woodard v. Michigan Parole Board et al

Filing 16

OPINION AND ORDER granting 8 Motion to Dismiss; granting 11 Motion to Dismiss. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HOWARD ALLEN WOODWARD,
Plaintiff,

Case No. 18-CV-10534
HON. GEORGE CARAM STEEH

vs.
THE MICHIGAN PAROLE
BOARD, et al.,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING
MDOC DEFENDANTS’ MOTION TO DISMISS
[ECF DOC. 8] AND GRANTING DEFENDANTS KRIEGHOFF,
REED AND SMITH’S MOTION TO DISMISS [ECF DOC. 11]
Plaintiff, Howard Woodward, is a prisoner currently under the
jurisdiction of the Michigan Department of Corrections (“MDOC”) on parole
status. Plaintiff filed his complaint under 28 U.S.C. § 1983, alleging
violations of his civil rights under the Fourth, Eighth and Fourteenth
Amendments of the United States Constitution, as well as claims under
state law. Plaintiff’s claims arise from an error in his Judgment of Sentence
by the sentencing court which resulted in a miscalculation of the date on
which he became parole eligible. Plaintiff argues that he was denied due

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process pursuant to the applicable parole statutes.
The case is presently before the court on motions filed by the served
defendants: Michigan Parole Board, MDOC, Director Heidi Washington,
Deputy Director Kenneth McKee, Jill Krieghoff, David Reed and Walton
Smith. The court is familiar with the filings in the case and determines that
it will not be further aided by oral argument.
On April 11, 2007, plaintiff entered nolo contendre pleas in the Wayne
County Circuit Court regarding: Charge 1 – carjacking; Charge 2 – robbery
armed; Charge 2 – weapons – felony firearm; and Charge 1 – robbery
armed. The Presentence Investigation (“PSI”) stated that the minimum
sentence regarding all convictions was Nine (9) years on the carjacking to
be served concurrently with the Seven (7) years for armed robbery and
Two (2) years for felony firearm. On the record, the sentencing court stated
that plaintiff’s minimum sentence would be Nine (9) years minus 125 days
credit for time served. However, the Judgment of Sentence stated that the
sentence was Nine (9) to Twenty (20) years, concurrent with the robbery
and consecutive with the felony firearm. All of the offenses related to the
felony firearm charge were dismissed.
On February 22, 2017, defendant Jill Kreighoff, Records Audit
Specialist of the Central Recorded Section, sent a letter to Judge Thomas
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Cameron addressing concerns about the accuracy of plaintiff’s sentence.
She noted that the court’s Judgment of Sentence indicated that all of
plaintiff’s sentences were to be served consecutive with his felony firearm
conviction while state statute required that the felony firearm conviction be
served consecutive with the underlying related felonies, all of which had
been dismissed. The sentencing court agreed and on March 29, 2017
issued an amended Judgment of Sentence. On March 28, 20171,
defendant prison counselor Walton Smith prepared a parole eligibility
report. The report indicated plaintiff’s minimum sentence was served on
December 21, 2015 and he became parole eligible on that date. The report
was reviewed and approved on April 20, 2017 by defendant David Reed,
acting Resident Unit Manager.

At the end of June 2017, plaintiff had an

emergency parole hearing. On July 5, 2017, plaintiff was released and
placed on 2 years parole.
Plaintiff alleges two constitutional violations by defendants. First,
plaintiff maintains that his expectation of procedural due process was
denied when he was not reviewed for parole after serving his minimum
sentence which was supposed to be Nine (9) years. In fact, plaintiff was

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It is not clear why the parole eligibility report was issued one day before the amended
Judgment of Sentence was issued.
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not granted parole for a year and a half after serving his minimum
sentence. Second, plaintiff argues that an independent violation occurred
when defendants assumed the duty of addressing the sentencing
computation issue by sending a letter to the sentencing judge. However,
after learning of the sentencing mistake, defendants failed to properly
implement the parole procedures as required by statute. Plaintiff was not
granted parole for three months after the amended Judgment of Sentence
was issued and defendants had actual notice that he was parole eligible.
MCL 791.235 creates a statutorily mandated procedural process
regarding parole:
Sec. 35. (1) The release of a prisoner on parole shall be
granted solely upon the initiative of the parole board. The
parole board may grant a parole without interviewing the
prisoner. However, beginning January 26, 1996, the parole
board may grant a parole without interviewing the prisoner only
if, after evaluating the prisoner according to the parole
guidelines, the parole board determines that the prisoner has a
high probability of being paroled and the parole board therefore
intends to parole the prisoner. Except as provided in subsection
(2), a prisoner shall not be denied parole without an interview
before 1 member of the parole board. The interview shall be
conducted at least 1 month before the expiration of the
prisoner's minimum sentence less applicable good time and
disciplinary credits for a prisoner eligible for good time and
disciplinary credits, or at least 1 month before the expiration of
the prisoner's minimum sentence for a prisoner subject to
disciplinary time.
Mich. Comp. Laws Ann. § 791.235 (emphasis added).
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In Lee v. Withrow, 76 F.Supp.2d 789, 793 (E.D. Mich. 1999), the
court held that prisoners do not have a constitutional right to be paroled, so
the parole board’s decision to deny parole does not violate a federal
constitutional right. The court indicated that the only procedural due
process that is constitutionally required is to give a prisoner the opportunity
to be heard and, if parole is denied, to inform the prisoner how he or she
falls short of qualifying for parole. Id. (citing Canales v. Gabry, 844 F.Supp.
1167, 1171 (E.D. Mich. 1994)). Plaintiff acknowledges that the Michigan
Parole Board has broad discretion to recommend or deny parole. MCL
791.235. Therefore, Plaintiff does not challenge the denial of parole.
Rather, plaintiff relies on Lee to support his claim that he had a procedural
due process right to be given an opportunity to be heard that was violated
in this case.
I.

Government Officials Sued in Official Capacity
The Eleventh Amendment bars any suit against the state, its

agencies and its officials sued in their official capacities for damages unless
the state has waived its sovereign immunity or unequivocally consented to
be sued. Defendants are employees of the state who acted in their official
capacities. Therefore, defendants are entitled to sovereign immunity
against allegations that they acted in their official capacity.
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II.

Government Officials Sued in Individual Capacity
To state a claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and must show the alleged deprivation
was committed by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). A clear showing must be made that each named
defendant was personally involved in the activity that forms the basis of the
complaint. Rizzo v. Goode, 423 U.S. 362 (1976). “[A] plaintiff must plead
that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009).
Allegations premised on respondeat superior liability are not
permitted in §1983 actions. Monell v. Dep’t of Social Servs., 436 U.S. 658
(1984). The acts of one’s subordinates are not enough, and supervisory
liability cannot be based on the mere failure to act. Greene v. Barber, 310
F.3d 889, 899 (6th Cir. 2002). Rather, to impose liability on supervisory
personnel, a plaintiff must show that the supervisor encouraged the specific
incident of misconduct or directly participated in it. Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984) (citation omitted).
The court employs a two-step inquiry in deciding qualified immunity
questions. Baynes v. Cleland, 799 F.3d 600, 610 (6th Cir. 2015). “‘First,
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viewing the facts in the light most favorable to the plaintiff, has the plaintiff
shown that a constitutional violation has occurred? Second, was the right
clearly established at the time of the violation? These prongs need not be
considered sequentially.’” Id. (internal quotations marks and citation
omitted). Where there is no showing of a constitutional violation, the officer
is cloaked with qualified immunity and the court need not address the
second prong. Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 992
(6th Cir. 2017) (citing Pearson, 555 U.S. at 232).
Defendants argue that they are entitled to qualified immunity because
their actions were not objectively unreasonable in light of clearly
established law. “The burden of convincing a court that the law was clearly
established rests squarely with the plaintiff.” Key v. Grayson, 179 F.3d
996, 1000 (6th Cir. 1999).
Plaintiff entered a series of nolo contendere pleas and the sentencing
judge issued a Judgment of Sentence as to those pleas. Neither the judge,
the prosecutor, plaintiff, trial counsel, or appellate counsel recognized the
inconsistency in the Judgment of Sentence.
A. Director Washington and Deputy Director McKee
The allegations against Director Washington and Deputy Director

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McKee are that they and their “subordinates were responsible by law for
ensuring that the MDOC enforced and abided by the laws of the United
States of America and the State of Michigan.” The court finds that plaintiff
has not made any factual allegations showing the personal involvement of
these two defendants in his complaint.
B. Krieghoff, Walton and Reed
Defendant Krieghoff is alleged to have contacted the state court for
clarification of a sentencing issue. Defendant Walton prepared, and
defendant Reed approved, a report which indicated plaintiff was within his
earliest release date and thus eligible for parole. Defendants argue there is
no allegation of personal involvement in a violation of a right secured by the
Constitution.
Once the Amended Judgment was issued, the parole statute provides
that no hearing is required if there is a high probability that parole will be
granted. While the court understands plaintiff to be arguing that the delay
between the Amended Judgment and parole being granted is a violation of
his due process rights, the court is not aware of any authority to support
plaintiff’s argument. Pursuant to the statute, parole cannot be denied
without an interview at least 1 month before the expiration of the prisoner’s

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minimum sentence. However, in this case, parole was granted reasonably
quickly once the defendants became aware that plaintiff was parole eligible.
The court agrees that there has been no allegation of a denial of a
clearly established right by these defendants.
C. Michigan Parole Board
Plaintiff alleges that the Michigan Parole Board violated his
constitutional rights when they relied on false or inaccurate information and
did not consider him for parole as required by statute. The false
information relied on in this case was a Judgment of Sentence issued by
the state court. Clearly, state officials, including the Michigan Parole
Board, are entitled to rely on court orders, even though they might contain
an error that is later corrected. There is no allegation of a violation of
plaintiff’s clearly established rights by the Michigan Parole Board that can
survive a motion to dismiss.
IV.

Pendant State Law Claims
There being no underlying federal claim that survives defendants’

motion to dismiss, the court no longer enjoys supplemental jurisdiction over
plaintiff’s state law claims. Those claims are dismissed without prejudice.

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CONCLUSION
For the reasons stated above, defendants’ motions to dismiss are
GRANTED.
Dated: July 12, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 12, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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