Hernandez v. Washington et al
ORDER Adopting 26 Report and Recommendation, Denying 22 Motion for Preliminary Injunction filed by Aaron Nicholas Hernandez, and Granting 18 Motion to Dismiss, filed by Barbara Sampson, Lori Gidley, Jerome Warfield, Ivan Scott, Al Sanger, Heidi Washington. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 16-10854
Honorable David M. Lawson
Magistrate Judge Anthony P. Patti
HEIDI WASHINGTON, JEROME WARFIELD,
BARBARA SAMPSON, LORI GIDLEY, AL
SANGER, and IVAN SCOTT,
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, OVERRULING PLAINTIFF’S OBJECTIONS,
GRANTING DEFENDANTS’ MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT, AND DISMISSING CASE
Plaintiff Aaron Hernandez, a Michigan prisoner, filed a complaint against the defendant
prison officials alleging that they classified him as a sex offender without conducting a preclassification hearing. He contends that this classification is inaccurate and has wrought damaging
consequences, including the denial of parole, exclusion from prison programs, and withholding of
The Court referred this case to Magistrate Judge Anthony P. Patti for pretrial
management. Thereafter, the defendants filed a motion to dismiss, and the plaintiff filed a motion
for a preliminary injunction. Judge Patti filed a report on January 20, 2017 recommending that the
defendants’ motion be granted and the case be dismissed, and the plaintiff’s motion be denied as
moot. The plaintiff filed objections on February 27, 2017, which take issue with some of the
statements in the report that found fault with the level of specificity of the allegations of misconduct
against individual defendants. However, the objections do not address the core deficiencies in the
complaint: that the plaintiff has not identified a liberty interest protected by the Due Process Clause,
he has made claims against defendants who are protected by various forms of immunity, and he was
afforded adequate due process protection against baseless accusations of sexual misconduct during
the sentencing phase of his criminal case. After giving fresh review to the arguments tendered in
favor of and against the motion to dismiss, the Court is left with the firm conviction that the
magistrate judge decided the case correctly.
The following facts are taken from the complaint and the public records of the Michigan
Department of Corrections (MDOC).
Plaintiff Aaron Hernandez presently is in MDOC custody at the Carson City Correctional
Facility in Carson City, Michigan. Hernandez was convicted in the Wayne County, Michigan circuit
court after pleading guilty to assault and burglary charges. Under the terms of his plea agreement,
related charges of first-degree criminal sexual conduct and assault with intent to commit sexual
penetration were dismissed. On August 6, 2008, he was sentenced to one to 10 years on the assault
count and six to 20 years for burglary.
Hernandez asserts that at his plea hearing he “gave a factual basis for the pleas, but at no time
did he ever admit to committing any sexual offense.” Compl. ¶ 21. However, the presentence
investigation report (PSIR) “included allegations that Plaintiff had engaged in sexual misconduct
during the course of his crimes, even though the sexual offenses were dismissed and Plaintiff did
not admit to committing any sexual offense.” Id. ¶ 22. As a result, he says, he “has been directly
[or] indirectly classified [and] labeled by the [d]efendants as a ‘sex offender’ pursuant to MDOC
policies, operating procedures, and administrative rules.” Id. ¶ 23.
Defendant Heidi Washington is the director of MDOC. Defendants Jerome Warfield and
Barbara Sampson are members of the Michigan Parole Board. Defendant Lori Gidley is the warden
of the correctional facility where the plaintiff was held when he filed his complaint (the Central
Michigan Correctional Facility (CMCF) in St. Louis, Michigan). Defendant Al Sanger is the
classification director at the CMCF and is responsible for assigning classifications to all prisoners.
Defendant Ivan Scott was the plaintiff’s resident unit manager at CMCF.
On September 23, 2013, the Michigan Parole Board ordered a psychological evaluation of
the plaintiff “to determine the risk of sexually re-offending.” Compl. ¶ 24. The report of that
evaluation discussed the plaintiff’s “risk of sexually offending recidivism” and concluded that he
was a “high risk for sexual re-offense.” Id. ¶ 25. That assessment was based in part on the
plaintiff’s refusal during a psychological evaluation interview to confess that he had committed
sexual offenses. Id. ¶ 26. Defendants Warfield and Sampson relied on that assessment when they
decided to deny parole to the plaintiff. Id. ¶ 25.
