Deckert v. Lang

KALOKATHIS, District Judge. This appeal is from the order granting summary judgment in favor of the defendants in a 42 U.S.C. § 1983 claim. Appel — 1286 — lant, Clinton Deckert, asserts error in the finding that appellees, John Lang and Duane Shillinger, were entitled to qualified immunity when they continued to hold Dec-kert at the Wyoming State Penitentiary after a commutation order signed by the Governor was delivered. We affirm. FACTS On September 16,1985, in the Sixth Judicial District Court, Clinton Deckert was found guilty on one count of conspiracy to deliver a controlled substance and eight counts of delivery of a controlled substance, methamphetamine. On December 26, 1985, Deckert was sentenced to a term of one year to two and one-half years and fined $1,000 on Count II. On each of Counts III through X the sentence was also one year to two and one-half years and $1,000 fines. The court ordered “that the sentence in Count II shall run concurrently with the sentence in Count III, and all other sentences shall be deemed to run consecutively.” In November 1986, the Public Defender for Deckert requested the Probation and Parole Board to consider granting early parole to several prisoners, including Clinton Deckert, a twenty-three year old who had no prior convictions and faced a minimum of eight years. On or about December 2, 1986, John Lang, then Secretary of the Board of Parole, was directed by Governor Herschler to prepare and submit a commutation of Deckert’s sentence on Counts II and III. The sentences on Counts II and III ran concurrently while his other sentences ran consecutively. This order, along with a number of others, was reviewed and signed by Governor Herschler on December 5, 1986. The document was processed and mailed to the records manager of the state penitentiary and was received by Deckert shortly after December 5, 1986, according to his affidavit. That order referred to a commutation of his sentence of one (1) year to two and one-half (2¾⅞) years concurrent. THEREFORE, by the authority vested in me as the Governor of the State of Wyoming, I do hereby commute the sentence of the said Clinton Deckert (WSP No. 13986) to a term of time served and if special good time is earned and allowed his sentence to expire December 5, 1986 upon order of final discharge by the Governor. The order did not mention that Deckert was also serving consecutive terms for the remainder of his sentences. Lang submitted an affidavit in support of his motion for summary judgment. Paragraph 7 stated: [0]n or about December 11,1986, it came to my attention that the commutation issued to Clinton Deckert could be read to state that all sentences, including both the concurrent and consecutive sentences imposed upon Clinton Deckert, were being commuted to time served. That affidavit expressed Lang’s belief that Governor Herschler’s intention was to commute the concurrent sentences of Counts II and III only, with the remaining consecutive sentences to be served. Lang’s affidavit referred to his request that the state penitentiary records manager retrieve the commutation previously issued to Deckert “to alter said commutation to reflect what I believed to be Governor Herschler’s intention that only Counts II and III of Clinton Deckert’s sentences be commuted to time served.” Lang received notice on January 30, 1987, that Clinton Deckert refused to return his commutation documents. Dec-kert was not released at that time. Duane Shillinger, the warden of the penitentiary, submitted an affidavit in support of his motion for summary judgment. He stated: When the original commutation document was received, the penitentiary was immediately notified by John Lang, Parole and Probation Department, that an error existed on the original commutation document. The penitentiary was instructed to retrieve the document and to advise Mr. Deckert that an amended commutation document would be issued. Shillinger’s affidavit continues: — 1287 — That on or about December 15, 1986, an amended commutation document was received from the Wyoming Probation and Parole Department. The amended document, again dated December 5, 1986, and signed by Governor Herschler stated that “... a commutation of his sentence of one (1) year to two and one-half (2½) years concurrent (Counts II and III) ... hereby commute ... to a term of time served (Counts II and III)[.]” The warden believed he did not have authority to release an inmate unless official documents specified release, and he had been instructed “that the Governor of Wyoming would sign an amended commutation document.” The record does not contain a document purporting to be the official amended commutation order or a copy of it. The only evidence pertaining to the amended order appears in the Shillinger affidavit as quoted above. The statement concerning the amended order stands