(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-4792
Summary Calendar
JOHN RICHARD MERIT,
Plaintiff-Appellant,
VERSUS
BRUCE LYNN, Secretary,
Dept. of Corrections,
and KEETSIE TULLIER,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
(CA 92 0681)
( March 29, 1993 )
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
John Merit filed a § 1983 complaint seeking a Declaratory
Judgment declaring the Louisiana Parole Board's denial of his right
to participate in a "parole work release" program null and void.

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2
He also seeks injunctive relief, ordering the Parole Board to place
him immediately on parole work-release status for a two-year period
and, thereafter, to consider him for full parole status. Merit is
additionally seeking an award of compensatory and punitive damages.
The magistrate judge characterized Merit's complaint as a
habeas corpus application and recommended dismissal of the
complaint based on his failure to exhaust state court remedies.
The district court, however, determined that Merit was not
deprived of a cognizable liberty interest and dismissed the
complaint with prejudice.
OPINION
According to Merit, he was convicted of armed robbery and has
already served more than twenty years of his fifty-year sentence.
Merit attaches a copy of a letter from the Board of Pardons, dated
November 14, 1989, in which the Board recommended to the Governor
that Merit be granted eligibility for parole after serving one-
third of his sentence. Although there is no documentation in the
record that the Governor acted on the recommendation, Merit
apparently had a parole hearing on November 19, 1991.
Merit contends that the district court erred in finding that
the provisions of La. Rev. Stat. Ann. 15:574.4 (West 1992) did not
create a liberty interest in parole release. Merit argues that the
parole board abused the limited discretion delegated to it under
15:574.4 by failing to consider the factors listed in the provision
in making its determination.

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1 The additional paragraph provides that "[s]ubject to the
following restrictions, the board shall release on parole . . . any
person confined in the Montana state prison or the women's
correction center . . . when in its opinion there is reasonable
probability that the prisoner can be released without detriment to
the prisoner or to the community[.]. Mont. Code Ann. § 46-23-202
1985.
3
Merit also contends that Act 790 of the 1990 Louisiana
Legislature, which added a new subsection to the Parole Statute,
increases his expectation of parole.
There is no constitutionally protected interest in parole
release. Board of Pardons v. Allen, 482 U.S. 369, 373, 107 S. Ct
2415, 96 L. Ed. 2d 303 (1987). Nevertheless, a statute may give
rise to an expectation of parole if it uses mandatory language that
creates a presumption that parole release will be granted if
certain designated findings are made. Id. at 377-78.
La. Rev. Stat. Ann. 15:574.4(E) (West 1992) provides in part:
A parole shall be ordered only for the best
interest of society, not as an award of
clemency, and upon determination by the board
that there is a reasonable probability that
the prisoner is able and willing to fulfill
the obligations of a law-abiding citizen so
that he can be released without detriment to
the community or to himself.
Very similar language is found in the Montana statute
discussed in Allen. 482 U.S. at 376. However, the Montana statute
also contains an additional paragraph containing other mandatory
language regarding parole release.1 Allen determined that the
language of the statute created a presumption that parole release
would be granted and thus created a liberty interest protected by
the due process clause. Id. at 378-381.

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4
This Circuit has not addressed whether the Louisiana Parole
Statute (15:574.4(E)) gives rise to a due process liberty interest
in parole release. The statute contains some but not all of the
mandatory language contained in the Montana statute, which was
relied upon by Allen in finding a liberty interest.
However, we are certain that the issues raised by Merit are
sufficiently meritorious (no pun intended) that it was error for
the trial court to decide such issues sua sponte, particularly
where Merit is acting pro se and where the defendants named in his
complaint have not been served and have not appeared.
We vacate, therefore, the trial court's dismissal of this
matter and remand the case to the trial court with instructions to
a. issue process on the defendants;
b. permit Merit to amend as to any named defendants
who are no longer serving in the official
capacities as stated;
c. consider the appointment of counsel for Merit; and
d. conduct such further hearings or proceedings as may be
necessary to develop a full record as to the process and
procedures involved in the Louisiana Parole Board's
consideration of Merit's requested parole.
We have not addressed the merits of this case and nothing
herein should be deemed or construed as a ruling on the merits.

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