Opinion
Civil Action 2:10-CV-1082
07-23-2012
OTTO BERK, et al., Plaintiffs, v. GARY MOHR, DIRECTOR, et al., Defendants.
Judge Frost
Magistrate Judge King
ORDER AND
REPORT AND RECOMMENDATION
Plaintiffs, state inmates who were convicted of criminal offenses prior to 1996, bring this action for declaratory and injunctive relief under 42 U.S.C. § 1983 alleging that the retroactive application to them of Ohio's current parole laws, guidelines and a handbook violates the United States Constitution and Ohio law. This matter is now before the Court on several pending motions.
I. MOTIONS REGARDING PLAINTIFF JACK BEATY'S SIGNATURE (Doc. Nos. 105, 120, 127, 132)
Plaintiffs have filed several motions that seek to add the signature of plaintiff Jack Beaty to certain filings. See Doc. Nos. 105, 120, 127, 132. These motions are GRANTED.
II. MOTIONS RELATING TO AMENDING COMPLAINT (Doc. Nos. 106, 110, 118, 131)
Plaintiffs have moved to further amend the Amended Complaint, Doc. No. 53, in order to add a claim for punitive damages, Doc. Nos. 106, 110. Defendants have not responded to plaintiffs' request. Plaintiffs' motions that the Court consider certain affidavits (previously submitted as Doc. No. 98) in connection with that request to amend, Doc. Nos. 118 and 131, and their motions for leave to amend, Doc. Nos. 106 and 110, are GRANTED.
Since the filing of the Amended Complaint, the Court granted plaintiffs' motion to substitute certain parties and request to further amend the Amended Complaint in order to add three signatures. Order, Doc. No. 83 (granting leave to substitute current public officials for the former public officials under Fed. R. Civ. P. 25(d) and granting leave to amend to add three signatures to the request for relief). With these changes, Doc. No. 53 remains the operative Amended Complaint.
Finally, as noted infra, these motions are only some of the many motions to which defendants have not responded throughout this litigation. See, e.g., Doc. Nos. 105, 106, 110, 112, 118, 120, 121, 129, 130, 131, 132, 134, 137. In a case like this - with multiple plaintiffs, multiple defendants and an already voluminous docket - defendants' failure to respond to motions creates ambiguity in the record, unnecessarily extends the time for ruling on motions that may be unopposed and, not least of all, imposes an unwarranted burden on the Court. Therefore, in the future, unless the Court rules prior to a response deadline, defendants are ORDERED TO RESPOND TO ALL MOTIONS FILED IN THIS CASE even if the response is simply a one-page notice indicating that the motion is unopposed.
III. MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. Nos. 85, 91)
Plaintiffs, seven parole eligible inmates who are currently incarcerated by the Ohio Department of Rehabilitation and Correction ("ODRC"), are proceeding without the assistance of counsel. It appears that all plaintiffs were sentenced prior to 1996 and most (or all) plaintiffs were sentenced to terms of imprisonment of up to life or for a sex offense. Amended Complaint. All have either been denied parole or their parole "on or after date" was rescinded prior to release. Id.
The Amended Complaint is largely incomprehensible. For example, plaintiffs allege:
The Amended Complaint is verified. Id. at ii.
Whereas, Now! the defendants state that the prior usurped 1998, 2005, and 2007 Parole Board Guidelines "artifice Hearing" do not contain recoupment or restoration provisions for the Operations of Law minimum considerations of parole eligibility or suitability standards ab initio, simply because the Allen Rescission Order does not effect the previous applied ex post facto, due process violations that denied the plaintiffs their substantive rights for parole eligibility and suitability vested rights[.]Id. at ¶ 13. Plaintiffs later allege that the Ohio Parole Board Handbook, attached to the Amended Complaint ("the Handbook"), was
written with ambiguity authority. . . and by this presumption of ineffered evidence that the tergiversate 2010 handbook is an ex post facto and due process continuation of procedures for voiding the trial courts operation of law and plaintiffs vested rights at each and every instant parole suitability may be a consideration for the plaintiffs under parole sanctions.Amended Complaint, ¶ 18. See also id. at ¶¶ 16 ("That the 2 010 Handbook is an artifice action for previous applied S.B.2 laws, administrative rules, regulations, policies and procedures that continue to hold open the OVS, Other Persons (OP) Petition Jurisdiction with OVS "Open" Full Board hearing retroactively to pre-1996 inmates."), 19 ("Defendants have notified the Plaintiffs that they will be usurped a deduction for a users utility fee for electricity use."). The Amended Complaint also references multiple statutes, provides partial citations to various cases and attaches twenty pages of exhibits, including a copy of the Handbook that is missing portions of the text.
Nevertheless, construing the Amended Complaint liberally as a whole, see Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), the Court understands plaintiffs to allege that the retroactive application to them of various post-1996 parole procedures, O.R.C. Chapter 2930 ("the Victims' Rights Statutes") and the Ohio Parole Board Handbook, attached to Amended Complaint ("the Handbook"), violates the due process and ex post facto clauses of the United States Constitution, the Ohio Constitution as well as O.R.C. §§ 1.48, 1.58. Plaintiffs apparently also allege that their retention in prison subjects them to overcrowding in violation of the Eighth Amendment. The Amended Complaint further alleges that plaintiff Marshall Banks was denied the equal protection of the law.
Defendants have moved for judgment on the pleadings. Defendants' Motion for Judgment on the Pleadings, Doc. No. 85 ("Motion for Judgment on the Pleadings"). Thereafter, Plaintiff's [sic] Motion for Dismissal of Defendant Motion to Stay Discover [sic] and Motion for Judgement [Sic] on the Pleadings, Doc. No. 91 ("Plaintiffs' Response"), which the Court construes to be plaintiffs' response in opposition to the Motion for Judgment on the Pleadings,was filed. After Defendants' Reply in Support of Motion for Judgment on the Pleadings (Doc. 85), Doc. No. 97 ("Reply"), was filed, plaintiffs offered additional support to their opposition to the Motion for Judgment on the Pleadings. See Doc. Nos. 100, 104.
The Court presumes that plaintiffs' filing, Doc. No. 91, is also intended to serve as plaintiffs' memorandum in opposition to defendants' motion to stay discovery pending resolution of the Motion for Judgment on the Pleadings, which will be addressed infra.
A. Standard
A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is resolved by reference to the same standard applicable to a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). Thus, all of the factual allegations in the complaint are accepted as true and a motion for judgment on the pleadings will be granted only if the complaint fails to allege "enough facts to state a claim for relief that is plausible on its face." Bell Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."). However, a claim "requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do." Twombly, 550 U.S. at 555. See also HDC, LLC, 675 F.3d at 611 ("Merely pleading facts that are consistent with a defendant's liability or that permit the court to infer misconduct is insufficient to constitute a plausible claim."). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555.
Finally, although the Court's decisions "rests primarily upon allegations in the complaint, 'matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[] also may be taken into account.'" Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir. 2001)). See also Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) ("A court may consider public records without converting a Rule 12(b)(6) motion into a Rule 56 motion."); New Eng. Health Care Empl'ees. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) ("A court that is ruling on a Rule 12(b)(6) motion may consider materials in addition to the complaint if such materials are public records or are otherwise appropriate for the taking of judicial notice.").
B. Plaintiffs' Eighth Amendment Claims
Plaintiffs allege that their retention in prison subjects them to overcrowding in violation of the Eighth Amendment. Amended Complaint, p. 11. However, overcrowding alone does not violate the Eighth Amendment. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 346-49 (1981) (concluding, inter alia, that double-celling alone does not amount to cruel and unusual punishment); Johnson v. Heffron, 88 F.3d 404, 407 (6th Cir. 1996) ("Exceeding those [prison population] limits [set forth in a consent decree] is not necessarily overcrowding, however, and, moreover, overcrowding itself is not necessarily unconstitutional."). Indeed, "[w]hile overcrowded conditions can be restrictive and even harsh, they do not violate the Eighth Amendment unless they deprive the inmate of the minimal civilized measure of life's necessities." Brodak v. Nichols, No. 97-1688, 1998 U.S. App. LEXIS 20535, at *4 (6th Cir. Aug. 17, 1998). Here, plaintiffs do not allege that they were "denied basic human needs such as food, warmth, or sanitation by virtue of the allegedly overcrowded conditions." Halliburton v. Sunquist, No. 02-6016, 59 Fed. Appx. 781, at *782 (6th Cir. Mar. 11, 2003) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Instead, plaintiffs simply allege in conclusory fashion that the overcrowded conditions are "substandard" and suggest that such conditions "could be construed as cruel and unusual punishment[.]" Amended Complaint, p. 11 (emphasis added). Accordingly, the Amended Complaint fails to state a claim under the Eighth Amendment.
