Kitchen v. Whitmer

106 F.4th 525

Michael Andrew KITCHEN, Plaintiff-Appellee, v. Gretchen WHITMER, Governor; Heidi E. Washington; Brian Shipman, Defendants-Appellants,Michael C. Eagen, Defendant.

No. 22-2160

United States Court of Appeals, Sixth Circuit

Argued: October 25, 2023

Decided and Filed: June 28, 2024

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cv-11430—Laurie J. Michelson, District Judge.

ARGUED: Joshua S. Smith, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Joshua L. Zeman, TROUTMAN PEPPER HAMILTON SANDERS, LLP, Southfield, Michigan, for Appellee. ON BRIEF: Zachary A. Zurek, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Joshua L. Zeman, Matthew J. Lund, TROUTMAN PEPPER HAMILTON SANDERS, LLP, Southfield, Michigan, for Appellee.

Before: WHITE, NALBANDIAN, and MURPHY, Circuit Judges.

NALBANDIAN, J., delivered the opinion of the court in which MURPHY, J., joined. WHITE, J. (pp. 544-52), delivered a separate dissenting opinion.

OPINION

NALBANDIAN, Circuit Judge.

In 1987, a Michigan state court sentenced seventeen-year-old Michael Kitchen to forty-two to sixty years in prison. Under Michigan law, Kitchen is not eligible for parole until he completes his minimum sentence. Mich. Comp. Laws § 791.234(1). This means he will not be considered for parole until he is nearly sixty. Kitchen brought a pro se § 1983 suit challenging the statute against Michigan's governor, the Department of Corrections Director, and the chair of the Parole Board. He alleges that Michigan's parole statute violates his Eighth Amendment rights because it effectively keeps him in prison for life without parole. Defendants' chief response is that Kitchen's case must be brought through habeas corpus, not § 1983. Or they argue that Kitchen's sentence satisfies the Constitution because he is not serving a life sentence. The district court sided with Kitchen. But for the reasons laid out below, we disagree with the district court and REVERSE and REMAND.

I.

A.

Following his participation in a home invasion, Plaintiff-Appellee Michael Kitchen was convicted in 1987 of armed robbery, possession of a firearm during a felony, first-degree criminal sexual conduct, and other offenses. Kitchen v. Whitmer, 616 F. Supp. 3d 683, 686 (E.D. Mich. 2022). At sentencing, the Michigan state court imposed an upward variance because this was "one of the most heinous crimes that it ha[d] presided over." Id.; R.95-2, p.8, PageID 1027. The court sentenced seventeen-year-old Kitchen to an indeterminate sentence with a minimum of forty-two years and a maximum of sixty years in prison, minus good behavior credits. Kitchen, 616 F. Supp. 3d at 686.¹

Kitchen has spent his adult life in the custody of the Michigan Department of Corrections (MDOC). Under Michigan law, a prisoner with an indeterminate sentence is "subject to the jurisdiction of the parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted, less good time and disciplinary credits, if applicable." Mich. Comp. Laws § 791.234(1). Put simply, the Parole Board cannot consider Kitchen for parole until he serves his forty-two-year minimum sentence, minus any good behavior credits. So Kitchen is not eligible for parole until 2027 when he will be nearly fifty-eight-years old. Kitchen, 616 F. Supp. 3d at 698.

B.

Kitchen filed a pro se challenge under 42 U.S.C. § 1983 in the Eastern District of Michigan in 2018. He sought a declaratory judgment holding that the Michigan parole-eligibility statute, Mich. Comp. Laws § 791.234(1), was unconstitutional as applied to him because it violated his equal-protection and substantive-due-process rights under the Fourteenth Amendment and constituted cruel and unusual punishment under the Eighth Amendment. Kitchen named Michigan's governor, the director of MDOC, and the chair of the Michigan Parole Board as defendants. He later amended his complaint to substitute Governor Whitmer as a defendant, but his substantive claims remained unchanged.

Two Defendants—the director of MDOC and the chair of the Parole Board—filed a pre-answer motion to dismiss for lack of subject-matter jurisdiction and for summary judgment. They argued that Kitchen's § 1983 claim was barred by Heck v. Humphrey, which stated that § 1983 claims are not "cognizable" if they challenge the "fact or duration" of confinement or seek "immediate or speedier release." 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). So if an inmate challenges his confinement or seeks an early release, "habeas corpus is the exclusive remedy." Id. And an attempt to bring the challenge as a § 1983 claim is Heck barred² and must be dismissed. Id. at 487, 114 S.Ct. 2364. Defendants argued that the claim is improper because Kitchen "is challenging the legality of his confinement," so the court must dismiss his case. R.15, p.8, PageID 78.