On October 21, 2013, Hernandez was directed by the defendants (although he does not
specify by name which ones) to participate in the Sex Offender Program while in prison. Compl.
¶ 27. He refused to participate, and he was voluntarily terminated from the program. On October
8, 2014, a parole guidelines worksheet was prepared by the defendants (again, unnamed) that stated
as an aggravating condition his involvement in a “sexual offense or sexually assaultive behavior.”
Id. ¶ 28. On October 31, 2014, defendants Warfield and Sampson issued a decision denying the
plaintiff parole, and in their notice of decision they cited as one factor that “psychological
programming [had] been recommended or required and [the plaintiff] chose not to be involved.”
Id. ¶ 29.
While he has been in prison, Hernandez has sought access to various programs and
privileges, including asking for a gate pass for work details, asking to be allowed to participate in
the prison’s dog program, hospice program, and college program, and asking to attend family
funerals. Those requests were denied on the basis that the plaintiff was ineligible due to his
classification or labeling as a “sex offender.” Compl. ¶ 30.
In August 2015, the plaintiff filed a grievance demanding that he be reclassified, and that all
references to his “sex offender” status be purged from any MDOC records, and he pursued that
grievance through the full series of administrative appeals, but it was denied. Id. ¶¶ 32-39.
The complaint sets forth a single count for denial of due process based on the defendants'
classification of the plaintiff as a “sex offender” and imposition of the requirement that he participate
in sex offender programming as a condition of parole, without holding any hearing before
determining his classification or denying him parole. He asks that the Court order the defendants
to strike from his prison records all references to his sex offender classification, lift the requirement
that he complete sex offender programming as a condition of parole, and hold a new hearing on his
parole eligibility. He also seeks the rather modest sum of $10,000 as compensatory damages against
the defendants jointly and severally.
The defendants moved to dismiss the complaint, citing Federal Rule of Civil Procedure
12(b)(6). When such a motion is filed, the Court assumes that all of the plaintiff’s well-pleaded facts
are true, and then determines whether the plaintiff has stated a claim for which relief can be granted.
Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010); Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). As the magistrate judge acknowledged, when the
plaintiff is not a lawyer and represents himself, the Court will be lenient in its assessment of the
complaint’s adequacy. Erickson v. Pardus, 551 U.S. 89, 94 (2007). But that leniency goes only so
far. The plaintiff cannot be relieved of the obligation to make out a claim that the law recognizes.
Martin v. Overton, 391 F.3d. 710, 714 (6th Cir. 2004) (“The leniency granted to pro se [litigants]
. . . is not boundless.”).
A. The Magistrate Judge’s Report
The magistrate judge concluded that all of Hernandez’s claims against all of the defendants
should be dismissed because (1) Hernandez has no Due Process-protected interest in receiving either
a pre-classification hearing before his “classification” as a sex offender, or any due processguaranteed right to receive parole (or even consideration for parole); (2) all of the defendants are
entitled to Eleventh Amendment immunity from all claims against them in their official capacities
seeking monetary damages; (3) the claims against defendants Sanger, Scott, Ridley and Washington
should be dismissed because Hernandez failed to plead any facts in the complaint to show that they
personally were involved in any of the challenged classification proceedings or parole decisions,
other than by processing and denying Hernandez’s grievances; and (4) defendants Sampson and
Warfield have absolute immunity from the claims for monetary relief for any conduct within the
scope of their duties as members of the Michigan Parole Board. The magistrate judge also
concluded that the defendants all were entitled to qualified immunity, because Hernandez has failed
to establish that he had a clearly established constitutional right, in the circumstances of this case,
to have a pre-classification hearing before prison officials classified him as a sex offender.
