Brown #204253 v. Michigan Parole Board et al

Filing 11

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 and dismissing plaintiff's complaint for failure to state a claim. This dismissal shall count as a strike for purposes of 28 U.S.C. 1915(g) ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

D E M E T R IU S BROWN, P l a in tif f , F ile No. 2:08-cv-161 v. H O N . ROBERT HOLMES BELL M IC H IG A N PAROLE BOARD, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER A D O P T I N G THE REPORT AND RECOMMENDATION O n August 8, 2008, United States Magistrate Judge Timothy P. Greeley issued a R e p o rt and Recommendation ("R&R"), recommending that Plaintiff Demetrius Brown's 42 U .S .C . § 1983 prisoner civil rights action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1 9 1 5 A (b ), and 42 U.S.C. § 1997e(c), for failure to state a claim. (Dkt. No. 4.) Plaintiff filed o b je c tio n s to the R&R on August 18, 2008, and supplemental objections on August 27, 2008. (Dkt. Nos. 7, 8.) For the reasons that follow, Plaintiff's objections are denied and the R&R is adopted as the opinion of the Court. T h is Court is required to make a de novo determination of those portions of an R&R to which specific objections are made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b).

P la in tif f contends that he was charged with murder, but convicted of a lesser charge o f assault with intent to commit murder. Plaintiff claims that his Fourteenth Amendment due p ro c e ss rights and Fifth Amendment right against self-incrimination were violated as a result o f his remaining silent at his parole hearing regarding his involvement in offenses for which h e was charged but not convicted; he contends that this silence was used as a basis to deny p a r o le . The R&R dismissed Plaintiff's claim under the Fourteenth Amendment because P la in t if f does not have a liberty interest in parole. The Court concurs with those conclusions. P la in t if f also contends that he was improperly denied parole based on false in f o rm a tio n . However, Plaintiff does not have a constitutional right to a parole decision b a se d on accurate information; even if the parole board relied on inaccurate information to d e n y parole, "thereby treating [Plaintiff] unfairly during the parole process," Plaintiff's claim f a ils because he "has no constitutionally-protected liberty interest in the granting of parole o r the following of parole procedures." Caldwell v. McNutt, 158 F. App'x 739, 741 (6th Cir. 2 0 0 6 ) (citing Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994)). Similarly, Plaintiff's claims that the parole board violated its internal rules and p roc ed u res by denying parole based on charged crimes that did not result in a conviction are n o t, in themselves, cognizable under § 1983. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th C ir.1 9 9 5 ); see also Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.1994) ("That Michigan p a ro le authorities `arbitrarily' failed to follow their own state procedural standards could co n stitute a violation of state law but not federal law.").

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P lain tiff also fails to state a claim for a substantive due process violation. Plaintiff's re lia n c e on Block v. Potter, 631 F.2d 233 (3d Cir. 1980), is misplaced. Plaintiff argues that, u n d e r the rationale in Block, the arbitrary and capricious actions of Defendants in denying h im release on parole violates Plaintiff's substantive due process rights. However, the re a so n in g in Block that an arbitrary parole decision can violate substantive due process rights, e v e n in the absence of an identifiable liberty interest in parole, has not been adopted by the S ix th Circuit. Bell v. Anderson, 310 F. App'x 459, 462 (6th Cir. 2008). Moreover, the p a ro le board's actions in the instant case do not "shock the conscience"; the standard for a rb itra ry conduct violating substantive due process rights is "an exceptionally high one." Id. P la in tif f does not contend, as did the plaintiff in Block, that he was denied parole because of h is race or because of any other constitutionally impermissible factor. See id. (distinguishing B lo c k ) . T h e R&R did not address Plaintiff's Fifth Amendment claim; however, this claim is a ls o without merit. The Supreme Court has held that a voluntary parole interview does not " c o m p e l" a respondent to speak such that it would violate the prisoner's Fifth Amendment rig h t against self-incrimination. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1 9 9 8 ); see also Hawkins v. Morse, No. 98-2062, 1999 WL 1023780, at *2 (6th Cir. Nov. 4, 1 9 9 9 ) (unpublished) (applying Woodard to the Michigan parole system). T h e R&R also did not address Plaintiff's claim that Mich. Comp. Laws § 791.234(11) v io la te s the Ex Post Facto Clause. Prior to amendment in 1999, a parole board decision was

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a p p e ala b le by the prisoner, prosecutor, or the victim of the crime for which the prisoner was co n v icted . Mich. