by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit ruled that, because Tennessee’s parole statutes created no liberty interest in parole, prisoner Michael Hester could not state a claim of violation of his right to due process even though he was held in prison beyond the date that the Tennessee Parole Board (“Board”) had ordered his release on parole.

Hester was sentenced in Madison County to a 10-year prison term in 2016 and later paroled; when he picked up new charges in Chester County in 2019, his parole was revoked, leaving him with an aggregate sentence of 16 years with a sentence expiration date of January 27, 2033. The sentence included a concurrent term of 11 months and 29 days for misdemeanors committed in Chester County. Hester was remanded to the custody of the Tennessee Department of Corrections. In due course of time, he became parole eligible. The Board granted Hester parole and ordered him released on parole effective February 15, 2023. But on the day before Hester’s scheduled release, Chester County Sheriff Blair Weaver, Deputy Sheriff Mark Griffin, and Jail Administrator Brian Stout (“Defendants”) “took it upon themselves” to lodge a detainer against Hester to prevent his release.

The Defendants “falsely asserted” that Hester had not served his sentence and that “he was required to serve another 11 months and 29 days at the Chester County Jail.” Hester was able to get the detainer removed only after employing counsel. The detainer was not lifted until May 10, 2023, which was 84 days beyond the Board’s ordered release date. In February 2024, Hester sued, among others, the above Defendants. He alleged, inter alia, that the Defendants violated his Fourteenth Amendment rights. The Defendants moved to dismiss on grounds of qualified immunity.

The district court reasoned that since Hester did not have a liberty interest in release on parole, the Defendants were entitled to qualified immunity. The district court also concluded that Hester had failed to state a claim. The district court granted the Defendants’ motion to dismiss and Hester appealed.

The Sixth Circuit observed, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” See: West v. Atkins, 487 U.S. 42 (1988). “The Fourteenth Amendment’s Due Process Clause prohibits state actors from depriving ‘any person of life, liberty, or property, without due process of law.’ To establish a violation of the due process clause, Hester must show that: (1) he had a protected interest, (2) he was deprived of that interest, and (3) the state did not afford him adequate process before the deprivation.” See: EJS Props., LLC v. City of Toledo, 698 F.3d 845 (6th Cir. 2012).

The Defendants asserted qualified immunity, which protects “government officials performing discretionary functions … from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See: Harlow v. Fitzgerald, 457 U.S. 800 (1982). Overcoming a claim of qualified immunity requires the plaintiff to show that: “(1) [Defendants] violated a federal statutory right, and (2) the unlawfulness of [Defendants’] conduct was clearly established at the time,” per Crawford v. Tilley, 15 F.4th 752 (6th Cir. 2021). “A right is clearly established when every reasonable official would understand that his conduct violates that right.”

The Sixth Circuit had consistently held that there was no liberty interest in parole under Tennessee law and had recently reiterated in Thomas v. Montgomery, 140 F.4th 335 (6th Cir. 2025) that “inmates in Tennessee do not have a constitutionally recognized expectation of receiving parole because the statutory scheme does not efficiently constrain the Board’s discretion to deny parole.” A “mere unilateral hope or expectation of release on parole” does not create a protected liberty interest; the person “must, instead, have a legitimate claim of entitlement to it.” See: Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233 (6th Cir. 1991).

In the instant case, Hester acknowledged that a prisoner could claim a constitutional right to a grant of parole only if state law created a specific entitlement to it. And Hester “rightly recognized that the Tennessee parole scheme creates no such entitlement.” However, the thrust of Hester’s argument was that “once the Tennessee Board of Parole grants parole, so long as it does not revoke that grant, an inmate has a legitimate claim of entitlement—i.e., a liberty interest in being released on parole.” Hester argued that the Board’s Certificate of Parole (“COP”) ordering his release on parole effective February 15, 2023, which was issued pursuant to Tenn. Comp. R. & Regs. 1100-01-01-.091(1)(a), gave him “a legitimate claim of entitlement to parole.” Hester asserted that when parole is granted—in his case by way of the COP—a prisoner has a “liberty interest in remaining free.” See: Morrissey v. Brewer, 408 U.S. 471 (1972).

But the Sixth Circuit disagreed. In Morrissey, the parolee was already freed from custody and the U.S. Supreme Court determined he had a protectable interest in retaining that freedom. But Hester had not yet been released when the detainer was lodged.

The Court opined that Hester’s argument was “difficult to square” with Jago v. Van Curen, 454 U.S. 14 (1981) and Inmates of Orient. In Jago, the prisoner plaintiff alleged a due process violation after his parole was rescinded without a hearing. The U.S Supreme Court “held that the inmate was not entitled to a hearing before his parole was rescinded because Ohio law created no liberty interest in parole.” And in Inmates of Orient, prisoners “who had received favorable parole decisions after having a full hearing argued that their due process rights were violated when their ‘on or after dates’ for release were later rescinded without a hearing.”

The Court in that case affirmed the district court’s denial of the prisoners’ claims because the prisoners had “no constitutionally protected liberty interest in being released at a time related to [their] on or after dates” under Ohio law. Id. Because the Inmates of Orient had “no legitimate claim of entitlement to parole before the expiration of a valid sentence of imprisonment,” the rescission of an “on or after date” for parole release was not a protected liberty interest.

The Court concluded that the COP in the instant case conferred no liberty interest for the same reason. The Court also rejected Hester’s “over detention” argument. The Court observed “[w]hen an inmate’s sentence expires, the state loses its power to hold him, and continued detention can violate his right to due process under the Fourteenth Amendment.” See: McNeil v. Dir., Patuxent Inst., 407 U.S. 245 (1972). But Hester’s sentence had not expired.

The Court concluded that Hester had “failed to show that he had a protected liberty interest that was clearly established at the time of his delayed release.” Accordingly, the Court affirmed the judgment of the district court. See: Hester v. Chester Cnty., 162 F.4th 780 (6th Cir. 2025).  

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