uncontro-verted. The record is not clear about whether, when, and how an amended order came about. It is clear that Shillinger and Lang believed an amended order would issue. Based upon that belief, Deckert was not released. Confusion about the amended order was addressed in Deckert’s affidavit opposing the motion for summary judgment. He relied on exhibits, including copies of letters he received and affidavits from his prior hearing for a writ of habeas corpus. The affidavit incorporated by reference copies of correspondence between John Lang and former Governor Herschler. The correspondence with Governor Herschler was generated before Deckert was released by habeas corpus and after Her-schler had retired as governor.1 Deckert’s affidavit stated that after he received the original commutation, his counsel, the public defender, wrote the Board of Charities and Reform to inquire about the status of the commutation. That affidavit stated John Lang replied to Dec-kert’s counsel in a letter dated January 30, 1987: As concerns Mr. Deckert, * * * [t]he sentence provides that Count II and III run concurrently, * * * and * * * the Governor’s action was intended only to commute Counts II and III to time served with the remaining sentences (Counts IV thru X) still in effect and running consecutively. On February 24,. 1987, Lang formally requested Mr. Deckert to forward the original commutation order issued December 5, 1986, explaining that items were inadvertently omitted and needed to be inserted to clarify application of the commutation, even though it did “not effect [sic] the intent of the commutation.” Deckert responded to Lang’s request in a letter March 2, 1987, suggesting “it would be easier, and far more concise, if you would make the intended alterations on the copy of the commutation I’ve included, and return it to me. This would allow me to view the changes before they are made.” Lang acknowledged Deckert’s inquiry on March 4,1987, and attached “the commutation showing the items (in red) that need to be adjusted.” Deckert’s supplemental affidavit (in response to Shillinger’s affidavit), stated that he “never received an original commutation, signed by Ed Herschler, December 5, 1986, that had any modifications to it.” On May 5, 1987, Deckert filed a writ of habeas corpus in the Second Judicial District Court, after an improper filing in the Wyoming Supreme Court was denied. Following a hearing, Deckert was ordered discharged from the penitentiary on June 16, 1987, by District Judge Robert Hill whose Order Directing Release, stated: — 1288 — [0]n December 5, 1986, Governor Her-schler executed a commutation of the sentence against Mr. Deckert to time served. This commutation on its face operates to reduce Petitioner’s sentence to time served as of December 5, 1986. Accordingly, the State has no legal cause to detain Petitioner and hold him as a prisoner at the Wyoming State Penitentiary. Petitioner must be discharged forthwith. The present action ensued in the First Judicial District Court on December 1, 1987, when Deckert filed a complaint requesting damages and attorney fees, pursuant to 42 U.S.C. § 1983, from Lang, Shil-linger, and the State of Wyoming. Deckert alleged that he was unlawfully confined at the Wyoming State Penitentiary from December 5, 1986, when the Governor’s original commutation order was received, until his release in June 1987. He claimed deprivation of his liberty and right to due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Appellees filed a motion for summary judgment asserting the defense of qualified immunity. The motion was granted and Deckert filed this appeal June 8, 1988. DISCUSSION Deckert states the issue on appeal as follows: Did the District Court err in finding that the Defendants, Lang and Shillinger, were engaged in a discretionary function and that the rights of the Plaintiff were not clearly established, so that the Defendants were entitled to qualified immunity from liability from section 1983 civil rights laws as a matter of law? Deckert’s brief requests the court to decide: 1. Were the Defendants performing ministerial or discretionary functions in failing to release Clinton Deckert after they received the commutation of sentence[?] 