Opinion
Case No. 1:13-cv-847
01-05-2015
ERNEST MARSHALL, et al., Plaintiffs, v. CYNTHIA B. MAUSSER, et al., Defendants.
Black, J.
REPORT AND RECOMMENDATION
Plaintiffs Ernest Marshall, Cornel Lee, Jerry Hall, and Robert Lee Harris, Jr., inmates at the Southern Ohio Correctional Facility and the Mansfield Correctional Institution, bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs seek a declaratory judgment and injunctive relief for alleged violations of their constitutional rights by defendants, the chairperson and members of the Ohio Adult Parole Authority (OAPA). Defendants are Rich Cholar, Jr., Alicia Handwerk, Mark Houk, Andre Imbrogno, Michael H. Jackson, Kathleen Kovach, Cynthia B. Mausser, Ron Nelson, Jr., R.R. Rauschenberg, Trayce Thalheimer, and Ellen Venters.
This matter is before the Court on the following motions: (1) defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of standing and Fed. R. Civ. P. 12(b)(6) for failure to state a claim to relief (Doc. 30), plaintiff Harris's response in opposition to the motion, which plaintiff Harris purports to submit on behalf of himself and the remaining plaintiffs (Doc. 39), defendants' reply memorandum in support of the motion (Doc. 40), plaintiff Harris's supplemental response in opposition to the motion to dismiss (Doc. 42), and defendants' reply to the supplemental response (Doc. 45); (2) plaintiff Marshall's motion for writ of habeas corpus (Doc. 49), defendants* response to plaintiff Marshall's motion (Doc. 50), and plaintiff Marshall's reply in support of the motion (Doc. 53); (3) plaintiff Harris's motion for leave to file an interlocutory appeal from the Court's order staying discovery pending resolution of defendants' motion to dismiss (Doc. 56); (4) plaintiffs' motion for permissive joinder of parties pursuant to Fed. R. Civ. P. 20 (Doc. 57), defendants' opposing memorandum (Doc. 58), and plaintiff Lee's reply in support of the motion (Doc. 59); and (5) plaintiffs' motion for permissive joinder of parties, which plaintiff Lee purports to bring on behalf of all plaintiffs (Doc. 60), and defendants' response in opposition to the motion (Doc. 61).
I. Introduction
Plaintiffs allege violations of their civil rights under the Equal Protection Clause of the Fifth and Fourteenth Amendments to the United States Constitution, as well as violations of the Ex Post Facto Clause of Section 10, Article 1, of the United States Constitution. Plaintiffs also reference the Due Process Clause of the Fifth and Fourteenth Amendments in their complaint and include allegations that can be construed as asserting violations of their due process rights. The Court will therefore liberally construe the complaint as alleging claims under the Due Process Clause. See Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005) (the Court liberally construes the filings of pro se plaintiffs) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
In support of their claims, plaintiffs allege that the OAPA has formulated new guidelines and procedures which have created a quasi-suspect class comprised of inmates who were incarcerated prior to the passage of Ohio Senate Bill 2 (SB2) and who remain incarcerated under indeterminate sentences, which SB2 eliminated. Plaintiffs allege that the OAPA has treated and continues to treat this class of inmates differently from both the class of inmates who had already been paroled prior to the passage of SB2 and the class of inmates who were incarcerated subsequent to the bill's passage. Plaintiffs allege that through its procedures, the OAPA is discriminating against the class of pre-SB2 inmates who remain incarcerated and is violating the class members' rights to equal protection of the laws. Plaintiffs allege that due to procedural bias, the OAPA is denying them meaningful and fair parole hearings without any real consideration of the possibility of parole. Plaintiffs allege that the OAPA has extended their terms of incarceration beyond its own guidelines based only on the serious nature of their crimes. Plaintiffs allege that the OAPA is providing only generalities in support of its determinations without issuing a statement of the evidence used or the reasoning applied.
