                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                                FEB 24 1997
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                          PATRICK FISHER
                                                                                    Clerk


 DONALD RICHARD MAGHE,

               Plaintiff - Appellant,                        No. 96-7060
          v.                                                E.D. Oklahoma
 MIKE KOCH, Parole Board Investigator;                 (D.C. No. CV-93-809-S)
 ROBERT FAULKNER, Parole Board
 Administrative Officer, aka Bob Faulkner,

               Defendants - Appellees.


                              ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Donald Richard Maghe, an inmate of the Oklahoma Department of

Corrections, appeals the district court’s order dismissing his 42 U.S.C. § 1983 complaint

against Mike Koch and Bob Faulkner. Maghe claims that Koch, a parole investigator,

submitted false and prejudicial information to the parole board and that Faulkner, Koch’s

supervisor, failed to expunge the information from Maghe’s parole file. Maghe claims

that although prison officials now have corrected or removed all of the alleged errors in

his parole file, he is entitled to the following relief: (1) a declaration that the Defendants

violated his due process rights by submitting the information and failing to correct the

errors after being notified; (2) compensatory and punitive damages for these alleged

constitutional violations; and (3) an order that the Defendants establish a procedure for

correcting erroneous parole investigation reports. Because we hold that Maghe has no

liberty interest in parole under Oklahoma’s parole system, we affirm.



                                       I. Background

       In May of 1979, Maghe was committed to the Oklahoma Department of

Corrections to serve a life sentence for first degree murder. Maghe was scheduled for his

first pre-parole consideration in August of 1992. In preparation for his pre-parole

consideration, Defendant Koch, a parole investigator, interviewed Maghe and prepared an

investigative report (the 1992 report) which he submitted to the parole board members.




                                             -2-
On August 19, 1992, the parole board reviewed Maghe’s file, including the 1992 report,

and denied him pre-parole.

       On March 26, 1993, Maghe received a copy of the 1992 report. Soon thereafter,

Maghe wrote a letter to Koch’s supervisor, Defendant Faulkner, stating that the

information in his 1992 report was “ninety per cent false.” Faulkner wrote back to Maghe

that he could not respond to his complaint until he was more specific about what aspects

of the 1992 report were false. On May 13, 1993, Faulkner received another letter from

Maghe specifically detailing the items in his 1992 report which he deemed incorrect and

providing documentation to support some of the corrections he proposed. Some of the

alleged errors that Maghe pointed out were: (1) that the report listed a felony conviction

for automobile larceny with a sentence of fifteen years, although on appeal the sentence

had been modified to seven and a half years; (2) that the report listed a felony conviction

for driving while intoxicated with a sentence of three years, although on appeal the

sentence had been modified to one year and the conviction to a misdemeanor; (3) that the

report recounted what purported to be Maghe’s version of the facts regarding the murder

offense, although Maghe denied that he made such statements; and (4) that the report

indicated that Maghe was dishonorably discharged from the military, although he in fact

received an undesirable discharge.

       On June 4, 1993, Faulkner wrote a letter in response to Maghe’s detailed

complaints about the 1992 report. Faulkner stated that because he was not present at the


                                            -3-
interview between Koch and Maghe, he could not respond to Maghe’s assertions about

what was said. With regard to the complaints about Maghe’s former convictions,

Faulkner indicated that the modified sentences were not “reflected on the FBI rap sheet”

and that Maghe “should request that this information be placed in Section 1 of [his] DOC

field file, . . . that [his] FBI records be updated to reflect these rulings,” and that he obtain

help from the facility records officer to make these changes. Faulkner also indicated that

the information which Maghe sent to him would be “kept in [his] parole file at this

office.”

       Maghe was then docketed for parole consideration in September of 1993. By letter

dated June 13, 1993, Maghe informed the parole board that he planned to challenge the

information in the 1992 report in court and until such matter was resolved he waived his

parole interview and personal appearance before the parole board. However, on July 8,

1993, Koch scheduled Maghe to be interviewed in preparation for his September 1993

parole consideration. On the interview schedule sheet, Koch indicated that if an inmate

wished to waive his parole consideration, the inmate must contact him at the time

scheduled for the interview. When Maghe did not show up for the parole interview or to

indicate that he wished to waive parole consideration, Koch left him a note rescheduling

the appointment and asking Maghe to contact him if another time was more convenient.

Koch also informed Maghe that if he did not show up for the interview then he would

“have no input to the parole summary.” Maghe did not show for the rescheduled


                                              -4-
interview or contact Koch to schedule a different time. Accordingly, Koch prepared the

parole investigation report (the 1993 report) based on the information from the 1992

report, including the alleged errors, and submitted it to the parole board. After the

September 1993 hearing, the board denied Maghe parole and on October 22, 1993, he

filed this section 1983 action.

         Maghe was docketed for a third parole consideration in September 1994. He

again refused to be interviewed and Koch prepared the 1994 report based on the

information in the 1992 and 1993 reports, again including the alleged errors, and

submitted it to the parole board. The board denied Maghe parole. Thereafter, upon

Maghe’s request, he was assigned a new parole investigator, Ray Cantrell, who

interviewed Maghe on May 17, 1995, in preparation for his 1995 parole consideration.

During this interview, Maghe’s first interview since June 12, 1992, Cantrell noted the

modification of the fifteen year sentence to seven and a half years, moved the drunk

driving conviction from the felony section to the substance review section of the report

and noted the sentence modification to one year, removed the military discharge

information from the report, and made changes to the section recounting Maghe’s version

of the murder offense. These changes were incorporated into the 1995 report. On

June 14, 1995, the 1992, 1993, and 1994 reports, which contained the alleged errors, were

removed from Maghe’s files. The next day, after reviewing the 1995 report prepared by

Cantrell, the parole board voted unanimously to deny Maghe parole.


                                            -5-
                                       II. Discussion

       Maghe claims that the Due Process Clause prohibits the parole board’s use of false

information in considering his application for parole, and requires Oklahoma to provide a

process for correcting false information in an inmate’s parole file. It is “well-settled that

the Due Process Clause shields from arbitrary or capricious deprivation those facets of a

convicted criminal’s existence that qualify as ‘liberty interests.’” Harper v. Young, 64

F.3d 563, 563 (10th Cir. 1995), cert. granted, 116 S. Ct. 1846 (U.S. May, 28, 1996) (No.

95-1598). “The identification of the liberty interests that are protected by the Due Process

Clause is a question of federal constitutional law that we review de novo.” Id. at 566.

       Since 1979, an inmate’s claim to due process in the parole context has been

governed by Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442

U.S. 1 (1979). In Greenholtz, the Court concluded there is “no constitutional or inherent

right of a convicted person to be conditionally released before the expiration of a valid

sentence” and, thus, “there simply is no constitutional guarantee that all executive

decisionmaking must comply with standards that assure error-free determinations.” Id. at

7; accord Board of Pardons v. Allen, 482 U.S. 369, 373 (1987); Connecticut Bd. of

Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (relying on Greenholtz in concluding that

inmate has no “constitutional or inherent right” to commutation of prison sentence). The

Court further held that a discretionary state parole system which “holds out the possibility

of parole provides no more than a mere hope that the benefit will be obtained” and,


                                             -6-
accordingly, does not implicate the protections of due process. Greenholtz, 442 U.S. at

10; accord Dumschat, 452 U.S. at 465; Jago v. Van Curen, 454 U.S. 14, 21 (1981).

       However, the Court determined that a liberty interest in parole is created when

state law provides an expectancy of parole by limiting official discretion to deny parole.

Greenholtz, 442 U.S. at 12. The Court found that Nebraska’s parole system, which

required the parole board to release an inmate unless one of four designated reasons was

found to exist, sufficiently limited official discretion such that an inmate could expect

release according to the parole scheme and was “entitled to some measure of

constitutional protection.” Id. The Court then concluded that the Nebraska procedure,

which afforded the inmate an opportunity to be heard and, if parole was denied, informed

the inmate why he did not qualify for parole, comported with due process.