2. In their failing to release Clinton Deckert, did Defendants violate the clearly established statutory or constitutional right of Clinton Deckert which they, as reasonable people involved in the functioning of prisons should have known[?] We have consistently adhered to the proposition that this court will not ordinarily develop issues other than those presented on appeal. “It should be equally clear that we do not ordinarily consider matters that have not been briefed or argued before this Court.” Bueno-Hernandez v. State, 724 P.2d 1132, 1140 (Wyo.1986). Concerning the conduct of Lang, Deckert’s brief goes no further than asserting that Lang had an absolute duty to release Dec-kert upon receipt of the original order of commutation.2 Moreover, in reviewing a summary judgment on appeal, we first consider whether or not there is a genuine issue of material fact underlying the granting of the summary judgment. If there is no issue of material fact, we then decide whether the substantive law was correctly applied by the trial court. Sutherland v. Bock, 688 P.2d 157, 158 (Wyo.1984). “[W]e review the judgment in the same light as the district court, using the same information.” Garner v. Hickman, 709 P.2d 407, 410 (Wyo.1985). When the party opposing the motion presents materials on which he intends to rely, these materials “ ‘should be as carefully tailored and professionally correct as any evidence which is admissible to the court at the time of trial.’ ” Matthews v. Wyoming Department of Agriculture, 719 P.2d 216, 221 (Wyo.1986) (quoting Lane Company v. Busch — 1289 — Development, Inc., 662 P.2d 419, 426 (Wyo.1983)). W.R.C.P. 56(e), and cases decided thereunder, hold that affidavits shall be made on personal knowledge and based on evidence about which the affiant is competent to testify. Harris v. Grizzle, 625 P.2d 747 (Wyo.1981). Accordingly, we cannot and do not consider certain correspondence executed by former Governor Herschler because it lacked sworn authentication. In addition, we will not consider what conduct Lang may have engaged in, other than that shown by the affidavits. With these principles as guides, we embark upon our discussion of the applicable legal principles in this case. Appellant Deckert claims that upon receipt of the commutation order dated December 5, 1986, Lang and Shillinger were obligated to release him or at least to hold a hearing on the matter, and their failure to do so deprived him of his liberty interest without due process of law. Lang and Shillinger do not contest the fact that a hearing was not held, but rather rely upon the defense of qualified immunity. This defense is set forth in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), as follows: We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Accordingly, this appeal presents three questions for resolution: 1. Were the actions of Lang and Shil-linger discretionary? 2. At the time of the delivery of the commutation order, did the law of Wyoming “clearly establish” liberty interest rights for Deckert? 3. Was the conduct of Lang and Shil-linger objectively reasonable? Deckert claims the duties of Lang and Shillinger in regard to the commutation order were purely ministerial, and therefore the defense of qualified immunity would not be available to them. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. However, we determine that the tasks performed by Lang and Shillinger involved an element of discretion. Both Lang and Shil-linger had a duty to protect the executive by examining the commutation order for errors or omissions. It was particularly important here, because the executive had signed the original commutation order. Corrections were suggested as soon as a problem became apparent.3 When a law does not specify the precise action an- official must take, that official retains discretionary authority. See Davis v. Scherer, 468 U.S. 183, 196 n. 14, 104 S.Ct. 3012, 3020 n. 14, 82 L.Ed.2d 139 (1984). We cannot say that, with the delivery of the commutation order, nothing remained for judgment or discretion. Lang was faced with an order of commutation which he understood did not accurately reflect the will of the executive. Whether that order ever was amended by the executive or whether the executive had the power to amend a commutation order is not the issue. The issue is whether Lang’s actions met the elements set forth above pertaining to the qualified immunity defense. Because the law never prescribed the specific procedure to be followed in regard to orders of commutation, the task of the prison officials who received such an order was not tantamount to an imperative. Oyler v. State, 618 P.2d 1042, 1048-49 (Wyo.1980). Nor did the law prescribe a fixed or ascertainable standard concerning the procedure to be followed by the prison officials. Nietert v. Overby, 816 F.2d 1464, 1467 (10th Cir.1987). We cannot say that the law unambiguously precluded Lang from withholding execution of the commutation order while he sought to obtain a clarification of its ambiguity. Therefore, we cannot agree — 1290 — with Deckert that the responsibilities of Lang and Shillinger were purely ministerial. Thus, Lang and Shillinger have surmounted the threshold barrier to the availability of the defense of qualified immunity. We hold their actions were discretionary. Concerning the second issue, Harlow states that: “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” 457 U.S. at 818-19, 102 S.Ct. at 2738.4 Wyoming law is rather skimpy concerning the effect of a commutation