United States Court of Appeals,

Eleventh Circuit.

No. 94-8520.

Charles A. O'KELLEY, Plaintiff-Appellee,

v.

Wayne SNOW, Jr., Chairman, James T. Morris, Bettye O. Hutchings,

David C. Evans, Timothy E. Jones, Members, Georgia State Board of

Pardons & Paroles, Defendants-Appellants.

May 25, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:90-CV-2822-JOF), J. Owen Forrester,

Judge.

Before DUBINA and BLACK, Circuit Judges, and MORGAN, Senior Circuit

Judge.

PER CURIAM:

Defendants/appellants, members of the Georgia State Board of

Pardons and Paroles ("the Board"), appeal the district court's

judgment entered in favor of plaintiff/appellee Charles A. O'Kelley

("O'Kelley") in this prisoner civil rights action.

We reverse and render judgment for the Board.

I. STATEMENT OF THE CASE

A. Facts

On February 28, 1990, the Board issued a parole decision to

O'Kelley, a Georgia state prison inmate. At that time, O'Kelley

had a total parole success likelihood score of 7, crime severity

level of I or II, and 12 months recommended to serve from the

Parole Decision Guidelines. The Board, however, determined that

the crime severity level and/or the parole success factors did not

adequately reflect the true nature of O'Kelley's case and instead

set a tentative parole date of August 1994. The Board explained
 1

At trial, the Board presented evidence showing, contrary to

O'Kelley's assertion in his complaint, that O'Kelley had

committed several probation and parole violations, including the

commission of criminal trespass, cruelty to children, and simple

battery while on parole. 

that Factor D [Parole or Probation Failure] did not fully reflect

the seriousness of O'Kelley's prior probation and parole failures.

On December 3, 1990, the Board issued a second parole decision

regarding O'Kelley. O'Kelley's total parole success score remained

the same, but his crime severity level was increased to Level V,

and the recommended months to serve increased to 40. Again, the

reason given by the Board was that Factor D did not fully reflect

the seriousness of O'Kelley's prior probation and parole failures.

B. Procedural History

O'Kelley filed a pro se 42 U.S.C. § 1983 action alleging that

the Board violated his constitutional rights in departing from the

recommendation from the Parole Decision Guidelines System.

Specifically, O'Kelley's complaint alleged that the Board: (1)

failed to use legislatively-mandated criteria in determining his

reparole eligibility; (2) failed to explain adequately the

specific reason for its actions; (3) abused its discretion by

acting outside of its authority and outside the statutorily set

limits for administrative parole violations sanctions; and (4)

deprived O'Kelley of his liberty without due process of law.

O'Kelley sought declaratory and injunctive relief "to prevent

defendants' further irreparable injury to the plaintiff with their

arbitrary and [capricious] decision making." In addition, O'Kelley

stated in his complaint that he had never violated probation or

parole prior to this parole revocation.1
 2

The court discussed with O'Kelley's attorney what relief

O'Kelley wanted:

THE COURT: What do you want me to do today, just make

them say why [the Board did not adhere to the

Guidelines]?

MR. JONES: Yes, sir.

THE COURT: What Mr. Jones wants right now is he ...

wants to know ... what did the parole board know about

pardons and parole failures at the time it made the

decision not to grant parole.

District Court's Order at 2 (quoting Trial Transcript, p. 14

The district court appointed counsel to represent O'Kelley.

Subsequently, the Board filed a motion to dismiss contending that

O'Kelley had no procedural due process interest in parole, that his

claim that his parole file contained false information failed to

state a claim, and that he was not entitled to a more specific

explanation concerning the Board's action. The district court

denied the Board's motion to dismiss and the action proceeded to a

bench trial.

According to the proposed pretrial order submitted by the

parties, the issue to be tried was "[w]hether the State Board of

Pardons and Paroles' decision to depart from the Parole Decisions

Guidelines—the Grid—violates the Plaintiff prisoner's right to due

process under the Fourteenth Amendment." On the date of trial, the

court held a pretrial conference with the attorneys for the parties

in order to focus on the issues to be tried. Specifically, the

court stated in its order "[i]t became clear to the court that

Plaintiff was seeking only the reasons for the Board's decision to

vary from the tentative parole date set by the Board's guidelines."

District Court's order at 2.2
and 35). 

During the trial, the Board admitted into evidence a summary

chart of some exhibits containing information concerning probation

and parole incidents and convictions which were considered by the

Board at the time parole was denied. The court verified that if

O'Kelley submitted any comments based on the chart or the

information contained therein, it would be deemed to be pertinent

information and would be read and considered by the Board. The

court then stated:

[I]t seems to the court that the relief that Mr. O'Kelley

seeks at this stage is complete and has been achieved, and

there is no purpose further to the action at this stage.

