Campbell v. Montana State Bd. of Pardons, 470 F. Supp. 1301 (D. Mont. 1979)

*1302 Patrick James Campbell, pro se.

Mike Greely, Atty. Gen., State of Montana, Helena, Mont., for defendant.

RUSSELL E. SMITH, District Judge.

The petition for leave to appear in forma pauperis is denied on the ground that the petition is frivolous. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, ___ U.S. ___, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Supreme Court held that, unless a parole statute creates a legitimate entitlement to parole, there is no requirement of due process protection. A mere hope is insufficient. The language of the Montana statute^[1] does not in my opinion create an entitlement. Whether or not parole is granted is dependent entirely on the discretion of the parole board.

[1] "Subject to the following restrictions, the board shall release on parole by appropriate order any person confined in the Montana state prison, except persons under sentence of death and persons serving sentences imposed under XX-XX-XXX(2), when in its opinion there is reasonable probability that the prisoner can be released without detriment to himself or to the community." Mont. Code Ann. § 46-23-201(1) (1978).