United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge John K.
Larkins, III's Final Report and Recommendation 
(“R&R”), recommending that this action be
dismissed. Also before the Court are Plaintiff Alfredo
Mendoza's (“Plaintiff”) Objections , 
to the R&R, Plaintiff's Motion to Appoint Counsel
, and Plaintiff's Motion for Judicial Action .
February 28, 2011, Plaintiff Alfredo Mendoza
(“Plaintiff”) was convicted of possessing
methamphetamine, and sentenced to fifteen years in prison.
( at 10-11). The Georgia Parole Guidelines System (the
“Guidelines”) recommended that Plaintiff be
granted parole after serving five years of his sentence. (
at 11). The Georgia Board of Pardons and Paroles (the
“Parole Board”) determined, however, that
Plaintiff should not be granted parole until he serves
approximately ten years of his sentence. ( at 11). The
Parole Board found that “the circumstances of
[Plaintiff's] crime call for more time in prison than
recommended by the guidelines system.” ( at 11).
3, 2016, Plaintiff filed his Complaint , asserting a
Fourteenth Amendment Due Process claim under 42 U.S.C. §
1983. Plaintiff argues that the Parole Board's departure
from the Guidelines violated his Fourteenth Amendment
“property interest” in the “meaningful
use” of the Guidelines. ( at 7). On May 18, 2016,
the Magistrate Judge screened Plaintiff's Complaint and
issued his R&R, recommending that this action be
dismissed because Plaintiff lacks a constitutionally
protected interest in parole under the
Guidelines. On June 20, 2016, Plaintiff filed his
Objections to the R&R, generally disputing the Magistrate
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report
and recommendation, the Court conducts only a plain error
review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam). In view of
Plaintiff's Objections, the Court conducts a de
novo review of the record.
law provides that “[t]he guidelines system shall be
used in determining parole actions on all inmates, except
those serving life sentences, who will become statutorily
eligible for parole consideration.” O.C.G.A. §
42-9-40(a). “[W]hile the legislature has required the
Board to adopt a guideline system to be used as a framework
for making more consistent parole decisions, it also
preserved the Board's authority to use its discretion in
making final parole decisions.
statute and regulations, therefore, do not mandate that
release be granted if the Guidelines criteria is met.”
Sultenfuss v. Snow, 35 F.3d 1494, 1502 (11th Cir.
1994). “Instead, the system contains a statutory
presumption against parole and an explicit reservation of
authority to depart from the grid recommendation, negating
any reasonable claim of an entitlement to parole.”
Id. The Eleventh Circuit has held that, in
light of these features of the Guidelines,
“Georgia's parole system does not create a liberty
interest in parole protected by the Due Process
Clause.” Id. at 1503; see also Huggins v.
Isenbarger, 798 F.2d 203, 205 (7th Cir. 1986)
(“[T]he definition of a liberty interest in parole or
other early release is the same as the definition of a
property interest.”). In view of this authority, and
the reasoning in it, the Court finds that the Parole
Board's departure from the Guidelines' recommendation
did not violate Plaintiff's Fourteenth Amendment due
process rights. Plaintiff's Complaint is required to be
foregoing reasons, IT IS HEREBY ORDERED that Magistrate Judge
John K. Larkins, III's Final Report ...