United States District Court, D. Maryland
Xinis United States District Judge.
civil rights complaint was filed on October 15, 2018,
together with a Motion to Proceed in Forma Pauperis. Because
the Plaintiff appears indigent, the motion to proceed in
forma pauperis shall be granted. For the reasons that follow,
the complaint must be dismissed.
asserts that that Defendants have incorrectly construed his
sentences as imposed consecutively based on the sentencing
court's pronouncement that: “the sentences then are
two consecutive life sentences, plus 50 years consecutive to
those life sentences, all to date from September 16,
1981.” ECF No. 1 at p. 3. Plaintiff maintains that this
pronouncement means that all three sentences had begun to run
on September 16, 1981, and that the Defendants' failure
to run the sentences concurrently has resulted in a
miscalculation of his parole eligibility date. Under
Plaintiff's calculation, he should have been eligible for
parole in 1992, when Maryland prisoners serving life
sentences were more likely to be paroled and had greater
access to programs such as work-release and family leave.
Id. Because the Department of Public Safety and
Correctional Services (DPSCS) construed Plaintiff's
sentences to be a consecutive term of confinement of two life
sentences plus 50 years, only the first of which began on
September 16, 1981, Plaintiff was not considered for release
on parole until January 7, 2015. Id. at p. 4. As a
result, Plaintiff claims violation of his due process rights
under the Fifth, Eighth and Fourteenth Amendments of the
United States Constitution and unspecified provisions of the
Maryland Constitution. Plaintiff also asserts the common law
claim of intentional infliction of emotional distress.
Plaintiff notes, he previously filed a Petition for Writ of
Habeas Corpus with this Court in which he raised
substantially similar claims regarding the construction of
his term of confinement. See King-Ivor v. DPSCS,
Civil Action No. PX-17-3103 (D. Md.). That petition was
dismissed on July 23, 2018. The Court determined that
Plaintiff's claims rested solely on matters of Maryland
state law and did not implicate a federal constitutional
question; that no protected liberty interest attached to the
failure to provide a timely parole consideration hearing; and
no equal protection claim could be sustained.
Plaintiff's new claims do not fare any better because, at
base, they do not implicate a constitutional deprivation. It
bears repeating that no constitutional or inherent right
exists for a “convicted person to be conditionally
released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Nebraska Penal and Corr.
Complex, 442 U.S. 1, 7 (1979), see also Meachum v.
Fano, 427 U.S. 215, 224 (1976) (valid conviction
constitutionally deprives criminal defendant of liberty).
This analysis has been applied in the context of Maryland
parole decisions. McLaughlin-Cox v. Md. Parole
Com'n, 24 A.3d 235, 237-8 (Md.App. 2011) (both the
Fifth and Fourteenth Amendment require a legally cognizable
liberty interest, not present with parole consideration,
before due process protections are mandated), Lomax v.
Warden, Md. Corr. Training Ctr, 707 A.2d 395, 401
(Md.App. 1998) (inmate serving life sentence did not have
protected liberty interest in meaningful parole
consideration). Thus, even assuming that Plaintiff is
correct, and his “consecutive” sentences should
have started on the same date, he has still not stated a
claim based on the delay in his parole consideration.
Further, he has not been denied due process because he was
not considered or placed into programs such as work-release.
See Meachum, 427 U.S. at 224, see also Sandin v.
Conner, 515 U.S. 472, 493 (1995), (requiring an atypical
and significant hardship as prerequisite to creation of a
constitutionally protected liberty interest).
Plaintiff stated a sufficient cause of action for intentional
infliction of emotional distress. Putting to the side
questions of immunity against suit, the claim as stated does
not aver conduct “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Batson v.
Schiflett, 325 Md. 684, 733-34 (1992). (quoting
Harris v. Jones, 281 Md. 560, 567 (1977)). King-Ivor
does not dispute that the life sentences and fifty year
sentence were validly imposed; he rather takes issue with
when he should first have been considered for parole. The
claim thus fails.
separate Order dismissing the complaint for failure to state
a claim follows. A dismissal for failure to state a claim
qualifies as a dismissal under 28 U.S.C. §1915(g), which
provides that a prisoner litigant will not be granted in
forma pauperis status if he has “on 3 or more
prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent