Opinion
Case No. 5:00-cv-2.
January 18, 2000.
JUDGMENT
In accordance with the opinion filed this date: IT IS ORDERED that plaintiff's action be dismissed pursuant to 28 U.S.C. § 1915(e), § 1915A, and 42 U.S.C. § 1997e(c) for failure to state a claim upon which relief may be granted and because it is brought against immune defendants.
For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This is a dismissal as described by 28 U.S.C. § 1915(g).
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The court has granted plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. No. 104-134, 110 STAT. 1321 (1996) ("PLRA"), the court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2), 1915A. The court must read plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the court will dismiss plaintiff's complaint for failure to state a claim and because the defendants are immune from monetary relief
Discussion I. Factual Allegations
Plaintiff is presently incarcerated at the Oaks Maximum Correctional Facility. In his complaint, he sues Jimmy Stegall, Warden of the Macomb Correctional Facility, David Broughton, a counselor at the Reception and Guidance Center, and the Michigan Department of Corrections. Defendants are sued solely in the official capacities. Plaintiff's action concerns the denial of his parole.
Plaintiff asserts that his first eligible parole date was March 21, 1996. Defendant Broughton failed to notify the parole board that plaintiff was eligible for an interview. Plaintiff asserts that "prejudice and racial discrimination" were the reasons that he was denied an interview. Plaintiff was transferred to the Macomb Correctional Facility. He was scheduled to be paroled, without an interview, in June 1996, with a release date of September 17, 1996. However, he was not released, and was not given notice of any action to suspend, rescind or revoke his parole until May 19, 1997. Apparently, plaintiff was not paroled due to misconduct convictions. Plaintiff states that "major tickets were given to justify the false imprisonment because the majority of the tickets were given after the release date." For relief, plaintiff requests monetary damages for each day he was illegally confined.
II. Failure to state a claim
At the outset, the court notes that plaintiff has failed to allege or demonstrate exhaustion of available administrative remedies.See 42 U.S.C. § 1997e(a); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 119 S.Ct. 88 (1998). Despite the lack of exhaustion, the court may dismiss the action on the merits. 42 U.S.C. § 1997e(c).
A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993), cert. denied, 510 U.S. 1177 (1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Correction Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff claims that he was denied a parole interview and that once it was determined he was to be paroled, he was not paroled due to misconduct convictions. He fails to raise a claim of constitutional magnitude. Plaintiff has no liberty interest in being released on parole. There is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so and thus, the presence of a parole system by itself does not give rise to a constitutionally-protected liberty interest in parole release. Id. at 10; Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
The Sixth Circuit, noting "the broad powers of the Michigan procedural authorities to deny parole," has held that the Michigan system does not create a liberty interest in parole.Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc),cert. denied, 513 U.S. 1158 (1995). In unpublished decisions, the Sixth Circuit also has held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Fifer v. Michigan Dept' of Corr., No. 96-2322, 1997 WL 681518, at *1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Vertin v. Gabry, No, 94-2267, 1995 WL 613692, at * 1 (6th Cir. Oct. 18, 1995); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995), cert. denied, 522 U.S. 1057 (1998); Janiskee v. Michigan Dep't of Corr., No. 91-1103, 1991 WL 7618 1, at *1 (6th Cir. May 9, 1991); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. April 10, 1990). Further, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Michigan Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Accordingly, plaintiff has no liberty interest at stake. Because plaintiff has no liberty interest at stake, he falls to state a claim for a violation of his procedural due process rights. See Sweeton, 27 F.3d at 1164-65.
Although a plaintiff could conceivably state a claim for an arbitrary denial of parole based on racial discrimination, plaintiff's allegations on this point are insufficient. He merely states that he was denied an interview due to "prejudice and racial discrimination." He provides no specific factual allegations to support his contention. Plaintiff's statement is conclusory and thus, insufficient to state a claim.
III. Immunity
In addition, the defendants in this action are immune. Plaintiff solely seeks monetary relief. Plaintiff may not maintain a § 1983 action against the Michigan Department of Corrections. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, if the state has not waived immunity and Congress has not expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978);O'Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from suit under the Eleventh Amendment. See, e.g., Erdman v. Michigan Dep't of Corr., No. 94-2109, 1995 WL 150341, at * (6th Cir. April 5, 1995);Cullens v. Bemis, No. 9201582, 1992 WL 3 37688, at *1 (6th Cir. Nov. 18, 1992); Adams v. Michigan Dep't of Corr., No. 86-1803, 1987 WL 36006, at *1 (6th Cir. May 7, 1987). Therefore, the court dismisses the Michigan Department of Corrections.
Similarly, plaintiff sues Jimmy Stegall and David Broughton solely in their official capacities. A suit against an individual in his official capacity is equivalent to a suit brought against the governmental entity; in this case, the Michigan Department of Corrections. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). An official-capacity defendant is absolutely immune from monetary damages. Will, 491 U.S. at 71; Turker v. Ohio Dep't of Rehab. and Corr., 157 F.3d 453, 456 (6th Cir. 1998); Wells v. Brown, 891 F.2d 591, 592-93 (6th Cir. 1989). Therefore, the court also dismisses the action for monetary relief against Stegall and Broughton in their official capacities.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the court determines that plaintiff's action fails to state a claim and is brought against defendant who are immune. Therefore, the court will dismiss the action pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c).
The court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3), See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. Should plaintiff appeal this decision, the court will assess the $105 appellate filing fee pursuant to § 1915(b)(1), See McGore, 114 F.3d at 610-11, unless plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $105 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.