C. Plaintiffs' State Law Claims
Plaintiffs also allege that certain policies, procedures and the Handbook violate Article II, § 28 of the Ohio Constitution ("Retroactive laws"), O.R.C. §§ 1.48 ("Statute presumed prospective")and 1.58 ("Effect of reenactment, amendment, or repeal [of a statute]"). See, e.g., Amended Complaint, pp. 1-2, 9-10, 12. However, these state law claims, by themselves, do not give rise to a claim under 42 U.S.C. § 1983. McCarthy v. City of Cleveland, 626 F.3d 280, 283 n.1 (6th Cir. 2010); Thomas v. Cohen, 304 F.3d 563, 578 (6th Cir. 2002). State employees may not be sued on state law claims unless and until the Ohio Court of Claims has determined that the employees are not entitled to immunity under Ohio law, O.R.C. §9.86. See, e.g. , Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989); Grooms v. Marshall, 142 F. Supp. 2d 927, 932 (S.D. Ohio 2001). Therefore, plaintiffs' state law claims cannot proceed.
D. Plaintiff Banks's Equal Protection Claim
The Amended Complaint alleges that plaintiff Banks, who is serving a sentence of 15 years to life, was denied equal protection because he was treated differently than other pre-1996 inmates convicted of similar crimes and who were released on parole after serving less than 22 years. Id. at pp. 8-9. Under the Equal Protection clause, states may not "make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one differently from others similarly situated without any rational basis for the difference." Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005) (citing Vacco v. Quill, 521 U.S. 793, 799 (1997)). The United States Constitution does not guarantee a fundamental right to parole. Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007). Moreover, prisoners are not a suspect class, see Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005), and plaintiff Banks cannot "make out a violation of his equal protection rights simply by showing that other inmates were treated differently." Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992). Accordingly, the Amended Complaint fails to state an equal protection claim as to plaintiff Banks.
E. Plaintiffs' Due Process Claims
Plaintiffs assert that the retroactive application to them of certain current parole laws and guidelines violates the due process clause. Defendants argue that plaintiffs' due process claims fail as a matter of law because Ohio inmates do not have a liberty interest in parole under Ohio law. Motion for Judgment on the Pleadings, pp. 3-4. Plaintiffs disagree, although they appear to assert, variously, that they have a conditional liberty interest in parole and that they do not claim a liberty interest. See, e.g. , Doc. No. 91, pp. 2, 8; Doc. No. 100, pp. 2-3; Doc. No. 104, pp. 2-3.
Defendants' arguments are well-taken. The United States Constitution does not guarantee an inmate's release on parole, Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979), and Ohio has not created a liberty interest in parole eligibility. See Michael, 498 F.3d at 378 ("[T]he state of Ohio has not created a liberty interest in parole eligibility, as it has a completely discretionary parole system.'") (quoting Swihart v. Wilkinson, No. 05-4269, 209 F. App'x 456 (6th Cir. Nov. 21, 2006)); State ex rel. Hattie v. Goldhardt, 69 Ohio St. 3d 123, 125-26 (1994); O.R.C. § 2967.03 (providing that Ohio's adult parole authority "may" grant parole to a parole-eligible inmate under certain circumstances).
Plaintiffs' apparent reliance on Wilkinson v. Dotson, 544 U.S. 74 (2005), see Amended Complaint, ¶¶ 8, 12; Plaintiffs' Response, ¶¶ 7, 14, does not militate a different result as to plaintiffs' due process claims. Wilkinson simply recognized that 42 U.S.C. § 1983 may be utilized to challenge the application of new parole guidelines where the challenge, if successful, would result in new proceedings rather than the inmate's earlier release. Id. at 81-85. Wilkinson did not create a federally protected right to parole and the mere fact that Wilkinson recognizes the right to challenge the application of parole guidelines under § 1983 does not mean that plaintiffs have stated a cognizable due process claim. Plaintiffs' due process claims must fail.
F. Plaintiffs' Ex Post Facto Claims
Plaintiffs allege that the retroactive application to them of current parole statutes, laws and the Handbook violates the ex post facto clause, which prohibits
Congress from passing any law that (1) retroactively imposes punishment for an act that was not punishable when committed, (2) retroactively increases the punishment for a crime after its commission, or (3) deprives one charged with a crime of a defense that was available at the time the crime was committed.Collins v. Youngblood, 497 U.S. 37, 42 (1990). The ex post facto clause applies to revised parole guidelines if the retroactive application of new guidelines "creates a 'sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Michael, 498 F.3d at 384, quoting Garner v. Jones, 529 U.S. 244, 250 (2000). See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995) (stating that the ex post facto inquiry should focus on whether the change in law "alters the definition of criminal conduct or increases the penalty by which a crime is punishable").
Accordingly, an inmate challenging laws or guidelines promulgated after his conviction may successfully establish an ex post facto violation if (1) the retroactively-applied version of the law, by its own terms, shows a significant risk of increased punishment, or (2) the inmate demonstrates "'by evidence drawn from the [law]'s practical implementation by the agency charged with exercising discretion, that [the law's] retroactive application will result in a longer period of incarceration than under the earlier' version of the law." Foster v. Booker, 595 F.3d 353, 362 (6th Cir. 2010). See also Michael, 498 F.3d at 384. The mere allegation that punishment has increased is insufficient to establish an ex post facto violation unless the inmate establishes that the increase "is attributable to statutory changes to the parole process and not to a change in the way the [Parole Board] legitimately exercises its discretion." Foster, at 362. See also Powers v. Collins, No. 2:09-cv-501, 2010 U.S. Dist. LEXIS 141284, at *15-25 (S.D. Ohio Sept. 27, 2010) (finding no ex post facto violation where, inter alia, the parole board had discretion "to determine whether plaintiff was suitable for parole based on the nature of his crime regardless of what changes were made to the parole guidelines or when he had been sentenced").
With this standard in mind, the Court concludes that plaintiffs' allegations as to their ex post facto claims are sufficient to survive the Motion for Judgment on the Pleadings. The Court notes that, at this stage, where the Court's review is limited to allegations in the Amended Complaint, exhibits attached thereto and matters of public record, plaintiffs have not yet had the opportunity to present evidence, such as statistics, to establish their ex post facto claims. Whether plaintiffs' allegations in support of these claims can ultimately survive scrutiny under the standard of Rule 56 must await further development of the record. At this juncture, plaintiffs' ex post facto claims should proceed. Therefore, it is RECOMMENDED that defendants' motion for judgment on the pleadings, Doc. No. 85, be GRANTED as to plaintiffs' Eighth Amendment claims, due process claims, state law claims and plaintiff Banks's equal protection claims, but DENIED as to plaintiffs' ex post facto claims. It is FURTHER RECOMMENDED that plaintiffs' motion to dismiss defendants' motion for judgment on the pleadings, Doc. No. 91, which is really a brief in opposition to defendants' motion, be DENIED.
IV. MOTIONS RELATING TO SUMMARY JUDGMENT (Doc. Nos. 123, 125, 126, 134)
Plaintiffs have moved for summary judgment. Doc. No. 125. In connection with that motion, plaintiffs have filed what appear to be requests for leave to file additional documents and legal argument. Doc. Nos. 123, 126. The Court notes that some of the text in these documents is illegible. See Exhibits 2B and 2C, attached to Doc. No. 123. Nevertheless, plaintiffs' motions, Doc. Nos. 123 and 126, are GRANTED only to the extent that they seek to supplement plaintiffs' motion for summary judgment.
Plaintiffs have also filed a motion entitled "Leave of Court to File Motion for Supplemental Summary Judgment on Default and Motion to Show Cause." Doc. No. 134. The document appears to be incomplete and it is unclear what plaintiffs intend by this filing. The second pageof the document alleges that plaintiff Gary Calhoun's next parole hearing has been continued to March 1, 2017, even though he poses no risk and should be paroled, and asks "that Defendants show cause why Gary Calhoun was not paroled." Id. at 2. Page 3 of the document appears to be a signature page for plaintiff Jeff Blair. Id. at 3. Page 4 of the document asks that plaintiff Jack Beatty's name be added. Id. at 4. To the extent that plaintiffs intend by this document to offer the attached exhibits in support of their motion for summary judgment, that request is GRANTED. However, plaintiffs' conclusory request for an order to show cause, without more, is without merit and therefore DENIED.
Inexplicably, the second page of this document contains a handwritten page number "3" at the bottom. Id. at 2.
Turning to plaintiffs' motion for summary judgment, the Court notes that the standard governing such motions is well established. Summary judgment is appropriate if the record establishes that there exists no genuine issue of material fact. Fed. R. Civ. P. Rule 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251. See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Here, for the reasons discussed supra, the Court has already concluded that defendants are entitled to judgment as to plaintiffs' Eighth Amendment claims, due process claims, state law claims and plaintiff Banks's equal protection claims. Similarly, for the reasons already discussed, the Court concludes that summary judgment as to plaintiffs' ex post facto claims is premature. Accordingly, it is RECOMMENDED that plaintiffs' motion for summary judgment, Doc. No. 125, be DENIED as to plaintiffs' Eighth Amendment claims, due process claims, state law claims and plaintiff Banks's equal protection claims, and DENIED without prejudice to renewal as to plaintiffs' ex post facto claims.
V. PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION (Doc. No. 112)
Plaintiffs have filed a motion seeking "a Temporary Restraining Order with a Preliminary Injunction[.]" Doc. No. 112, p. 1. Plaintiffs seek to prohibit defendants from, inter alia, "harassing, threatening, chastising, punishing, transferring or retaliating in any way, against the name [sic] plaintiffs, or any other pre-1996 inmates, persons, who aided the plaintiffs by filing a requested [sic] for relief by affidavit or injunction for a remedy in/at law in the case at bar." Id. at 1. Defendants have not responded to plaintiffs' motion.
A. Standard
Rule 65 of the Federal Rules of Civil Procedure permits a party to seek injunctive relief if the party believes that he will suffer irreparable harm or injury. Fed. R. Civ. P. 65(a) and (b). Temporary restraining orders are orders issued without written or oral notice to the adverse party or its attorney. Fed. R. Civ. P. 65(b). Conversely, preliminary injunctions may be issued only after the adverse party has been provided notice of the request. Fed. R. Civ. P. 65(a). In this case, defendants have received notice of plaintiffs' request, which the Court will therefore treat as a request for a preliminary injunction.
As this motion may be resolved on the plaintiffs' filing, there is no need for an evidentiary hearing. See Potter v. Havlicek, No. 3:06-cv-211, 2007 U.S. Dist. LEXIS 10677, at *10 (S.D. Ohio Feb. 14, 2007) ("A hearing is not always necessary on a motion for a preliminary injunction.") (citing, inter alia, 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2949).
"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth. , 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978) (internal quotation marks omitted)). The decision whether or not to grant a preliminary injunction falls within the sound discretion of the district court. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009) (citing Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007)). An injunction, however, is an extraordinary remedy that may be granted only after the Court has considered the following four factors:
(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc)) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6th Cir. 1995)). "'These factors are not prerequisites, but are factors that are to be balanced against each other.'" Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) (quoting Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002)). "Moreover, a district court is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue." Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). Plaintiffs, as the movants, bear the burden of establishing that "'the circumstances clearly demand'" this extraordinary remedy. Jones, 569 F.3d at 265 (quoting Overstreet, 305 F.3d at 573). See also Leary, 228 F.3d at 739 (6th Cir. 2000) ("[T]he proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.").
B. Discussion
Plaintiffs initially ask this Court to prohibit defendants from harassing, threatening, transferring, or otherwise retaliating against them "or any other pre-1996 inmates" who have assisted plaintiffs in this litigation. Doc. No. 112, p. 1. The motion also requests an order seeking various forms of injunctive relief related to plaintiffs' incarceration and parole hearings. Id. at 3.
Plaintiffs have failed to establish that "the circumstances clearly demand" the extraordinary remedy that they seek. Jones, 569 F.3d at 265. First, the Court is not persuaded that plaintiffs have demonstrated a strong likelihood of success on the merits. Plaintiffs have not submitted any evidence in support of their motion for extraordinary injunctive relief; plaintiffs offer only unsworn, conclusory allegations of wrongdoing by the defendants. Moreover, plaintiffs' assertions, which are largely incomprehensible, do not explain how defendants' allegedly objectionable behavior amounts to retaliation for plaintiffs' participating in this litigation. For example, plaintiffs contend that
Plaintiff Calhoun request an immediate restraining Order due the (conflict of interest) presumption displayed by the Parole Board towards Plaintiff Blair, the failure of the Board for Blairs' restoration to his Statutory Case Law Conviction law's Administrative Regulation, and Parole Procedures as claimed in the alleged tergiversate 2010 Parole Board Handbook, and pursuant to the retaliation towards Blairs by acting agents with Blairs' removal from the Marion Correction without any broken security rules or recent infraction or anything that Blair had recently done, accept be a plaintiff in the action at bar, object to the recent parole hearing and file a grievance against the M.C.I. parole Officer for withholding evidence favorable to Blair at his hearing.Doc. No. 112, p. 1. Based on this record, the Court cannot conclude that plaintiffs have established a likelihood of success on their claims.
In addition, plaintiffs have not established that they will suffer irreparable harm if the requested injunction does not issue. Construed liberally, the motion appears to allege that the parole board has applied current parole laws, regulations and the Handbook against plaintiffs in order to discourage plaintiffs from pursuing this action. However, plaintiffs' unsworn allegations do not support a finding that the alleged harm is unlawful, actual or immediate. Doc. No. 112, pp. 1-2. As an initial matter, there is no evidence or even suggestion that the current laws and regulations were applied to plaintiffs only after they initiated this litigation, i.e. , there is no evidence that defendants, in applying such laws and regulations, are retaliating against plaintiff because of their litigation activity. In addition, as discussed supra, there has been no finding, at this stage of the proceeding, that the current parole laws, Victims' Rights Statutes or the Handbook violate plaintiffs' constitutional rights. Cf. United Transp. Union v. Michigan Bar, 401 U.S. 576, 584 (1971) ("An injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct.").
Moreover, the alleged irreparable harm "must be both certain and immediate, rather than speculative or theoretical." Mich. Coalition of Radioactive Material Users, Inc v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). Here, plaintiffs generally assert that they "will suffer with further malicious injury" unless the requested injunction issues, but their allegations amount to no more than mere speculation. Doc. No. 112, pp. 1 (alleging, inter alia, that plaintiff Calhoun "will be forced by Mandatory Pass to see the Ohio Parole Board" to that plaintiff's detriment), 3 (asserting, inter alia, that defendants' "presumptive intent levied against the Plaintiffs could deny parole eligibility/suitability") (emphasis added). These allegations are simply too speculative to warrant injunctive relief. See, e.g., Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006) (finding that plaintiffs must demonstrate "actual and imminent harm" rather than speculative or unsubstantiated harm).
Finally, the many motions filed by plaintiffs after they filed that motion for a preliminary injunction belies any suggestion that they have been intimidated or discouraged, and therefore irreparably harmed, from pursuing this litigation.
Having concluded that plaintiffs have not shown a likelihood of success on the merits or irreparable harm, the Court need not examine the remaining factors in determining whether a preliminary injunction is warranted. See Jones, 341 F.3d at 476 ("[A] district court is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue."). Accordingly, this Court concludes that, based on the present record, plaintiffs have not met the high standard for issuing extraordinary injunctive relief. It is therefore RECOMMENDED that plaintiffs' motion seeking "a Temporary Restraining Order with a Preliminary Injunction," Doc. No. 112, be DENIED.
VI. PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE (Doc. No. 137)
Plaintiffs have filed a motion captioned Plaintiffs Request Leave for Judicial Notice for Amended Senate Bill 299, Section 5149.10 (1974) Submission. Doc. No. 137. Although this motion is, again, largely incomprehensible, plaintiffs appear to ask the Court to take judicial notice of the fact that O.R.C. § 5149.10, together with several statutes and "C.O.B.R. or Full Board Hearing," create harsher penalties, resulting in constitutional violations. Id. at 3. In support of their request, plaintiffs attach a copy of what appears to be a copy of the 1974 version of O.R.C. § 5149.10. See Doc. No. 137, pp. 6-9. Once again, defendants have not responded to plaintiffs' motion.
O.R.C. § 5149.10 addresses membership on the parole board, clemency recommendations and parole determinations. In particular, this statute provides that a member of the parole board "shall be a person who has been a victim of crime or who is a member of a victim's family or who represents an organization that advocates for the rights of victims of crime." O.R.C. § 5149.10(B).
Rule 201 of the Federal Rules of Evidence provides that
[t]he court may judicially notice a fact that is not subject to reasonable dispute because it:Fed. R. Evid. 201(b). As the language of Rule 201 makes clear, whether or not to take judicial notice of a fact falls within the court's discretion. See, e.g. , United States v. Husein, 478 F.3d 318, 337 (6th Cir. 2007).
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably questioned.
Here, plaintiffs have not asked the Court to take judicial notice of adjudicative facts within the meaning of Rule 201. Instead, plaintiffs simply offer their own legal conclusions which are subject to reasonable dispute and which cannot "be accurately and readily determined from sources whose accuracy cannot reasonably questioned." Fed. R. Evid. 201(b)(2). Plaintiffs' own interpretation of statutes, other laws and/or the Handbook is not an appropriate subject of judicial notice. See, e.g. , United States v. Adesida, No. 97-3319, 1998 U.S. App. LEXIS 5501, at *2-3 (6th Cir. Mar. 17, 1998) (affirming, inter alia, denial of motion to take judicial notice of legal conclusions). Accordingly, Plaintiffs Request Leave for Judicial Notice for Amended Senate Bill 299, Section 5149.10 (1974) Submission, Doc. No. 137, is DENIED.
