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Sharon Burnette; Pamela K. v. Helen F. Fahey

November 15, 2012

SHARON BURNETTE; PAMELA K. BURROUGHS; FRANK CARTER, JR.; EDWARD CONQUEST; DONALD W. HOFFMAN; MONTY KING, FORMERLY KNOWN AS IMOND MONTY HICKS; LARRY MACON; MARVIN MCCLAIN; BENJAMIN PERDUE, JR.; HENRY STUMP; BARBARA TABOR, SUING ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
HELEN F. FAHEY, IN HER CAPACITY AS CHAIR OF THE VIRGINIA PAROLE BOARD; CAROL ANN SIEVERS, IN HER CAPACITY AS VICE-CHAIR OF THE VIRGINIA PAROLE BOARD; JACKIE T. STUMP, IN HIS CAPACITY AS A MEMBER OF THE VIRGINIA PAROLE BOARD; MICHAEL M. HAWES, IN HIS CAPACITY AS A MEMBER OF THE VIRGINIA PAROLE BOARD; RUDOLPH C. MCCOLLUM, JR., IN HIS CAPACITY AS A MEMBER OF THE VIRGINIA PAROLE BOARD, DEFENDANTS-APPELLEES. STEVEN WAYNE GOODMAN, AMICUS SUPPORTING APPELLANT. Þ



PUBLISHED

ORDER

Appellants have filed a petition for rehearing and rehearing en banc. Appellees have filed a response in opposition to the petition.

Judge Niemeyer and Judge Floyd voted to deny the petition for rehearing. Judge Gregory voted to grant the petition for rehearing.

A member of the court requested a poll on the petition for rehearing en banc. Judge Gregory voted to grant rehearing en banc. Chief Judge Traxler and Judges Wilkinson, Niemeyer, Motz, King, Shedd, Duncan, Agee, Davis, Keenan, Wynn, Diaz, Floyd, and Thacker voted to deny rehearing en banc.

The petition for rehearing is denied, and, because the poll on rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc is also denied. Judge Gregory filed an opinion dissenting from the denial of rehearing en banc.

Entered at the direction of Judge Floyd for the court.

For the Court /s/ Patricia S. Connor, Clerk

GREGORY, Circuit Judge, dissenting from the denial of rehearing en banc:

The Court was called upon to determine what process is due to inmates who have been granted a constitutionally protected liberty interest to be considered for parole. This Court's precedent offers unclear answers, leaving potential parolees' Due Process rights woefully unsettled. Perhaps more important, Virginia's parole system, as alleged by Appellants, is fundamentally unfair to those being considered for parole. Because this case poses a "question of exceptional importance," Fed. R. App. P. 35(a)(2), I respectfully dissent from my colleagues' decision to deny rehearing en banc.

I.

As my original dissent makes clear, this Court's precedent is ambiguous as to what process must be afforded to parole-eligible inmates. See 687 F.3d 171, 186-88 (4th Cir. 2012) (Gregory, J., dissenting). The majority's opinion further obfuscates our precedent. In Vann v. Angelone, we held "[a]t most," the parole board must furnish "a statement of its reasons for denial of parole." 73 F.3d 519, 522 (4th Cir. 1996) (quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. 1978) (en banc)). The Vann Court qualified this holding, however, by asserting "parole authorities must investigate and weigh numerous factors" in reaching their decision. Vann, 73 F.3d at 521-22 (citing Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)). And a decade before Vann, we held in Bloodgood v. Garraghty that "[t]he board's inquiry is not the legal foundation of some past conviction, but a prediction of a prisoner's prospects for a law-abiding life." 783 F.2d 470, 473 (4th Cir. 1986) (citing Franklin, 569 F.2d at 800).

Both Vann and Bloodgood clearly require the parole board to do more than issue a rote letter of denial. The majority, however, conveniently cherry-picked a sentence from Vann in concluding Appellants cannot prove a constitutional injury because "the Board provided a reason or reasons for its denial [of parole]." 687 F.3d at 182. The majority's interpretation of Vann allows the parole board to "simply print out several hundred copies of a form letter denying parole on generic grounds." 687 F.3d at 186 n.1 (Gregory, J., dissenting). The majority opinion exacerbates the tension in our case law and the Court's refusal to resolve this issue perpetuates the potential for constitutional injustice.

II.

While Iqbal and Twombly most certainly heightened the pleading requirements of Fed. R. Civ. P. 8, they did not provide the Court carte blanche to shirk its duty to resolve important constitutional questions. The majority insists Appellants do not state a plausible claim because "the statistical allegations show that the Board continues to grant parole to violent offenders . . . indicat[ing] that ...


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