Goree #111992 v. Combs et al
Filing
5
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENVER GOREE,
Plaintiff,
Case No. 1:12-cv-791
v.
Honorable Robert J. Jonker
TOM COMBS et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The
Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321
(1996), 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. 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, Plaintiff’s
action will be dismissed for failure to state a claim.
Factual Allegations
Plaintiff Denver Goree is a state prisoner incarcerated with the Michigan Department
of Corrections (MDOC). He sues the following members of the Michigan Parole Board: Tom
Combs, Amy Bonito, Barbara Sampson, Sonia Amos-Warchock, Stephen DeBoer, Anthony King,
Jayne Price, Charles Brown, Abigail Callejas, and Michael Eagen.
Following a jury trial in Kent County Circuit Court, Plaintiff was convicted of
first-degree murder, Mich. Comp. Laws § 750.316.1 On June 26, 1969, he was sentenced to life
imprisonment. In January 1983, the parole board voted “to confirm a commutation release” if
Plaintiff completed twenty-two years of his sentence. (Compl., docket #1, Page ID#4.) To date,
Plaintiff has been imprisoned for forty-four years “without any consideration from [the] parole
board.” (Id.) Plaintiff contends that he has been deprived of a “commutation contract” with the
Michigan Parole Board. (Id.)
Attached to the complaint are several exhibits, including: MDOC Policy Directive
PD-DWA-45.12, Guidelines for Commutation Recommendations (Sept. 1, 1981 version & Dec. 14,
1987 version); MDOC Procedure OP-DWA-45.05, Commutation and Long Term Interview, Report
and Review Guidelines (Aug. 1, 1984); and documentation indicating that the parole board
calculated Plaintiff’s “release guideline” as twenty-two years. (See Exs. A-F to Compl., docket #11.)
Plaintiff asserts that Defendants have deprived him of his right to due process under
the Fourteenth Amendment to the Constitution. As relief, he seeks damages from each Defendant
1
Information regarding Plaintiff’s conviction and sentence has been obtained from the MDOC’s Offender
Tracking Information System, at http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=111992.
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(excluding those who have “voted in favor of Plaintiff’s release”) and an order requiring the parole
board to “proceed with a recommendation for a commutation.” (Compl., docket #1, Page ID#5.)
Discussion
I.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
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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); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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 contends that Defendants have deprived him of his right to procedural due
process under the Fourteenth Amendment. To establish a procedural due process violation, a
plaintiff must prove that (1) he was deprived of a protected liberty or property interest, and (2) such
deprivation occurred without the requisite due process of law. Club Italia Soccer & Sports Org., Inc.
v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir. 2006); see also Swihart v. Wilkinson, 209 F.
App’x 456, 458 (6th Cir. 2006).
Plaintiff fails to state a claim of constitutional magnitude because, as the Supreme
Court has recognized, an inmate has no constitutional or inherent right to commutation of his
sentence. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 67-68 (2009);
Ohio Adult Parol Auth. v. Woodard, 523 U.S. 272, 280 (1998); Conn. Bd. of Pardons v. Dumschat,
452 U.S. 458, 464 (1981); see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979) (holding that an inmate has no constitutional entitlement to release on parole). Clemency
proceedings ordinarily are left to the discretion of the executive and “‘are rarely, if ever, appropriate
subjects for judicial review.’” Woodard, 523 U.S. at 280 (quoting Dumschat, 452 U.S. at 464); see
also Workman v. Summers, 111 F. App’x 369, 371 (6th Cir. 2004); Workman v. Bell, 245 F.3d 849,
851 (6th Cir. 2001). While judicial intervention may be appropriate in extraordinary death penalty
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cases to ensure that the procedure is not entirely arbitrary, non-death cases do not implicate any
federal interest. See Woodard, 523 U.S. at 289 (O’Connor, J., concurring with three other Justices
and distinguishing Dumschat, a non-death case); Workman v. Bell, 245 F.3d at 851.
Even if Plaintiff has no inherent or constitutional right to commutation of his
sentence, he may have a state-created right if the state’s regulations and procedural rules limit the
discretion of state officials in making parole or commutation decisions. Greenholtz, 442 U.S. at 7;
Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). The Supreme Court has recognized, however, that
such interests are of constitutional magnitude only if their deprivation places “atypical and
significant hardship[s] on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995); see also Woodard, 523 U.S. at 283. “Thus, Sandin teaches that
[the Court] should be hesitant to find a protected liberty interest in policy directives governing parole
or commutation hearings, given that a change in the state’s procedures typically will not cause a
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Moran v.
McGinnis, No. 95–1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); see also Woodard, 523
U.S. at 283.
Plaintiff apparently claims that the parole board’s release guidelines determination
entitled him to commutation of his sentence after serving twenty-two years. However, the Michigan
Constitution provides that the Governor has the exclusive power to grant commutations and pardons:
The governor shall have power to grant reprieves, commutations and pardons after
convictions for all offenses, except cases of impeachment, upon such conditions and
limitations as he may direct, subject to procedures and regulations prescribed by law.
He shall inform the legislature annually of each reprieve, commutation and pardon
granted, stating reasons therefor.
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Mich. Const. 1963, art. 5, § 14. Moreover, as Plaintiff’s exhibits indicate, the Governor’s
constitutional power to commute sentences is broadly discretionary; it is not constrained by the
parole board’s recommendation. (See Ex. A to Compl., docket #1-1, MDOC Policy Directive PDDWA-45.12 (Sept. 1, 1981) (“[T]he final decision as to whether commutation shall be granted on
each individual case rests solely with the Governor.”) (emphasis added); Ex. C to Compl., MDOC
Policy Directive PD-DWA-45.12 (Dec. 14, 1987) (same).) In light of that discretion, the Sixth
Circuit has concluded that Michigan prisoners do not have a state-created liberty interest in the
Michigan Parole Board’s procedures in recommending to the Governor whether a sentence should
be commuted. See Manning v. Unknown Parties, 56 F. App’x 710, 711 (6th Cir. 2003); Moran,
1996 WL 304344, at *2; Vertin v. Gabry, No. 94–2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18,
1995); see also Goree v. Burt, No. 05–CV–74592, 2006 WL 3832814, at *1 (E.D. Mich. Dec. 28,
2006) (rejecting Plaintiff Goree’s claim that Policy Directive 45.12 creates a liberty interest in
eligibility for sentence commutation). Thus, as the Court in Dumschat concluded with respect to
Connecticut’s commutation procedures, a Michigan “felon’s expectation that a lawfully imposed
sentence will be commuted or that he will be pardoned is no more substantial than an inmate’s
expectation . . . that he will not be transferred to another prison; it is simply a unilateral hope.”
Dumschat, 452 U.S. at 465 (footnote omitted). Therefore, because Plaintiff has not identified a
protected interest at stake, he fails to state a due process claim.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b).
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
$455.00 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 $455.00 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.
Dated:
October 18, 2012
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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