David S. Frederick v. Matthew J. Frank

* We granted the appellees’ motion for non-involvement due to lack of service
of process in the district court. After an examination of the appellant’s brief and the
record, we have concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2005*
Decided June 23, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1046
DAVID S. FREDERICK,
Plaintiff-Appellant,
v.
MATTHEW J. FRANK, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Western
District of Wisconsin
No. 04-C-684-C
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate David Frederick is serving consecutive sentences totaling 39
years’ imprisonment for sexual assault and battery. Frederick has served
approximately 18 years and believes that he should now be released on parole. But
the Parole Commission will not consider releasing Frederick until he completes two
treatment programs for sex offenders. Frederick claims that this requirement
denies him due process because, he says, there are over 1,000 inmates on a waiting
list for those programs and he expects to have to wait several years before he will be
allowed to begin them. Frederick sued a number of prison officials under 42 U.S.C.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 2 --

No. 05-1046 Page 2
§ 1983, seeking damages and an injunction ordering his admission into the
programs. The district court dismissed Frederick’s complaint at screening, 28
U.S.C. § 1915A, because he failed to allege that the defendants violated a
constitutionally protected right. Frederick appeals.
Frederick claims that he has a constitutionally protected liberty interest in
being considered for parole without further delay. Whether Frederick has such a
protected interest depends on the nature of Wisconsin’s procedures for granting
parole, because an inmate has a liberty interest only if the state’s statutes and
regulations create an expectation, rather than a mere hope, of early release. See
Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12 (1979);
Heidelberg v. Ill. Prisoner Review Bd., 163 F.3d 1025, 1026 (7th Cir. 1998) (per
curiam). In Wisconsin an inmate generally becomes eligible to be considered for
parole after serving one-quarter of his sentence, Wis. Stat. § 304.06(1)(b), and
typically is entitled to mandatory release after serving two-thirds of his sentence,
Wis. Stat. § 302.11(1). State ex rel. Gendrich v. Litscher, 632 N.W.2d 878, 882 &
nn.4-5 (Wis. Ct. App. 2001).
Frederick argues that the defendants’ refusal to enroll him in the required
programs effectively extends his term of imprisonment and therefore infringes on
his liberty. But the state Parole Commission has discretion to grant or deny parole
to those inmates who have served only the first quarter of their sentences, and an
inmate has no constitutionally protected liberty interest in being considered for this
discretionary release. Id. at 882. An inmate has a protected liberty interest in
parole only after he reaches his mandatory release date. See Felce v. Fiedler, 974
F.2d 1484, 1491-92 (7th Cir. 1992); Santiago v. Ware, 556 N.W.2d 356, 364 (Wis.
Ct. App. 1996). Because Frederick is not entitled under Wisconsin law to
mandatory release until he serves two-thirds of his sentence, he presently has only
a hope rather than an expectation of release, and he thus failed to allege the
infringement of a constitutionally protected right.
AFFIRMED.

-- 2 of 2 --