Richard v. Mohr

Donald Richard, et al., Plaintiffs, v. Gary C. Mohr, et al., Defendants.

Case No. 2:13-cv-1013

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date: March 5, 2014

ORDER

Plaintiffs are inmates who were convicted in Ohio of criminal offenses committed prior to 1996. Plaintiff Donald Richard is serving a sentence of twenty-one years to life for murder and possession of a weapon while under disability. Plaintiff Dennis Calo is serving a sentence of fifteen years to life for aggravated murder and aggravated robbery. Plaintiff Ronald Jolly is serving a sentence of ten to twenty-five years for rape. Plaintiffs have filed an action under 42 U.S.C. §1983 for declaratory and injunctive relief against Gary C. Mohr, the Director of the Ohio Department of Rehabilitation and Correction, and the members of the board of the Ohio Adult Parole Authority ("the APA"). Plaintiffs allege that the application of parole regulations and other laws enacted after July 1, 1996, to inmates such as themselves who were convicted of offenses committed prior to that date violates Ohio Rev. Code §5120.021. Plaintiffs also allege a violation of their civil rights under the United States Constitution. In particular, plaintiffs allege that the retroactive application of various Ohio laws and regulations relating to parole in contravention of §5120.021 violates the procedural due process requirements of the Fourteenth Amendment's Due Process Clause; the Eighth Amendment'sprohibition against cruel and unusual punishment; and the prohibition against the enforcement of ex post facto laws found in Article I, § 10, Clause 1.

On January 23, 2014, the magistrate judge filed a report and recommendation on the initial screen of plaintiffs' complaint pursuant to 28 U.S.C. §1915A, which requires the court, "in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," to dismiss a complaint that fails to state a claim upon which relief may be granted. 28 U.S.C. §1915A(a)-(b)(1). The magistrate judge concluded that plaintiffs' complaint fails to state a claim upon which relief can be granted, and recommended that this action be dismissed. See Doc. 3, p. 8.

This matter is before the court for consideration of plaintiffs' objections (Doc. 9) to the magistrate judge's reports and recommendations. Plaintiffs have objected to the entire report and recommendation. If a party objects within the allotted time to a report and recommendation, the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1).

I. Standards of Review

As the magistrate judge correctly explained, 28 U.S.C. §1915(e) requires sua sponte dismissal of an action upon the court's determination that the action is frivolous or malicious, orupon determination that the action fails to state a claim upon which relief may be granted. Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). Courts conducting initial screens under §1915(e) apply the motion to dismiss standard. See, e.g., Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Fed. R. Civ. P. 12(b)(6) standards to review under 28 U.S.C. §§1915A and 1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6) construe the complaint in a light most favorable to the plaintiff, accepting all well-pleaded allegations in the complaint as true, and determining whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive a motion to dismiss, the "complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory." Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id. While the complaint need not contain detailed factual allegations, the "[f]actual allegations must be enough to raise the claimed right to relief above the speculative level" and "state a claim that to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Where the facts pleaded do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as required under Federal Rule of Civil Procedure 8(a)(2). Id.

II. Plaintiffs' Claims

A. Due Process Violations

The magistrate judge correctly found that plaintiffs' allegations concerning the APA's application of various parole regulations and statutory provisions at parole hearings failed to state a colorable due process claim. "A plaintiff bringing a §1983 action for procedural due process must show that the state deprived him or her of a constitutionally protected interest in 'life, liberty, or property' without due process of law." Swihart v. Wilkinson, 209 F.App'x 456, 458 (6th Cir. 2006)(quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990); see also Michael v. Ghee, 498 F.3d 372, 377 (6th Cir. 2007). To have a constitutionally protected interest in parole, a prisoner must have a legitimate claim of entitlement to it. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id. In addition, the Constitution does not require a state to provide a parole system. See Pennsylvania v. Finley, 481 U.S. 551 (1987). The state of Ohio has not created a liberty interest in parole eligibility, as it has a completely discretionary parole system. Swihart, 209 F.App'x at 458 (citing Saunders v. Williams, 89 F.App'x 923, 924 (6th Cir. 2003)); see also State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994)("Ohio law gives a convicted person no legitimate claim of entitlement to parole prior to the expiration of a valid sentence of imprisonment").

Because plaintiffs have no protected liberty interest in being released on parole prior to the expiration of their sentences,plaintiffs have alleged no due process right which has been infringed by defendants. Bruggeman v. Collins, No. 2:09-cv-381, 2011 WL 109478 at *4 (S.D. Ohio 2011)(rejecting due process challenge to Ohio's parole system).

Plaintiffs' complaint is based primarily on the APA's alleged violation of Ohio Rev. Code §5120.021. Plaintiffs correctly note that the magistrate judge did not refer to §5120.021 in the report and recommendation. However, this omission is not fatal to the magistrate judge's recommendation that the instant action be dismissed. To the extent that plaintiffs seek to assert claims based solely on an alleged violation of state law, those claims are not cognizable under § 1983. That statute is limited to deprivations of federal statutory and constitutional rights, and may not be used as a vehicle to challenge official conduct that allegedly violates state law. Michael, 498 F.3d at 375. Plaintiffs may raise a challenge to an established state procedure pursuant to §1983, but only to the extent that the challenge invokes federal statutory or constitutional rights. Id. at 375-76.

As noted above, plaintiffs' claims of due process violations, even those resulting from alleged violations of §5120.021, fail because plaintiffs have no constitutionally protected interest in life, liberty, or property in being released on parole. Swihart, 209 F.App'x at 458. In addition, plaintiffs' complaint fails to allege any violation of §5120.021 which could conceivably result in a due process violation. Section 5120.021 provides:

(A) The provisions of Chapter 5120. of the Revised Code, as they existed prior to July 1, 1996, and that address the duration or potential duration of incarceration or parole or other forms of supervised release, apply to all persons upon whom a court imposed a term of imprisonmentprior to July 1, 1996, and all persons upon whom a court, on or after July 1, 1996, and in accordance with law existing prior to July 1, 1996, imposed a term of imprisonment for an offense that was committed prior to July 1, 1996.

(B) The provisions of Chapter 5120. of the Revised Code, as they exist on or after July 1, 1996, and that address the duration or potential duration of incarceration or supervised release, apply to all persons upon whom a court imposed a stated prison term for an offense committed on or after July 1, 1996.

(C) Nothing in this section limits or affects the applicability of any provision in Chapter 5120. of the Revised Code, as amended or enacted on or after July 1, 1996, that pertains to an issue other than the duration or potential duration of incarceration or supervised release, to persons in custody or under the supervision of the department of rehabilitation and correction.

§5120.021. The designated date, July 1, 1996, marked the change in Ohio from a system of indeterminate sentencing with eligibility for parole to a system of determinate sentences.

Plaintiffs, who were convicted of offenses committed prior to July 1, 1996, argue that this section precludes the APA from applying its regulations implemented or amended after July 1, 1996, in deciding whether to grant them parole. See Objections, Doc. 9, p. 3 ("R.C. §5120.021 is the focus, basis, and crux of this case."); p.4 (arguing that procedural due process would be to follow the parole laws in effect as required by § 5120.021). However, the plain language of §5120.021 only governs the applicability of statutory...