Senate Bill 2, which was effective July 1, 1996, "abandoned indeterminate sentences in favor of fixed terms of incarceration." Boussum v. Collins, No. 2:08cv770, 2010 WL 3860566, at *1 (S.D. Ohio Sept. 27, 2010). The amended sentencing provisions by their express terms do not apply to individuals convicted and sentenced prior to July 1, 1996. Ridenour v. Collins, 692 F. Supp.2d 827, 850 (S.D. Ohio 2010). The OAPA subsequently adopted guidelines in 1998 (the "1998 Guidelines") to "guide the discretion of parole officers making release determinations for prisoners sentenced prior to July 1, 1996." Boussum, No. 2:08cv770, 2010 WL 3860566, at *1. The OAPA "determined a presumptive length of sentence by the intersection of factors of seriousness of offense and risk of reoffense on a grid or matrix," although "[p]arole officials retained their discretion to depart from these guidelines." Id. In 2007, the OAPA established another set of parole guidelines (the "2007 Guidelines") which "maintained the use of the matrix, but only as a starting point for the parole board's decision-making process, rather than an indication of what was a reasonable sentence[;] categorized offenders into numerical categories[;] . . . [and] contained a point-based scheme for increasing an offender's category if he had committed multiple crimes." Id. The 2007 Guidelines were later rescinded. Id., n. 1.
In support of their equal protection claims, plaintiffs allege that they are a class of parole eligible inmates who, according to the OAPA, remain incarcerated based on the uncommon and serious nature of their crimes; the OAPA has raised and manipulated the offense category scores of the class in a manner that does not comply with Ohio case law; and the OAPA gives greater weight to negative aspects of reports when examining parole eligibility determinations under Ohio Rev Code § 2967.03 and focuses on the crime committed, which is an unchanging factor. Plaintiffs allege that the OAPA has demonstrated its intent to insure that members of the class serve out their maximum sentences, as evidenced by the parole rulings in the cases of a number of unidentified plaintiffs.
Plaintiffs allege that the OAPA has acted in a manner that is inconsistent with two Ohio decisions: Layne v. Ohio Adult Parole Auth., 780 N.E.2d 548, 555 (Ohio 2002), and Ankrom v. Hageman, Nos. 04AP-984, et al., 2005 WL 737833 (Ohio App. 10th Dist. Mar. 31, 2005).
Section 2967.03 sets forth the duties and powers of the OAPA and authorizes the OAPA to "grant a parole to any prisoner for whom parole is authorized, if in its judgment there is reasonable ground to believe that . . . paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society." Ohio Rev. Code § 2967.03. The statute sets forth the factors the OAPA may consider in deciding whether to grant parole. Id.
Plaintiffs also make allegations regarding a subclass of individuals convicted of sexual offenses; however, those allegations are largely incomprehensible. (Doc. 1 at 8).
In support of their claim alleging a violation of the Ex Post Facto Clause, plaintiffs allege that effective July 1, 1976, the "flop time" was increased from five to ten years by Ohio Administrative Code § 5120:1-1-10. Plaintiffs allege that this change occurred after one plaintiff, who is not identified, was sentenced in March of 1975, resulting in an increased punishment for that plaintiff.
"Flop time" is an apparent reference to the maximum number of years the statute authorizes between parole hearings.
Plaintiffs emphasize in the complaint that they do not challenge the denial of parole to class members, but instead they challenge the OAPA's procedures.
As relief, plaintiffs seek a declaration that the acts and omissions described in the complaint violate plaintiffs' rights under the Constitution and laws of the United States. Plaintiffs also seek relief from "invidious discrimination," which they claim violates their rights to equal protection of the laws and the constitutional guarantee against ex post facto application of the laws.
II. Defendants' motion to dismiss (Doc. 30)
Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of standing and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim to relief. The Court will initially address defendants' standing arguments.
