaintiffs ...