Young-Bey v. Blumberg et al

Filing 27

MEMORANDUM. Signed by Judge J. Frederick Motz on 8/25/11. (c/m af 8/25/11)(amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEFFREY M. YOUNG-BEY,
Plaintiff

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v.

CIVIL ACTION NO. JFM-10-2448
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DAVID R. BLUMBERG, et al.,
Defendants

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MEMORANDUM

Plaintiff brings this pro se action against David R. Blumberg, Chairman of the Maryland
Parole Commission, Ruth Ogle, a Program Manager, M. Turner, Institutional Parole Agent, and the
State of Maryland. ECF Nos. 1 & 14. He asserts jurisdiction under 42 U.S.C. ' 1983. Plaintiff
seeks compensatory damages as well as declaratory and injunctive relief. He states that his
procedural due processes rights were violated during his parole hearing. He also alleges that use of
the Uniform Sexual Offender Policy (“USOP”) in considering his eligibility for parole violated the
Ex Post Facto Clause of the Constitution and that his First Amendment rights were violated ECF
No. 14. Now pending in this case are motions to dismiss, or in the alternative for summary
judgment filed by defendants. ECF Nos. 10 & 18. Plaintiff has responded. ECF Nos. 16 and 24.1
After review of the record, the court finds a hearing is not necessary. See Local Rule 105.6 (D. Md.
2011).

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Plaintiff has also filed a motion for an order for copies and motion to admit exhibit #2 to traverse. ECF
Nos. 25 & 26. The motion for copy work shall be denied as moot as plaintiff was able to acquire the document sought.
The motion to admit the exhibit shall be granted.

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1. Factual Background
Plaintiff was sentenced to a thirty-five year term of incarceration, consecutive to his federal
sentence, on September 24, 1997, in the Circuit Court for Baltimore County, Maryland, upon his
conviction for attempted first-degree rape, attempted first-degree sexual offense, and false
imprisonment. ECF No. 10, Ex. 1, Attachment A. Plaintiff was transferred from federal custody to
Maryland custody in 2001. Id., Attachment B.
In January, 2007, Ogle reviewed plaintiff’s parole file and determined that he should be
scheduled for his first parole hearing at the one-quarter mark of his term of incarceration. Id.
Plaintiff’s parole hearing was held on July 29, 2010 before Ogle. Id., Attachment C. After
considering all of the factors Ogle recommended rehearing the matter for parole in June, 2014. Id.
Specifically, the hearing officer noted:
Subject received in DOC in 2001 after serving 96 months in federal system. Current
[regulations] do not permit him to be considered for work release. Subject had been
drinking and using cocaine the night of the offense. Cannot offer an explanation.
Completed Domestic Violence and [Alternatives to Violence Program] and social
work groups. Recommendation allows opportunity to review [consider him for
parole again] prior to making final decision [to refuse parole].
Id., Attachment C.
Commissioner Blunt adopted Ogle’s recommendation on August 2, 2010. Id. Plaintiff was
served a notice of the decision on December 7, 2010. Id., Attachment D. He noted exceptions on
December 7, 2010.2 ECF No. 18, Ex. 6.
2. Standard of Review
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment if the movant shows that
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Plaintiff’s exceptions were misfiled by the Commission. During the pendency of these
proceedings they were located and processed. Id., Ex. 1, Attachments A & B.

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there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat
the motion:
By its very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest upon
the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts showing
that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should
Aview the evidence in the light most favorable to....the nonmovant, and draw all inferences in her
favor without weighing the evidence or assessing the witness= credibility.@ Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide
by the Aaffirmative obligation of the trial judge to prevent factually unsupported claims and defenses
from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986)).
3. Analysis
A.