VII. MOTIONS RELATING TO CASE DEADLINES AND DISCOVERY (Doc. Nos. 86,
117, 130, 133)
This Court previously ordered that all discovery be completed no later than January 24, 2012, and that dispositive motions be filed no later than February 23, 2012. Order, Doc. No. 84, pp. 1-2. Defendants have moved for a stay of discovery pending resolution of their motion for judgment on the pleadings, Doc. No. 86. Defendants also ask the Court to hold plaintiffs' motion for summary judgment in abeyance or to extend the deadline for filing dispositive motions. Doc. No. 133. Plaintiffs have asked for additional time to conduct discovery, Doc. Nos. 117, 130.
In light of the Court's rulings and recommendations supra, the Court agrees that the case schedule must be modified. Accordingly, defendants' motion to stay discovery, Doc. No. 86, is DENIED as moot. Defendants' motion to hold plaintiffs' motion for summary judgment in abeyance or to extend the deadline for filing dispositive motions, Doc. No. 133, is DENIED to the extent that it asks to hold plaintiffs' motion in abeyance, but GRANTED to the extent that the Court will extend the deadline for filing dispositive motions. Plaintiffs' motions to extend the discovery deadline, Doc. Nos. 117 and 130, are GRANTED to the extent that the discovery deadline will be extended. The Court will issue a separate scheduling order forthwith.
VIII. MOTIONS RELATING TO PLAINTIFFS' REQUESTS TO COMPEL DISCOVERY AND FOR A SHOW CAUSE ORDER (Doc. Nos. 121, 129, 138)
Plaintiffs have filed a motion that the Court interprets as a request to compel discovery from individuals who allegedly testified before one or more parole board hearings. Doc. No. 129. Once again, defendants have filed no response to plaintiffs' motion.
Review of the motion and of the documents attached thereto suggests that plaintiffs sent to defense counsel requests for admission directed to the following four individuals: Christina Kuchciniski, Lara Hall, Hargus Hall and Michael Hall. See id. at 2-3, 23. None of these individuals is a party to this action. After defense counsel refused to serve these individuals with the requests for admission, id. at 23, plaintiffs filed the instant motion.
Rule 36 of the Federal Rules of Civil Procedure, which governs requests for admission, applies only to parties. Fed. R. Civ. P. 36(a)(1) ("A party may serve on any other party a written request to admit[.]") (emphasis added). Plaintiffs' demand that requests for admission be served on persons who are not parties to the action was therefore improper and defense counsel did not act improperly in refusing to submit the requests to those individuals. Plaintiffs' motion to compel or for a show cause order, Doc. No. 129, is without merit and is therefore DENIED.
Plaintiffs have also filed Plaintiffs' Motion for a 'Show Cause Order' as to Why the Defendant Gary Mohr, D.R.C. Director and the O.A.P.A. Chair, Cynthia Mausser Have Failed to Timey Comply to Am.Sub.S.B. No. 86, Section 10 '90 Day Mandate', Doc. No. 121. Defendants have not responded to the motion.
Although it is not entirely clear what plaintiffs intend by this filing, the Court construes the motion as seeking an order (1) compelling defendants to engage in discovery, and (2) to show cause why defendants have not complied with a portion of H.B. 86, 129th Gen. Assemb. (Ohio 2011). See Doc. No. 121. As to the first matter, plaintiffs argue that defendants have failed to timely respond to various discovery requests purportedly served on December 2, 2011 and that this failure constitutes a contempt of the Court's earlier scheduling order. Id. at 3 (citing Order, Doc. No. 84). Plaintiffs also appear to ask the Court to take judicial notice of certain newspaper articles. Doc. No. 138.
To the extent that plaintiffs seek to compel discovery, the request is without merit. Plaintiffs have failed to attach to their request the required certification that they have "in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed. R. Civ. P. 37(a)(1). Moreover, it is unclear to whom plaintiffs' discovery requests are directed. See, e.g., Doc. No. 121, p. 5 (seeking an order compelling defendants "to comply to the December 2, 2011 Discovery of (S.B.86 Section 10 Report(s)) to the Legislators") (emphasis added). Like requests for admission, interrogatories and requests for the production of documents maya be directed only to parties. See Fed. R. Civ. P. 33a ("[A] party may serve on any other party no more than 25 written interrogatories, including all discrete subparts."); 34(a) ("A party may serve on any other party a request within the scope of Rule 26(b)[.]"). In light of the ambiguity in the present record, the Court cannot conclude that plaintiffs' motion to compel is meritorious.