Accordingly, it will be dismissed—well, it will be concluded

with, technically, a judgment entered in favor of Mr.

O'Kelley. I guess technically that is correct, in that he has

achieved what he sought on the date of trial.

Trial Transcript at 40-41.

The court then proceeded to enter judgment in favor of

O'Kelley and against the Board. The Board filed a motion to amend

the findings and amend the judgment, arguing that its demonstration

of O'Kelley's misrepresentations in his complaint when he claimed

he had no prior parole or probation violations, did not entitle

O'Kelley to a judgment in his favor. The district court denied the

Board's motion and then awarded O'Kelley's counsel attorneys' fees

in the amount of $1,346.18. The Board then perfected this appeal.

II. ISSUES

The issues presented on appeal are (1) whether the district

court erred in entering judgment for O'Kelley; and (2) whether

O'Kelley's "victory" was merely technical, such that he is not

entitled to an award of attorneys' fees.
 3

At the time the district court entered its judgment in this

case, it did not have the benefit of our en banc decision in

Sultenfuss. 

III. STANDARD OF REVIEW

A district court's findings of fact in actions tried without

a jury may not be reversed unless clearly erroneous. Fed.R.Civ.P.

52(a). "This court may correct errors of law or findings of fact

based on "misconceptions of the law,' " Worthington v. United

States, 21 F.3d 399, 400 (11th Cir.1994) (citation omitted), and we

review the district court's conclusions of law de novo. Id.

 This court reviews an award of attorneys' fees for an abuse

of discretion, but "closely scrutinizes questions of law decided by

the district court in reaching the fee award." Hollis v. Roberts,

984 F.2d 1159, 1160 (11th Cir.1993) (citation omitted).

IV. ANALYSIS

 The Board argues that the district court erred in granting

judgment for O'Kelley because Georgia law creates no liberty

interest in parole. Accordingly, the Board contends that O'Kelley

is not entitled to procedural due process protections in the parole

consideration system.

We recently decided that the Georgia parole system does not

create a constitutionally protected liberty interest in parole.

Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir.1994) (en banc), cert.

denied, --- U.S. ----, 115 S.Ct. 1254, 131 L.Ed.2d 134 (1995). 3

Moreover, "[u]nless there is a liberty interest in parole, the

procedures followed in making the parole determination are not

required to comport with standards of fundamental fairness."

Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940,
942 (11th Cir.1982) (citation omitted). Thus, it is now clear that

there is no constitutional basis for O'Kelley's due process claim.

O'Kelley responds that the liberty interest in parole "was not

the basis of the district court's decision." Appellee's Brief at

8. Instead, O'Kelley argues that the Board "came to trial and

presented evidence of what those prior parole and probation

failures were," and, accordingly, "O'Kelley obtained some of the

relief which he had sought for so long." Id. at 9-10. According

to O'Kelley, therefore, the district court's entry of judgment in

his favor was proper. Indeed, the district court, in its order

denying the Board's motion to amend the judgment, enumerated two

reasons why the Board's argument against granting judgment for

O'Kelley must fail: (1) because O'Kelley "prevailed on the relief

which his attorney said he was seeking on the day of trial;" and

(2) because the Board did not object when the court announced that

for technical reasons, judgment would be entered in favor of

O'Kelley. District Court's Order at 3.

The problem with the district court's order is that the court

made no finding of a federal constitutional violation, which is a

threshold requirement for a § 1983 action. Moreover, the court

made no factual or legal findings in O'Kelley's favor at all.

Rather, because the Board presented some evidence to document that

O'Kelley had lied in his complaint and actually had numerous parole

violations, he was granted a "technical" judgment because his

attorney stated that all he wanted was to know the reasons for the

Board's parole decision. As noted above, O'Kelley had no

constitutional right to procedural due process protections, and,
 4

Because O'Kelley is no longer a prevailing party in this

cause, we also vacate the district court's award of attorneys'

fees. 

therefore, he had no right to an explanation for departure from the

parole guidelines. There is no procedural due process requirement

that obligates the Board to explain why it did not adhere to the

Parole Decision Guidelines, and the mere fact that the Board

provided evidence to support its decision does not mean that

O'Kelley has succeeded on his constitutional claim. Indeed,

O'Kelley has no constitutional claim. Accordingly, we reverse the

judgment of the district court and render judgment in favor of the

Board.4

REVERSED and RENDERED.

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