Eleventh Amendment
Under the Eleventh Amendment to the United States Constitution, a state, its agencies and

departments are immune from suits in federal court brought by its citizens or the citizens of another

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state, unless it consents. See Penhurst State School and Hospital v. Halderman, 465 U. S. 89, 100
(1984). While the State of Maryland has waived its sovereign immunity for certain types of cases
brought in State courts, see Md. State Gov't Code Ann., ' 12-202(a), it has not waived its immunity
under the Eleventh Amendment to suit in federal court. Thus plaintiff=s complaint against the State
of Maryland is barred by the Eleventh Amendment.
B. Respondeat Superior
The law in the Fourth Circuit is well established that the doctrine of respondeat superior
does not apply in '1983 claims. See Love-Lane v. Martin, 355 F. 3d 766, 782 (4th Cir. 2004) (no
respondeat superior liability under '1983); see also Trulock v. Freeh, 275 F. 3d 391, 402 (4th Cir.
2001) (no respondeat superior liability in a Bivens suit). Liability of supervisory officials Ais not be
based on ordinary principles of respondeat superior, but rather is premised on >a recognition that
supervisory indifference or tacit authorization of subordinates= misconduct may be a causative factor
in the constitutional injuries they inflict on those committed to their care.=@ Baynard v. Malone, 268
F. 3d 228, 235 (4th Cir. 2001) citing Slakan v. Porter, 737 F. 2d 368, 372 (4th Cir. 1984).
Supervisory liability under ' 1983 must be supported with evidence that: (1) the supervisor had
actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor=s
response to the knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) there was an affirmative causal link between
the supervisor=s inaction and the particular constitutional injury suffered by the plaintiff. See Shaw
v. Stroud, 13 F. 3d 791, 799 (4th Cir. 1994). Plaintiff has alleged no facts against Chairman
Blumberg and his claim against Blumberg shall be dismissed.

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C.

Due Process
Plaintiff claims he was denied due process during his parole hearing. In order to state a

cognizable claim for denial of due process under the Fifth or Fourteen Amendments, plaintiff must
identify denial of protected liberty interest. Due process applies when Agovernment action deprives
a person of liberty or property.@ Greenholtz v. Inmates of the Nebraska Penal & Correctional
Complex, 442 U.S. 1, 7 (1979). AThere is no constitutional or inherent right of a convicted person to
be conditionally released before the expiration of a valid sentence.@ Greenholtz. at 7; see also
Sandin v. Conner, 515 U.S. 472 (1995) (early release through parole does not constitute a protected
liberty interest); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (Maryland=s parole statutes
and regulations do not create a legitimate expectation of parole release). In the event a liberty
interest is created by statute, due process requires only a hearing and statement of reasons for denial
of parole. Greenholtz, 442 U.S. at 7. Without a liberty interest, no process is due. See Henderson v.
Simms, 223 F.3d 267, 274-5 (4th Cir. 2000).
Plaintiff was provided a hearing and was advised in writing of the reasons for scheduling a
rehearing. He was not denied parole outright; rather, a hearing was scheduled for June, 2014.
Plaintiff received all the process he was due.
D.

Ex Post Facto
Plaintiff also appears to claim that using the “Uniform Sex Offender Policy” in determining

his parole eligibility violated the Ex Post Facto Clause of the Constitution. Plaintiff’s Ex Post Facto
claim, raised for the first time in his amended complaint is wholly conclusory and does not specify
what aspect of his parole review violated the Ex Post Facto Clause. As such, defendants have not
addressed whether the USOP was applied to plaintiff’s case, or whether it has been adopted as a
requirement for use in parole hearings as plaintiff seems to allege.

Section 7-305 of Correctional Services Article of the Annotated Code of Maryland Code
provides:
Each hearing examiner and commissioner determining whether an inmate
is suitable for parole, and the Commission before entering into a predetermined
parole release agreement, shall consider:
(1) the circumstances surrounding the crime;
(2) the physical, mental, and moral qualifications of the inmate;
(3) the progress of the inmate during confinement, including the academic
progress of the inmate in the mandatory education program required under
§ 22-102 of the Education Article;
(4) a report on a drug or alcohol evaluation that has been conducted on the
inmate, including any recommendations concerning the inmate's
amenability for treatment and the availability of an appropriate treatment
program;
(5) whether there is reasonable probability that the inmate, if released on
parole, will remain at liberty without violating the law;
(6) whether release of the inmate on parole is compatible with the welfare
of society;
(7) an updated victim impact statement or recommendation prepared under
§ 7-801 of this title;
(8) any recommendation made by the sentencing judge at the time of
sentencing;
(9) any information that is presented to a commissioner at a meeting with
the victim; and
(10) any testimony presented to the Commission by the victim or the
victim's designated representative under § 7-801 of this title.