In order to establish standing sufficient to satisfy the "case or controversy" requirement of Article III of the United States Constitution, a plaintiff who brings a federal lawsuit must allege "'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 715 (6th Cir. 1995) (citations omitted). The plaintiff must establish "an actual or threatened injury, a causal connection between that injury and the defendant's conduct, and a likelihood that a court decision in the plaintiff's favor will redress the injury alleged." Id. (citations omitted).
Defendants contend that plaintiffs lack standing because they have not demonstrated a sufficient likelihood that the requested relief will redress the alleged injury. Defendants argue that "the parole guidelines themselves are not subject to the declaratory judgment statute." (Doc. 30 at 4). In support of this proposition, defendants cite Festi v. Ohio Adult Parole Auth., No. 04AP-1372, 2005 WL 1670796 (Ohio App. 10th Dist. July 19, 2005). The Court in Festi set forth this proposition but stated its analysis did not end there. (Id.). Rather, the Court explained that "declaratory judgment is the proper remedy to determine the constitutionality and the constitutional application of the parole guidelines." Id. (citing Hattie v. Anderson, 626 N.E.2d 67 (Ohio 1994)). Liberally construed, plaintiffs' pro se complaint challenges the "constitutionality and the constitutional application of the parole guidelines." Id. Thus, plaintiffs do not lack standing to pursue their claims pursuant to the decision in Festi.
Defendants further allege that plaintiffs lack standing because the requested relief will not redress plaintiffs' injury. Defendants allege that plaintiffs will be in no different position than they currently occupy if their claims are granted. Defendants assert that plaintiffs do not request re-hearings for parole; the same statutory factors that have been in place since 1975 and which are not contested by plaintiffs will apply at their next parole hearings regardless of the outcome of this matter; and the OAPA will still have the discretion to make parole decisions no matter how this lawsuit is resolved. However, it is not clear that plaintiffs lack standing for the reasons alleged by defendants. Plaintiffs challenge the constitutionality of the guidelines as applied to them. Assuming their claims are valid, it is not clear that they would be unable to obtain redress for their alleged injury through either declaratory or injunctive relief
For these reasons, defendants have not shown that plaintiffs lack standing to pursue their claims. Thus, dismissal of the complaint pursuant to Rule 12(b)(1) for lack of standing is not warranted.
1. Standard of review
Defendants move to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim to relief. A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). Although the complaint need not contain "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "more than an unadorned, the-defendant-unlawfully-harmed-me accusation" is required under Fed. R. Civ. P. 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As the Supreme Court explained in Iqbal: "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks, citations, and alterations omitted).
Pursuant to Twombly and Iqbal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face if the "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). In reviewing a complaint, the Court is guided by the following principles: First, the general rule that the court must accept as true all allegations in the complaint "is inapplicable to legal conclusions." Id. This means that conclusory recitals of the elements of a claim, including legal conclusions couched as factual allegations, "do not suffice." Id. at 678-79 ("[Rule 8] does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. Plausibility is a context-specific inquiry, and the allegations in the complaint must "permit the court to infer more than the mere possibility of misconduct," namely, that the pleader has "show[n]" entitlement to relief. Id. (quoting Fed. R. Civ. P. 8(a)(2) (alteration in original)).
Because plaintiffs are pro se litigants, the Court liberally construes their filings. Spotts, 429 F.3d at 250 (citing Haines, 404 U.S. at 520) (stating that the court holds pleadings of pro se litigants to "less stringent standards than formal pleadings drafted by lawyers"). See also Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) ("Pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings.").
Plaintiffs bring their civil rights claims under 42 U.S.C. § 1983. "Section 1983 . . . authorizes courts to redress violations of 'rights, privileges, or immunities secured by the Constitution and [federal] laws' that occur under color of state law." Michael v. Ghee, 498 F.3d 372, 375 (6th Cir. 2007) (citations omitted). "The statute is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law." Id. (citation omitted). The constitutional rights at issue here are plaintiffs' rights under the Equal Protection Clause, the Due Process Clause, and the Ex Post Facto Clause.
i. Equal Protection Clause
Plaintiffs' equal protection claim is premised largely on the theory that through changes in its guidelines, the OAPA has created two classifications of individuals: those inmates sentenced after the July 1, 1996 effective date of SB2 and those sentenced prior to the effective date of SB2 who remain incarcerated. Plaintiffs claim that the OAPA has denied plaintiffs, a class of pre-SB2 inmates serving indeterminate sentences, meaningful parole consideration in violation of the Ohio Supreme Court's decisions in Layne and Ankrom. The Ohio Supreme Court in Layne held that "in any parole determination involving indeterminate sentencing, the [O]APA must assign an inmate the offense category score that corresponds to the offense or offenses of conviction"; however, the OAPA "when considering an inmate for parole, still retains its discretion to consider any circumstances relating to the offense or offenses of conviction, including crimes that did not result in conviction, as well as any other factors the [O]APA deems relevant." Layne, 780 N.E.2d at 555 (citing Hemphill v. Ohio Adult Parole Authority, 575 N.E.2d 148 (Ohio 1961); OAC 5120:1-1-07 ). In Ankrom, Nos. 04AP-984, et al., 2005 WL 737833, at *7, the Ohio Supreme Court held that the OAPA violated Layne and denied meaningful consideration to parole-eligible prisoners, all of whom pled to lesser-included offenses but were serving lengthier sentences, by determining they fell into a higher sentencing category than warranted under the offense of conviction. See Jergens v. Ohio Dep't of Rehab. & Corr. Adult Parole Auth., 492 F. App'x 567, 571 n. 6 (6th Cir. 2012). Plaintiffs allege that although the OAPA retains wide ranging discretion under Ohio Rev. Code § 2967.03, its discretion is circumscribed as to the class by the decisions in Layne and Ankrom; yet, the OAPA is raising and manipulating the offense category scores of the class in a manner which is inconsistent with these decisions. Plaintiffs further challenge the OAPA's guidelines and its application of the guidelines by alleging that the OAPA fails to provide good reasons for extending plaintiffs' sentences beyond the guidelines; fails to follow its own guidelines; places primary emphasis on plaintiffs' crimes when determining parole eligibility; and gives greater weight to negative factors in their reports. Plaintiffs allege that the decisions of the OAPA demonstrate bias against them. Plaintiffs allege that the OAPA's decisions in individual cases demonstrate that pre-SB2 inmates have been denied meaningful parole hearings due to procedural bias, and they provide examples to show that the OAPA's intent is to insure that members of the class serve out their maximum sentences.
Defendants move to dismiss plaintiffs' claims for violations of their rights under the Equal Protection Clause. Defendants contend that prison inmates do not constitute a suspect class and there is no fundamental right to parole, so that the rational basis test applies to plaintiffs' equal protection claims. (Doc. 30 at 7). Defendants allege that there is a rational basis for denying parole to these inmates. (Doc. 30 at 8). Defendants allege that these inmates' cases have "unique factors" which preclude applying a suggested time range or common risk factors to them. (Id.). Defendants contend that plaintiffs are not similarly-situated to those inmates who have been granted parole, and plaintiffs have not explained how changes in the parole guidelines have resulted in plaintiffs being treated differently from similarly-situated parole-eligible inmates.
The Equal Protection Clause of the Fourteenth Amendment prohibits any state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). The 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." Id. (citing Vacco v. Quill, 521 U.S. 793, 799 (1997); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
There is no fundamental right to parole under the Constitution. Michael, 498 F.3d at 379 (citing Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987); Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005)). Moreover, prisoners are not a suspect class. Id. (citing Jackson, 411 F.3d at 619). Thus, the rational basis test applies to plaintiff's equal protection claim. Carnes v. Engler, 76 F. App'x 79, 80-81 (6th. Cir. 2003). Under the rational basis test, "government action is presumed valid if the classification of groups is rationally related to a legitimate state interest." Id. (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). See also Michael, 498 F.3d at 379 ("Under rational basis scrutiny, government action amounts to a constitutional violation only if it is so unrelated to the achievement of any combination of legislative purposes that the court can only conclude that the government's actions were irrational.").
The plaintiff bears the burden of demonstrating that the government lacks a rational basis for its action. Michael, 498 F.3d at 379. The plaintiff may satisfy this burden either by negating "'every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.'" Id. (quoting Warren v. City of Athens, 411 F.3d 699, 711 (6th Cir. 2005)). The state's legislative choice is "presumptively valid" and "may be based on rational speculation unsupported by evidence or empirical data." Id. (quoting TriHealth, Inc. v. Bd. of Comm'rs, 430 F.3d 783, 790 (6th Cir. 2005)).
Plaintiffs' allegations fail to state a claim for violation of their equal protection rights. Plaintiffs base their equal protection claim primarily on the differing treatment they have been afforded as compared to the class of inmates that was sentenced subsequent to the effective date of SB2. However, plaintiffs cannot make out an equal protection violation based simply on the difference in treatment between these two classes of inmates. Plaintiffs must show there is no rational basis for the differing treatment. Both the Ohio and federal courts have identified a rational basis for creating separate classifications of those individuals who committed offenses before the July 1, 1996 effective date of SB2 and those individuals who committed offenses on or after the bill's effective date. See, e.g., Michael, 498 F.3d at 379-80 (recognizing as valid the State's rationales for limiting the 1996 sentencing law to prospective application only); State v. Cox, No. CA96-07-069, 1997 WL 208116, at *6 (Ohio App. 12th Dist. Apr. 28, 1997) (recognizing the "uniform application of revised criminal statutes to individuals similarly situated" as a valid reason for the prospective application of SB2). Plaintiffs have not shown that there is no rational basis for applying SB2 solely on a prospective basis. Thus, plaintiffs cannot make out an equal protection claim premised simply on the prospective application of SB2 and the resulting application of different guidelines to inmates sentenced before and after the effective date of the bill.
The Sixth Circuit in Michael identified these rationales as follows: first, by limiting the sentencing law to prospective application, the Ohio legislature sought to address the issue of sentencing reform "one step at a time"; and second, prospective application is consistent with the well-recognized rule of statutory construction which provides that "statutes affecting substantive rights and liabilities are presumed to have only prospective effect." Id. at 379-80 (citations omitted).
The complaint also fails to state a claim for violation of plaintiffs' equal protection rights insofar as plaintiffs complain of changes in the OAPA's guidelines and alleged abuses of discretion by defendants in applying the modified guidelines to plaintiffs. Plaintiffs allege that the OAPA has raised and manipulated the offense category scores of the inmate class in a manner that is inconsistent with Ohio law. However, as explained above, there is a rational basis for the different treatment of inmates who were sentenced before and after the effective date of SB2. Further, plaintiffs' allegations, taken as true, do not indicate that the OAPA has discriminated among similarly-situated members of the pre-SB2 class of inmates. Thus, plaintiffs" allegations that defendants have acted in a manner that is inconsistent with Ohio law does not implicate plaintiffs' equal protection rights. See Buoscio v. Mohr, No. 2:13-cv-0973, 2014 WL 111171, at *4 (S.D. Ohio Jan. 10, 2014), aff'd, No. 14-3074 (6th Cir. July 17, 2014) ("Though Plaintiff takes issue with the change in the guidelines, the complaint does not explain how the guidelines resulted in Plaintiff being treated differently from similarly situated parole-eligible inmates.") (emphasis added). Further, although the complaint provides examples of unnamed plaintiffs to illustrate that the OAPA has attempted to insure that plaintiffs serve out their maximum sentences, there are no allegations which provide a basis for comparison with similarly-situated inmates so as to permit a finding that the OAPA has treated plaintiffs differently from such other inmates in this regard. Moreover, insofar as plaintiffs allege that the OAPA has discriminated against them as a class in its application of the guidelines by giving greater weight to the negative aspects of reports and focusing on the inmate's crime when examining eligibility determinations under Ohio Rev. Code § 2967.03, plaintiffs do not allege any facts to show that they have been treated differently than similarly-situated inmates with respect to the application of these statutory factors. Thus, the complaint fails to state a plausible equal protection claim based on the OAPA's decision-making in plaintiffs' cases.
Plaintiffs allege that the OAPA gave one plaintiff more than the maximum amount of "flop time," which will bring him to within months of the expiration date of his maximum sentence, even though several positive factors weighed in his favor; one plaintiff has been given three "flops," which equals his maximum sentence; and the least amount of time a plaintiff has served beyond his minimum sentence is eight years and the maximum is twelve years.
In short, previous case law has established there is a rational basis for the differing treatment afforded pre-SB2 inmates and those inmates who were sentenced after the passage of SB2. Further, plaintiffs have not shown that the OAPA has discriminated against them as a class in its application of its guidelines by treating them differently from similarly-situated inmates. For these reasons, plaintiffs have failed to state a claim for violation of their equal protection rights under the Equal Protection Clause. Plaintiff's equal protection claims should be dismissed.
ii. Due Process Clause
Plaintiffs reference the Due Process Clause in the complaint and make certain allegations which pertain to deprivations of their due process rights. Plaintiffs allege that the OAPA has extended their terms of incarceration beyond its own guidelines based only on the nature of their crimes, while providing only generalities in support of its determinations and no statement of the evidence used or the reasoning applied. Further, plaintiffs allege in their responsive brief that the OAPA does not explicitly state the bases for its determinations of offense severity and factor scores, and the parole hearings are not recorded and notes are not taken so as to allow plaintiffs to bring allegations of bias or show that they had an opportunity to be heard. (Doc. 39 at 2, 4). Plaintiff Harris specifically alleges that an error was made in his parole proceedings due to the OAPA's failure to keep accurate records. (Id. at 5). The Court will liberally construe these allegations as presenting claims for deprivations of plaintiffs' due process rights.
Insofar as plaintiffs allege violations of their due process rights, their claims must fail. A Fourteenth Amendment procedural due process claim depends upon the existence of a constitutionally cognizable liberty or property interest with which the state has interfered. Michael, 498 F.3d at 378 (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). See also Foster v. Booker, 595 F.3d 353, 368 (6th Cir. 2010). "[T]he State of Ohio has not created a liberty interest in parole eligibility, as it has a completely discretionary parole system." Michael, 498 F.3d at 378 (citation omitted). A convicted individual has no constitutional right to be paroled before the expiration of a valid sentence. Id. (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)). Thus, the motion to dismiss should be granted insofar as plaintiffs allege claims for the deprivation of their due process rights.
iii. Ex Post Facto Clause
Plaintiffs bring a claim for violation of the Ex Post Facto Clause. Plaintiffs allege that one member of the pre-SB2 class was sentenced in March of 1975. Plaintiffs allege this was prior to the effective date of OAC § 5120:1-1-10, which plaintiffs allege took effect on July 1, 1976. (Doc. 1 at 8). OAC § 5120:1-1-10 provides, in relevant part, that if parole is denied at an inmate's regularly constituted parole hearing, the parole board shall either set a projected release date in accordance with the provisions of the regulation or set the time for a subsequent hearing for not more than ten years after the date of the hearing. OAC § 5120:1-1-10(B). Plaintiffs allege that prior to the enactment of OAC § 5120:1-1-10(B), a hearing was required to be held a maximum of five years after the regularly constituted parole hearing. Plaintiffs allege that the increase in maximum time between hearings results in increased punishment.