Kitchen responded that he does not seek a shorter sentence but "an examination of the Defendants' policies and procedures governing parole eligibility." R.16, p.3, PageID 91. And a "favorable judgment to Kitchen would not necessarily affect the duration of his criminal sentence because prison officials would continue to retain the discretion to grant him parole," so his claim was cognizable under § 1983. Id. at pp.5-6, PageID 93-94.

The district court agreed with Kitchen and ruled against Defendants in an opinion and order on August 16, 2019. The court concluded that, despite the "legal and factual support" for Defendants' position, "Kitchen is not required to bring his federal constitutional claims via a petition for a writ of habeas corpus," and he could pursue them under § 1983. Kitchen v. Snyder, No. 18-11430, 2019 WL 3859887, at *2 (E.D. Mich. Aug. 16, 2019). Even "if Kitchen's direct attack" on the Michigan parole statute "is an indirect attack on his 42-year minimum sentence, a successful attack" only means "that Kitchen would immediately come within the parole board's jurisdiction" and the "board could deny parole." Id. So even if success here "comes in the form of a new, shorter minimum sentence," it "would not necessarily speed Kitchen's release." Id. The district court thus rejected Defendants' Heck argument. The Heck issue was not litigated any further.

C.

Kitchen filed a second amended complaint, again pro se, this time expanding on his due-process and equal-protection arguments as well as reasserting his Eighth Amendment claim. Defendants again moved to dismiss, but the district court ordered Defendants to "only" address Kitchen's equal-protection and substantive-due-process claims because Defendants had "already attempted to dismiss Kitchen's Eighth Amendment claim." R.49, p.3, PageID 277. The court then issued another opinion, dismissing the equal-protection and due-process claims and interpreting Kitchen's Eighth Amendment claim as stating causes of action under the Supreme Court's rulings in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The court also appointed counsel for Kitchen. Kitchen, 616 F. Supp. 3d at 687.

Kitchen next filed a third amended complaint, updating the named Defendants-Appellants to Michigan Governor Gretchen Whitmer, MDOC Director Heidi Washington, and Michigan Parole Board Chairperson Brian Shipman. Kitchen pressed the argument that his lack of parole eligibility violates the Eighth Amendment under Miller and Graham and violates the Michigan Constitution. Kitchen, 616 F. Supp. 3d at 687-88. Kitchen requested a declaration that Michigan Compiled Laws § 791.234(1) is unconstitutional as applied to him as well as injunctive relief "requiring the Michigan Parole Board to immediately take jurisdiction" over Kitchen and give him "a parole hearing." R.78, p.12, PageID 697.

When Defendants again moved to dismiss, the district court rebuked them for taking another "bite at the apple," ordering that they could not file any more dispositive motions. R.85, p.2, PageID 755. In response, Defendants effectively withdrew their motion to dismiss so that they could file a dispositive motion at the completion of discovery.

The parties proceeded to discovery. Kitchen retained an expert witness, Dr. Christopher Wildeman, who testified about Kitchen's life expectancy. Wildeman estimated that Kitchen had a 20% chance of living to between age 55 and 60, a 60% chance of living to between age 60 and 65, and a 20% chance of living to between age 65 and 70. Kitchen, 616 F. Supp. 3d at 698, 701-02. Defendants did not offer their own expert witness for they believed Wildeman's "testimony so clearly benefit[ed] Defendants." R.98, p.19 n.2, PageID 1095. Both parties filed motions for summary judgment at the close of discovery.

The district court entered its opinion and order on July 21, 2022, partially granting summary judgment for Kitchen. It found that Kitchen lacked standing to bring his Miller claim, declined to exercise supplemental jurisdiction over the Michigan Constitution claim, and ruled for Kitchen on his Graham claim because the "undisputed record shows that Kitchen will become eligible for parole when he most likely has only four or five years left to live." Kitchen, 616 F. Supp. 3d at 689, 702-03.

Defendants filed a notice of appeal on August 17, 2022, naming the district court's August 16, 2019, opinion and order, as well as the July 21, 2022, opinion and order. But our court sent it back for lack of appellate jurisdiction, holding that there was no final order. Kitchen v. Whitmer, Nos. 22-1732, 22-1773, 2022 WL 18694505, at *2 (6th Cir. Oct. 4, 2022). On remand, the parties submitted a stipulated remedial plan, which the court adopted. See Kitchen v. Whitmer, No. 18-11430, 2022 WL 18911614, at *1-2 (E.D. Mich. Dec. 21, 2022). Under the plan, Kitchen's new earliest release date was May...