It is unclear from plaintiff’s submission whether the USOP was applied to his case and/or
whether it forms part of the “matrix system” used by the Maryland Parole Commission to assess

eligibility for parole.3 To the extent plaintiff claims that the use of the USOP was not in effect at the
time he was sentenced and therefore it should not apply to his parole hearing, his claim fails.
The Ex Post Facto Clause of the United States Constitution prohibits retroactive increases in
punishment for a crime after its commission. See U.S. Const. art I, ' 9; Collins v. Youngblood, 497
U.S. 37, 43-43 (1990). It assures that Alegislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.@ Weaver v.Graham, 450 U.S. 24, 28-9
(1981). The fact that a change in parole law has occurred, does not establish an ex post facto
violation. See California Department of Correction v. Morales, 514 U.S. 499, 501-02 (1995). A
retroactively applied parole regulation, guideline, or policy statement may violate the Ex Post Facto
Clause if it creates Aa significant risk@ of Aa longer period of incarceration than under the earlier
rule.@ Garner v. Jones 529 U.S. 244, 255 (2000).4
Plaintiff will not be imprisoned beyond the term imposed by the sentencing court. The
Maryland General Assembly has neither altered the definition of plaintiff=s criminal conduct nor
increased the punishment for his crimes. To the extent plaintiff claims that use of the USOP creates
a Asignificant risk@ of a longer incarceration, such a claim is nothing more than speculation. In fact,
the Commission has granted plaintiff a rehearing date for July, 2014 and cited numerous reasons for
denying parole in 2010, none of which relied on the USOP. Moreover, the Commission could have
denied parole outright, without scheduling a rehearing date, simply based on the nature of plaintiff=s

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Maryland parole guidelines, known as the “matrix system” do not limit the discretion of the Parole
Commission and therefore the adoption of same does not constitute a constitutional violation. See Braxton v. Josey,
567 F. Supp 1479, 1481 (D. Md. 1983).
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In Garner, the Court reviewed Awhether the retroactive application of a Georgia law permitting the
extension of intervals between parole considerations violated the Ex Post Facto Clause.@ Garner, 529 U.S. at 246. The
Court concluded because it could not determine on the record before it whether retroactive application of the law
increased Ato a significant degree, the likelihood or probability of prolonging respondent=s incarceration,@ For that reason,
the case was reversed and remanded. Id. at 256-57.

offense.
E.

First Amendment/Retaliation Claims
In the first motion to dismiss filed by defendants they erroneously indicated plaintiff had

failed to file an exception to the denial of parole. In his first amended complaint, plaintiff points to
this error as effort by defendants to both prevent his free expression and as evidence of their
discriminatory conduct. ECF. No. 14. In the motion to dismiss the amended complaint, Blumberg
avers that as a result of plaintiff’s claim that he filed exceptions to the denial of a parole Blumberg
ordered a search of files which uncovered plaintiff’s exceptions. The error has been corrected and
plaintiff’s exceptions were to be processed. ECF No. 18, Ex. 1.
In order to state a retaliation claim based on the First Amendment, plaintiff must allege that
his speech was protected by the First Amendment; that a retaliatory action on the part of the
defendants adversely affected his constitutionally protected speech; and that there was a causal
relationship between his speech and the defendants’ retaliatory action. See Campbell v. Cushwa, 758
A.2d 616, 625, citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000). Plaintiff
has failed to allege, much less demonstrate, such action on the part of defendants. Rather, it appears
that the delay in processing plaintiff’s exceptions was simply a clerical error which has now been
corrected. A mere conclusory averment, as provided by plaintiff in the instant case, is insufficient
to withstand a dispositive motion. See District 28, United Mine Workers of Am., Inc. v. Wellmore
Coal Corp., 609 F. 2d 1083, 1085 (4th Cir. 1979).

4. Conclusion
The motions to dismiss or for summary judgment shall be granted. Plaintiff’s request for
relief is denied. A separate Order shall be entered reflecting the ruling set forth herein.

__August 25, 2011
Date

____/s/_______________________________
J. Frederick Motz
United States District Judge