The Constitution prohibits states from imposing ex post facto laws. Michael, 498 F.3d at 380. A law constitutes an ex post facto enactment if it (1) applies to events occurring before its enactment, and (2) disadvantages the offender affected by it. Id. (citations omitted). Retroactive application of new parole guidelines states a claim for relief under the Ex post Facto Clause if such application creates a "sufficient risk of increasing the measure of punishment attached to the covered crimes;" Id. at 384 (citing Garner v. Jones, 529 U.S. 244, 250 (2000)). When the retroactively-applied version of the law "does not by its own terms show a significant risk" of increased punishment, the inmate bringing the ex post facto challenge "must demonstrate, 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. Id. (applying inquiry to case where retroactive application of the 1998 Ohio guidelines was at issue) (citing Garner, 529 U.S. at 255; Dyer v. Bowlen, 465 F.3d 280, 285 (6th Cir. 2006)). The plaintiff need not show an actual increase in punishment, but rather a "sufficient risk" of increased punishment. Dyer, 465 F.3d at 288. The "focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage', . . . but on whether [the] change . . . increases the penalty by which a crime is punishable." Boussum, No. 2:08cv770, 2010 WL 3860566, at *2 (citing Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3 (1995)).
Plaintiffs have failed to state a claim to relief based on retroactive application of OAC 5120:1-1-10(B), either on its face or as applied to the unidentified plaintiff referenced in the complaint. The allegations of the complaint, accepted as true, do not show that the regulation creates a sufficient risk of increasing the length of imprisonment for this particular plaintiff or any other individual sentenced prior to enactment of the provision. A prisoner has no constitutional or statutory right to parole, and thus no right to earlier consideration of parole. Ridenour v. Randle, 771 N.E.2d 859, 861 (Ohio 2002). See also Parsons v. Ohio Adult Parole Auth., No. 5:04-cv-2531, 2005 WL 1123474, at *4 (N.D. Ohio Mar. 30, 2005) ("A prisoner has no constitutional right to be released at his earliest parole eligibility date or at any time prior to the expiration of his maximum sentence.") (citing Greenholtz, 442 U.S. at 7). Accordingly, OAC 5120:1-1-10(B) does not on its face create a sufficient risk of increasing the length of punishment.
Nor do the allegations of the complaint, accepted as true, demonstrate a reasonable possibility that the individual plaintiff whose parole hearing date was extended faces a significant risk of increased incarceration due to application of the regulation to him. Any allegation that the change in the regulation increased the length of incarceration for this individual plaintiff or that he would have been released earlier under the old regulation is "pure conjecture," which is insufficient to withstand a motion to dismiss. See Richard v. Mohr, No. 2:13-cv-1013, 2014 WL 868242, at *8 (S.D. Ohio Mar. 5, 2014) (citing Morehouse v. Mauser, No. 2:10-cv-45, 2011 WL 249490 at *6 (S.D. Ohio Jan. 26, 2011)). There is no way to determine how the increase in the length of time between parole board hearings may have impacted the length of this individual's sentence. In any event, this claim is barred by the two year statute of limitations applicable to § 1983 actions. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (§ 1983 claim must be brought within two years of the date the cause of action accrued). For these reasons, there is no basis for finding that plaintiffs have stated a claim for violation of the Ex Post Facto Clause. This claim should therefore be dismissed.
C. Conclusion
Plaintiffs have failed to state a claim to relief pursuant to Fed. R. Civ. P. 12(b)(6) for violation of their constitutional rights. The allegations of the complaint, accepted as true, do not state a plausible claim for a deprivation of plaintiffs' civil rights under the Equal Protection Clause, the Due Process Clause, or the Ex Post Facto Clause. The motion to dismiss (Doc. 30) should be granted.
III. Plaintiff Marshall's Motion for Writ of Habeas Corpus (Doc. 49)
Plaintiff Marshall has filed a motion in this matter alleging he is eligible for a writ of habeas corpus on the grounds that: (1) in denying him parole, the OAPA has not complied with due process requirements, its own rules, and former 18 U.S.C. § 4206; and (2) habeas corpus is the appropriate remedy for a prisoner who has been denied release for false, insufficient or capricious reasons. (Doc. 49). Defendants respond that § 4206 applies only to federal prisoners and the United States Parole Commission, and the statute therefore has no applicability to this case. (Doc. 50). Defendants further contend that plaintiff Marshall challenges the duration of his confinement through his motion, which he cannot do in an action brought under 42 U.S.C. § 1983. (Id., citing Preiser v. Rodriguez, 411 U.S. 475 (1973)).
