United States District Court, D. Maryland
JAY R. HARDING, SR., #239980 Petitioner
DAVID BLUMBERG, Parole Commission Chairman, et al. Respondents.
ELLEN LIPTON HOLLANDER, District Judge.
Pending is a hybrid petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and civil rights complaint filed by Jay Harding, Sr., in which he claims that he was denied a parole hearing in violation of his right to due process. ECF 1. Because Harding seeks release, damages for medical and emotional suffering, and damages for violations of his right to due process, the petition encompasses elements of a hybrid habeas corpus and prisoner civil rights action. See Wilkerson v. Dotson, 544 U.S. 74, 81 (2005) (recognizing habeas corpus remedies do not displace actions under 42 U.S.C. § 1983 where prevailing in the civil rights suit would not necessarily invalidate the legality of the state confinement); Muhammad v. Close, 540 U.S. 749, 751 (2004).
Respondents, David Blumberg, Yolanda Bethea, Laurie Meredith, Kerri Margroff, and the Department of Public Safety and Correctional Services ("DPSCS"), by their counsel, filed an answer requesting dismissal of the petition for failure to exhaust remedies or, alternatively, requesting denial of the petition because Harding does not have a constitutionally protected liberty interest in parole consideration. ECF 11, 12. The court deems a hearing unnecessary. See Local Rule 105.6 (Md. 2011). For reasons to follow, the petition will be denied and dismissed.
On March 6, 2012, the Honorable James L. Sherbin of the Circuit Court for Garrett County found Harding in violation of the terms of a previously imposed probation, and sentenced him to eighteen months of incarceration, beginning on February 14, 2012, for contributing to the condition of a child, a violation of Md. Code, Courts and Judicial Proceedings Article, § 3-8A-30. ECF 11-1. Harding became eligible for parole in July 2012, after serving one-fourth, or four and a half months, of his eighteen-month term. Md. Code, Correctional Services Article ("CS"), § 7-301(a).
Harding filed this petition on January 28, 2013, during the time he was an inmate at the Garrett County Detention Center. Harding claimed that he was "due a parole hearing by June 2012, " but a hearing was not held despite his many inquiries and assurances a hearing would be scheduled. ECF 1 at 4. Harding avers that he "received a letter" on January 23, 2013, from Ms. Bethea and Ms. Meredith, "stating that inmates are not entitled to a parole hearing" but he would be scheduled for one on the "next date." Id. However, he alleges that on January 24, 2013, the Parole Commission held a hearing at the jail, but his "name was not on their list." Id. Harding also states: "I am told I will not receive any advance notice so I can review the facts of my case nor will I receive the date, time, or place of a hearing as the law provides." Id. But, he does not aver that he was denied adequate notice of his hearing, which was held on February 13, 2013.
In addition, Harding states that he has Hepatitis C and claims that dealing with the uncertainty of his release placed an "overbearing" emotional toll on him, amounting to cruel and unusual punishment. ECF 1 at 4. He also claims that he has gone without medication, but does not identify the medication or allege to have suffered any injury. Id.
A Parole Commission hearing officer considered Harding for parole on February 8, 2013, and recommended approving him for parole. ECF 11-2. A parole commissioner adopted the recommendation on February 11, 2013. Id. On February 26, 2013, the Parole Commission issued an order to release Harding on parole, and he was released the same day. ECF 12-1, 12-4.
By Order dated February 28, 2013 (ECF 3), this court directed counsel for DPSCS to respond to the petition. Two days earlier, on February 26, 2013, Harding had been released from the Garrett County Detention Center. See ECF 12-1.
On January 23, 2013, prior to Harding's release on parole, Harding filed a petition for a writ of mandamus in the Circuit Court for Garrett County against Sheriff Robert Corley and David Blumberg, Chairman of the Maryland Parole Commission, to compel consideration for parole. ECF 11-5; 11-6. On February 19, 2013, the circuit court dismissed the petition. ECF 11-7. On February 28, 2013, unaware that the petition had already been dismissed, Blumberg moved to dismiss the petition as moot because Harding had been granted parole. ECF 11-8. In an order docketed on March 12, 2013, the circuit court granted Chairman Blumberg's motion to dismiss. ECF 11-5, ECF 11-9. Harding did not appeal the dismissal of his mandamus petition to the Maryland Court of Special Appeals. ECF 11-5.
Following Harding's release, Harding failed to notify this court of his new address. On April 8, 2013, respondents moved to dismiss the petition, or in the alternative, to extend the time for filing a response. ECF 5. By Order dated April 19, 2013, this court granted respondents' motion to dismiss, without prejudice, based on Harding's failure to comply with Local Rule 102.1.iii.
Harding subsequently provided his current address to the court, in correspondence filed on May 1, 2013, explaining that he had provided his address to the DPSCS. ECF 9. By Order dated May 8, 2013 (ECF 10), the court treated the correspondence as a motion for reconsideration, granted the motion, and directed respondents to respond.
I. Exhaustion of ...