Donald L. Jackson v. Robert E. Carter

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 8, 2021*
Decided November 9, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1711
DONALD L. JACKSON,
Plaintiff-Appellant,
v.
ROBERT E. CARTER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:20-cv-02493-TWP-DML
Tanya Walton Pratt,
Chief Judge.
O R D E R
Donald Jackson, an Indiana prisoner, submitted two petitions seeking his
freedom under the clemency power granted to the Governor by the Constitution of
Indiana. His prison’s warden summarily recommended denial of the first petition, and
Jackson submitted a second petition in March 2020, which the prison has yet to send to
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 3 --

No. 21-1711 Page 2
the Indiana Parole Board for review. Jackson filed a lawsuit under 42 U.S.C. § 1983,
arguing that prison officials violated his federal due-process rights by denying him
access to the clemency process. The district court dismissed the complaint at screening,
concluding that Jackson lacks a protected interest under the Due Process Clause
because there is no entitlement to clemency. Because Jackson indeed lacks a substantive
interest that the federal Constitution protects, we affirm.
For purposes of this appeal, we take as true all well-pleaded facts alleged by
Jackson. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). Jackson first submitted a
clemency petition to prison officials in 2019. After seven months of attempting to
determine the status of his petition, Jackson learned that the warden had denied it
within a few weeks—despite an Indiana Department of Correction policy requiring the
warden to forward petitions to the Parole Board (which, in turn makes a
recommendation to the Governor). Jackson spent an additional six months fruitlessly
corresponding with prison officials as he attempted to determine why his petition had
not been sent to the Parole Board as required. Ultimately, he was told that he could
reapply for clemency. Two prison officials assisted Jackson in preparing and submitting
a second clemency petition in March 2020, but the prison has yet to confirm sending the
petition to the Parole Board.
Jackson sued eight prison officials, the Commissioner of the Indiana Department
of Correction, and the company that operates his prison under 42 U.S.C. § 1983. Among
other claims, he alleged that the defendants were deliberately indifferent to his First and
Fourteenth Amendment rights by depriving him of access to the clemency process, and
that the warden violated those rights by unilaterally denying his first clemency petition
without the authority to do so.
The district court screened the complaint under 28 U.S.C. § 1915A and
determined that it failed to state a claim upon which relief could be granted. As relevant
here, the court dismissed Jackson’s claim that prison staff violated his right to due
process. It concluded that Jackson lacked “a due process right to file a clemency
petition,” because he had no expectation of receiving clemency.
Before entering judgment, the district court permitted Jackson an opportunity to
show cause as to why his claims should not be dismissed. Jackson contested only the
conclusion that he had no due-process right to file a clemency petition. The district
court determined that, even if Jackson had such a right, he was not deprived of it, as his
second petition was currently pending. And even if the prison had violated Department

-- 2 of 3 --

No. 21-1711 Page 3
of Correction policy in how it processed his clemency petitions, those violations would
not provide grounds for a federal claim.
On appeal, Jackson challenges the district court’s dismissal of his due-process
claim. Specifically, he contends that even if he has no protected interest in receiving a
favorable clemency decision from the Governor—and therefore could not challenge a
denial of his petition—the Due Process Clause nonetheless protects his interest in fair
access to the application process. It is beyond dispute that Indiana law creates a right to
petition for clemency and sets forth the procedural steps for applying for it. I ND C ONST.
art. 5, § 17; I ND. C ODE §§ 11-9-2-1 to -4. But that interest is not protected by the federal
Due Process Clause. See Manley v. Law, 889 F.3d 885, 890 (7th Cir. 2018) (“Procedural
due process does not protect every conceivable legal interest.”).
The Due Process Clause protects specific interests: life, liberty, and property.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 538 n.3 (1985). But it does not
convey those substantive interests: they derive from an independent source, such as state
law or public contracts. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972);
Cheli v. Taylorville Cmty. Sch. Dist., 986 F.3d 1035, 1039 (7th Cir. 2021). Only with a
“legitimate claim of entitlement” to some benefit may a plaintiff use the Due Process
Clause to challenge a deprivation. Roth, 408 U.S. at 577.
We take Jackson at his word that he is not claiming an entitlement to obtaining
clemency. (This is a wise position, because there is no such entitlement under Indiana
law, which leaves the decision to the Governor’s exclusive discretion. Misenheimer v.
State, 374 N.E.2d 523, 532 (Ind. 1978).) But that means Jackson’s only interest is in
process itself—and, as we have just said, the Due Process Clause protects against the
unlawful deprivation of a substantive interest. See Olim v. Wakinekona, 461 U.S. 238, 250
n.12 (1983). Put another way, state procedural laws do not create a liberty or property
interest protected by the Due Process Clause. Id. at 250–51; Lafayette Linear v. Vill. of
Univ. Park, 887 F.3d 842, 844 (7th Cir. 2018). What Jackson wants of us is to compel state
actors to follow the clemency procedures that Indiana law prescribes, such as requiring
the prison to forward an application to the Parole Board for a recommendation to the
Governor. But a state actor’s failure to follow state-delineated procedures does not
implicate federal due process. Wozniak v. Adesida, 932 F.3d 1008, 1011 (7th Cir. 2019).
Therefore, Jackson did not state a claim for relief under § 1983.
AFFIRMED

-- 3 of 3 --