       Subsequent to Greenholtz the Supreme Court has considered other statutory

schemes which afforded state parole boards discretion to grant parole under certain

circumstances but did not require them to do so, and the Court held that such parole

systems did not establish a liberty interest in parole implicating the protections of due

process. See Jago, 454 U.S. at 14 (inmate had no right to hearing before parole board

rescinded its decision to grant parole because inmate had no liberty interest in Ohio parole

system which gave officials discretion in granting parole); Dumschat, 452 U.S. at 465

(inmates had no liberty interest in commutation because board had discretion in granting

commutation); cf. Allen, 482 U.S. at 376 (inmates had liberty interest in parole based on


                                            -7-
Montana statute which required parole board to release inmate if certain standards were

met).

        Applying the Greenholtz test, we, as well as Oklahoma, have held that Oklahoma’s

parole system does not create a liberty interest entitling an inmate to due process

protections. Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979); Phillips v.

Williams, 608 P.2d 1131, 1132 (Okla. 1980) (decision after remand from the United

States Supreme Court to consider in light of Greenholtz); Kelly v. Oklahoma Pardon &

Parole Bd., 637 P.2d 858, 858-59 (Okla. Crim. App. 1981).1 Maghe does not claim that

the Oklahoma parole system has been modified since Shirley such that it is no longer a

discretionary system under Greenholtz. Because Maghe has no liberty interest in

obtaining parole under the discretionary Oklahoma parole system, he may not invoke

section 1983 as a basis for challenging the validity of information considered by the


        1
         It is not clear what, if any, impact Sandin v. Conner, __ U.S.__, 115 S. Ct. 2293
(1995), will have on the traditional Greenholtz analysis for evaluating inmate claims to
due process relating to parole consideration and determinations. At least two circuits
have determined that Sandin has no effect on parole cases. See Ellis v. District of
Columbia, 84 F.3d 1413, 1417-18 (D.C. Cir. 1996) (discussing Sandin and concluding
that Greenholtz applies until expressly overturned by the Court); Orellana v. Kyle, 65
F.3d 29, 32 (5th Cir. 1995) (holding that while potential for parole in some circumstances
may be an incident of prison life qualifying as a liberty interest under Sandin because it
affects the duration of confinement, inmate did not have a claim to due process under the
Texas parole system because under the Greenholtz analysis the state did not confer a
liberty interest in parole), cert. denied, 116 S. Ct. 736 (1996). In any event, because
Sandin “markedly narrowed the ranges of circumstances that will give rise to state-
created liberty interest,” Harper, 64 F.3d at 564, we are convinced that Sandin cannot be
interpreted to expand an inmate’s entitlement to due process in the parole context any
more than the Greenholtz test affords.

                                            -8-
parole board or the adequacy of the process or lack of process for correcting the

information. See Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (even though inmate

complained that information relied on by parole board was “admittedly false,” court held

because inmate has “no liberty interest in obtaining parole . . ., he cannot complain of the

constitutionality of procedural devices attendant to parole decisions”); see also Malek v.

Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (The “Utah parole statute does not create a

liberty interest . . . and thus cannot be used as a basis for relief under § 1983.”); Shirley,

603 F.2d at 807 (“In the absence of such liberty interest [in parole], the specific due

process procedures requested by the appellants are not applicable.”). But see Monroe v.

Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991) (holding although Alabama parole statute

did not confer a liberty interest in parole, parole board did not have “discretion to rely

upon false information in determining whether to grant parole” and to do so violated due

process).2




       2
        Monroe is distinguishable from this case in any event because the record there
revealed that the parole board “specifically relied” on “admittedly false” information in
denying the inmate parole. Monroe, 932 F.2d at 1441-43. In the present case, there is no
evidence that the parole board relied on the allegedly false information in denying Maghe
parole, and the prison officials have already expunged or corrected all of the information
which Maghe alleges was incorrect.

                                              -9-
                                   III. Conclusion

     For the foregoing reasons, the district court’s order granting Defendants’ second

motion for summary judgment is AFFIRMED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                        - 10 -