Finally, the magistrate judge concluded that any pre-classification due process concerns that
may have been implicated in this case presumably sufficiently were allayed at the sentencing phase
of the criminal case by the procedure under Michigan Court Rule 6.425(E)(1)(b), where the
defendant is afforded an opportunity to object to anything in the presentence investigation report,
and, if the sentencing court upholds any of his objections, to have those portions of the report
excised before transmission to MDOC, see Mich. Ct. R. 6.425(E)(2). Hernandez asserts that the
prison official defendants relied on the information in the presentence report when making their
classifications, without holding any hearing, but he does not allege that he was denied the
opportunity to raise objections and have a hearing on the allegedly objectionable conclusions in the
report, either at or before his sentencing.
B. Hernandez’s Objections
When a party objects to a report and recommendation, the Court will “make a de novo
determination of those portions of the report or specified findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This fresh review requires the Court to
re-examine all of the relevant arguments presented to the magistrate judge in order to determine
whether the recommendation should be accepted, rejected, or modified in whole or in part. 28
U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection
requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be
clear enough to enable the district court to discern those issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the
magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are
too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file
specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd v.
Million, 380 F.3d 909, 912 (6th Cir. 2004).
1. First Objection
Hernandez contends that he adequately has alleged personal involvement by defendant
Sanger, because Sanger’s job is to assign classifications to all prisoners, and Sanger never offered
the plaintiff any hearing before classifying him as a sex offender. However, even if it is fair to infer
from those allegations that Sanger must have been the person who assigned the allegedly improper
classification, the further allegations in the complaint cannot plausibly support any conclusion that
Sanger’s conduct resulted in any Due-Process-cognizable injury to the plaintiff’s rights.
First, the plaintiff has not plausibly alleged that the classification resulted in an injury to any
Due-Process-protected liberty interest. That is essential. When a procedural due process violation
is alleged, before deciding if the procedures are adequate, “the Court must determine whether the
interest at stake is a protected liberty or property interest under the Fourteenth Amendment.”
Puckett v. Lexington-Fayette Urban County Gov’t, 833 F.3d 590, 604 (6th Cir. 2016) (citing Wojcik,
257 F.3d at 609). As the magistrate judge correctly observed, the Sixth Circuit and the Supreme
Court consistently have held that denial of access to prison privileges, rehabilitation, and
employment programs does not implicate the Due Process Clause. Moody v. Daggett, 429 U.S. 78,
88 n.9 (1976) (“[N]o due process protections were required upon the discretionary transfer of state
prisoners to a substantially less agreeable prison, even where that transfer visited a ‘grievous loss’
upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative
programs in the federal system.”); Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001)
(“[W]e find that the district court properly dismissed as frivolous Plaintiff’s claim that he was fired
from his prison job.”). It also is settled law in this circuit that, under the State of Michigan’s
discretionary parole scheme, “[t]here is no ‘legitimate claim of entitlement to’ parole, and thus no
liberty interest in parole.” Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011) (citing Greenholtz
v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979); Caldwell v. McNutt, 158 F.
App’x 739 (6th Cir. 2006)). Even if, as Hernandez asserts, he was denied access to a “gate pass”
for work assignments, participation in the “dog program,” hospice program and college program,
permission to attend family funerals, and even if he also ultimately was denied parole, all because
of his refusal to comply with requirements imposed as a result of the allegedly improper
classification, none of those injuries are cognizable under the Due Process Clause.
Second, as the magistrate judge aptly noted, the plaintiff’s claims that he was denied a preclassification hearing are fatally implausible where he positively alleges that he was classified as
a sex offender “pursuant to MDOC policies, operating procedures, and administrative rules,”
because the “PSIR included allegations that he had engaged in sexual misconduct during the course
of his crimes.” Compl. ¶ 23. He does not allege that any procedural defect infected the rote
application of those rules, policies, and procedures, other than the failure to hold a “preclassification hearing.” But the time for such a hearing on the plaintiff’s objection to his status was
at his sentencing, when the plaintiff was permitted by the applicable state rules of court to raise any
objections he desired to anything in the PSIR. See Mich. Ct. R. 6.425(E)(2) (“If any information
in the presentence report is challenged, the court must allow the parties to be heard regarding the
challenge, and make a finding with respect to the challenge or determine that a finding is
unnecessary because it will not take the challenged information into account in sentencing. If the
court finds merit in the challenge or determines that it will not take the challenged information into
account in sentencing, it must direct the probation officer to (a) correct or delete the challenged
information in the report, whichever is appropriate, and (b) provide defendant’s lawyer with an
opportunity to review the corrected report before it is sent to the Department of Corrections.”). The
plaintiff does not allege that he was denied the right to raise objections to the material in the PSIR
at his sentencing, or that he asked for a hearing and one was refused. Where the plaintiff, as here,
did not take advantage of the opportunity that was available to him for a pre-classification hearing
on his “sex offender” status, he cannot later raise the failure to conduct such a hearing as the basis
for a denial of procedural due process. Dubuc v. Twp. of Green Oak, 406 F. App’x 983, 989 (6th
Cir. 2011) (“[T]he Dubucs did not avail themselves of [the opportunity for a hearing or appeal], and
they should not be able to now use their inaction against the defendants in claiming a violation of
due process.”) (citing Santana v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004) (“A party
cannot create a due process claim by ignoring established procedures.”)).
2. Second and Third Objections
Hernandez objects that he adequately alleged that defendants Scott, Gidley, and Washington
personally were involved in the denial of his rights, because each of them were aware of the
wrongful classification and failed to provide a hearing; and his “supervisory liability” claims against
these defendants should not be dismissed, because they encouraged the continuing harm by denying
his grievances. These objections are without merit.
It is well established that mere knowledge and failure to act do not render a party liable under
42 U.S.C. § 1983. Instead, the plaintiff must show that a defendant “encouraged the specific
incident of misconduct or in some other way directly participated in it.” Phillips v. Roane County,
534 F.3d 531, 543 (6th Cir. 2008). It is not enough to show merely that a defendant knew of
unconstitutional conduct and failed to act. Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir.
2006). And the mere denial of grievances does not amount to “encouragement” of any violations
sufficient for individual liability to attach to the prison administrators involved in the grievance
process. Burgess v. Fischer, 735 F.3d 462, 479 (6th Cir. 2013) (“Fischer did not order the
takedown, nor do Plaintiffs assert that a course of action selected by Fischer was the moving force
behind Burgess’ injury. Fischer’s after-the-fact approval of the investigation, which did not itself
cause or continue a harm against Burgess, was insufficient to establish the Monell claim.”).
3. Fourth Objection
Latsly, Hernandez argues that the magistrate judge erred in concluding that participation in
the sex offender program was not a prerequisite for parole, because he has alleged that he was
denied parole for refusing the participate in the program. The plaintiff contends that any
“consideration” of parole that he receives from the board is meaningless, because “he is always
denied parole for not taking the sex offender class and for not admitting to being a sex offender, a
crime he has never committed.”
For the same reasons discussed above, whether or not the plaintiff was denied parole because
of his failure to participate in a program requirement that was imposed as a result of the allegedly
improper classification, he cannot make out any viable due process claim where the only result of
the asserted procedural defect was denial of discretionary parole.
Hernandez does not challenge the magistrate judge’s conclusions that all of the defendants
are immune from any suit for money damages under the Eleventh Amendment or the doctrine of
absolute quasi-judicial immunity, as it applies to the two parole board members. And he does not
cite any authority contrary to the well-established case law holding that he has no due processcongnizable liberty interest in participating in any prison programs or privileges that he was denied,
or that, under Michigan’s discretionary parole scheme, he has any due process-protected entitlement
to receive parole, or to be considered for it. He also has failed plausibly to allege that any of the
defendants’ conduct caused him to be deprived of a pre-classification hearing, where the applicable
state court procedures plainly allowed him one, and he evidently did not take advantage of that
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#26] is ADOPTED, and the plaintiff’s objections [dkt. #27] are OVERRULED.
It is further ORDERED that the defendants’ motion to dismiss [dkt. #18] is GRANTED.
It is further ORDERED that the plaintiff’s motion for a preliminary injunction [dkt. #22]
It is further ORDERED that case is DISMISSED WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 27, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 27, 2017.
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