The statute has been repealed but remains in effect for offenses committed during certain years.
Plaintiffs bring this action against members of the Ohio parole board. Accordingly, federal statutes such as former 18 U.S.C. § 4206, which govern the federal parole commission and federal prisoners (see 18 U.S.C. § 4201), have no applicability to plaintiffs' lawsuit. Further, "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500. It appears that plaintiff Marshall challenges the duration of his physical imprisonment through his motion for habeas corpus. To the extent he does so, he cannot pursue such remedy by filing a motion against the members of the OAPA in this § 1983 action but instead must pursue an independent habeas action against the proper party after exhausting his state court remedies. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (while state prisoners may bring § 1983 action for declaratory and injunctive relief challenging constitutionality of state parole procedures, prisoners who seek immediate or speedier release from imprisonment must seek federal habeas corpus relief after fully exhausting state remedies). See also 28 U.S.C. § 2254(b)(1)(A) (providing that a person in custody pursuant to a state-court judgment must in general exhaust all "remedies available in the courts of the State" before seeking federal habeas relief). Accordingly, plaintiff Marshall's motion for writ of habeas corpus should be denied.
IV. Plaintiff Harris's motion for leave to file an interlocutory appeal (Doc. 56)
Plaintiff Harris moves for leave to file an interlocutory appeal from the Court's order staying discovery pending resolution of defendants' motion to dismiss. (Doc. 56). Plaintiffs' motion is moot in light of the undersigned's recommended disposition of the motion to dismiss.
V. Plaintiffs' motions for permissive joinder of parties pursuant to Fed. R. Civ. P. 20 (Docs. 57, 60)
Plaintiffs move the Court to allow the permissive joinder of parties pursuant to Fed. R. Civ. P. 20. Plaintiffs seek to join a class of pre-SB2 inmates who have been denied parole and whose periods of incarceration have been continued beyond their minimum sentences due to an alleged abuse of discretion by the OAPA. (Docs. 57, 60). Defendants oppose the first motion on the grounds it is not signed, it does not contain a certificate of service, and the Court has previously determined that plaintiffs cannot represent other parties because they are not attorneys. (Doc. 58). Defendants oppose the second motion, which is signed by plaintiff Lee, on the ground Lee does not have the authority to represent other pro se parties in this action. (Doc. 61).
The motions for permissive joinder should be denied. Plaintiffs seek to submit the motions on behalf of several prospective plaintiffs. However, as the Court has previously ruled in this matter, the plaintiffs in this lawsuit are not lawyers; therefore, they may not represent any other individuals in this matter. (Doc. 55 at 1-2, citing cases and 28 U.S.C. § 1654) (stating that by law, an individual may appear in federal court only pro se or through legal counsel). The first motion should also be denied on the grounds (1) it is not signed in accordance with Fed. R. Civ. P. 11(a), which requires that every pleading be signed by a party personally if the party is unrepresented, and (2) it does not include a certificate of service as required under Fed. R. Civ. P. 5(d)(1).
IT IS THEREFORE ORDERED THAT:
1. Plaintiff Harris's motion for leave to file an interlocutory appeal from the Court's Order on discovery issues (Doc. 56) is DENIED as moot.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiffs' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) (Doc. 30) be GRANTED on the ground the complaint fails to state a claim to relief pursuant to Fed. R. Civ. P. 12(b)(6). 2. Plaintiff Marshall's motion for habeas corpus (Doc. 49) be DENIED. 3. Plaintiffs' motions for permissive joinder (Docs. 57, 60) be DENIED. 4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Court's Order would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Date:1/5/15
/s/_________
Karen L. Litkovitz, Magistrate Judge
United States District Court
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).