order. The Wyoming Constitution empowers the governor “to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment.” Wyo. Const. art. 4, § 5. Case law holds this power to be exclusive. Stanton v. State, 686 P.2d 587, 588-89 (Wyo.1984); Kennedy v. State, 595 P.2d 577, 578 (Wyo.1979); State ex rel. Chatterton v. Grant, 12 Wyo. 1, 73 P. 470, 471 (1903); In re Moore, 4 Wyo. 98, 31 P. 980, 981-82 (1893). We have been unable to uncover any Wyoming statutes or cases which outline the method of granting a commutation or its legal effect; nor has Deckert in his brief provided any such authority. To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), quoted in Garrett v. Rader, 831 F.2d 202, 204 (10th Cir.1987). With regard to this second question, Deckert argues that general legal principles are implicated which Lang and Shillinger should have understood and applied. However, Deckert cites no general legal principles dealing with the specific procedure which a prison official is bound to follow under the circumstances present here. Instead, Deckert refers to a “universal rule in the interpretation of pardons” as being an act of grace and, therefore, any limitation upon its operation should be strictly construed. 59 Am. Jur.2d, Pardon and Parole § 44 at 38 (1987). In addition, Deckert refers to another rule to the effect that if a pardon is obtained by fraud, the resolution of such a matter involves issues of fact which should be decided by a judicial tribunal. Ex parte Bess, 152 S.C. 410, 150 S.E. 54 (1929). These general principles do not define the contours of Deckert’s liberty interest rights with sufficient clarity so that Lang and Shillinger, as measured by an objective standard of reasonableness, should have understood that the continued detention of Deckert violated any of his rights.5 This is particularly true because of their belief that the commutation order contained a clerical error. We note that Tate v. Alexander, 527 F.Supp. 796 (M.D.Tenn.1981),6 demonstrates a view which supports Lang and Shillinger. While we do not ground our decision on this opinion, we note that the defense of qualified immunity was made available to Governor Alexander when he rescinded former Governor Blanton’s commutation order and ordered state officials not to release the plaintiff. Several inmates in Tennessee obtained habeas corpus relief in state courts. Id. at 798-99. — 1291 — Since the law of Wyoming, and for that matter the general law, contains no well-developed legal principles defining the obligations or procedures to be followed by prison officials in matters involving commutations, we hold that Deckert had no clearly established rights which were violated. We also hold that, in view of the record, Lang and Shillinger could not have originally known, by application of the objectively reasonable standard, what the law required of them. Consequently, they are both entitled to the defense of qualified immunity, and the district court properly granted summary judgment in their behalf. Affirmed. Footnotes [1] Such materials do not meet the requirements of W.R.C.P. 56(e): Form of affidavits; further testimony; defense required. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. [Emphasis added.] [2] The essence of Deckert’s theory is expressed in his brief as follows: Just as when an official receives an order from the court, when the Appellees received the commutation signed by Governor Her-schler and delivered to them, their’s was not to question how the order was to be put into effect, but to act on the order no matter whether the commutation was clear on its face, as was found by the District Court in the hab[ea]s corpus hearing, or it was ambiguous as will be discussed later. [3] The Second Judicial District Court granted a writ of habeas corpus directing release of Dec-kert long' after the delivery of the commutation order. The habeas corpus order was silent on the questions presented here and did not discuss the nature of any rights vested in Deckert at the time of delivery of a commutation order. [4] Without reiterating the general standard concerning summary judgment, we note that in cases of this nature Harlow observed: "On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.” 457 U.S. at 818, 102 S.Ct. at 2738. [5] We make this statement by strictly adhering to the record presented to the district court at summary judgment. While there may have arisen a set of conditions which would have compelled us to conclude that Lang should have known that he was violating Deckert's rights, we would, by necessity, be relying upon materials which would not meet the requirements of W.R. C.P. 56(e). [6] Affirmed in part and reversed in part on other grounds sub nom, Alexander v. Alexander, 706 F.2d 751 (6th Cir.1983); on remand, 573 F.Supp. 373 (M.D.Tenn.1983), and affirmed 751 F.2d 384 (6th Cir.1984) (unpublished opinion).