Plaintiffs' request for judicial notice of certain newspaper articles, Doc. No. 138, does not change this conclusion. Plaintiffs ask the Court to take judicial notice "that Defendants have refused to respond to Plaintiffs 'Discovery Request' but do respond with public notice statements to the issues at bar, for alleged public support in job security and promotions." Id. at 3. However, as discussed supra, the Court may take judicial notice only of facts that are not subject to reasonable dispute. Fed. R. Evid. 201. Information contained in newspaper clippings is not an appropriate subject of judicial notice.
The Court next turns to the second issue raised in plaintiffs' motion, Doc. No. 121, related to defendants' purported failure to comply with a portion of H.B. 86, 129th Gen. Assemb. (Ohio 2011). It is not immediately apparent whether plaintiffs' motion in this regard relates to claims asserted in the Amended Complaint or if the motion is intended to assert new claims. If the assertions relate to claims already alleged, plaintiffs' request should be raised in a properly supported motion for summary judgment; if the assertions are intended to raise new claims, plaintiffs must file a separate motion for leave to file yet another amended complaint. In either event, plaintiffs' present request for a show cause order related to defendants' purported non-compliance is without merit. Accordingly, plaintiffs' motions in this regard, Doc. Nos. 121 and 138, are DENIED.
The Court expresses no opinion, at this juncture, on the merits of any such motion.
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WHEREUPON, it is ORDERED that
1. Plaintiffs' motions to add the signature of plaintiff Jack Beaty, Doc. Nos. 105, 120, 127, 132, are GRANTED;
2. Plaintiffs' motions for leave to amend the complaint to add a claim for punitive damages, Doc. Nos. 106 and 110, and their motion that the Court consider affidavits previously submitted in connection with that request to amend, Doc.
Nos. 118 and 131, are GRANTED;
3. Plaintiffs' motions to supplement their motion for summary judgment, Doc. Nos. 123 and 126, are GRANTED;
4. Plaintiffs' motion for Leave of Court to File Motion for Supplemental Summary Judgment on Default and Motion to Show Cause, Doc. No. 134, is GRANTED to the extent that it seeks to supplement plaintiffs' motion for summary judgment, but DENIED to the extent that it seeks an order to show cause;
5. Plaintiffs' motion for judicial notice, Doc. No. 137, is DENIED;
6. Defendants' motion to stay discovery, Doc. No. 86, is DENIED as moot;
7. Defendants' motion to hold plaintiffs' motion for summary judgment in abeyance or to extend the deadline for filing dispositive motions, Doc. No. 133, is DENIED to the extent that it asks to hold plaintiffs' motion in abeyance, but GRANTED to the extent that it seeks an extension of the time to file dispositive motion. The Court will extend the deadline for filing dispositive motions by separate order;
8. Plaintiffs' motions to extend the discovery deadline, Doc. Nos. 117 and 130, are GRANTED. The Court will extend the deadline for the completion of discovery by separate order;
9. Plaintiffs' motions for an order to show cause and request for a show cause hearing, Doc. Nos. 121, 129 and 138, are DENIED.
Defendants are FURTHER ORDERED TO RESPOND, IN SOME FASHION, TO ALL MOTIONS FILED IN THIS CASE unless the Court rules on a motion prior to the applicable response deadline.
It is RECOMMENDED that
1. Defendants' motion for judgment on the pleadings, Doc. No. 85, be GRANTED in part and DENIED in part. Specifically, the motion should be GRANTED as it relates to plaintiffs' Eighth Amendment claims, due process claims, state law claims and plaintiff Banks's equal protection claims, but be DENIED as to plaintiffs' ex post facto claims;
2. Plaintiffs' motion to dismiss the motion for judgment on the pleadings, Doc. No. 91, be DENIED;
3. Plaintiffs' motion for summary judgment, Doc. No. 125, be DENIED as to plaintiffs' Eighth Amendment claims, due process claims, state law claims and plaintiff Banks's equal protection claims, and DENIED without prejudice to renewal as to plaintiffs' ex post facto claims;
4. Plaintiffs' motion for a temporary restraining order/preliminary injunction, Doc. No. 112, be DENIED.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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Norah McCann King
United States Magistrate Judge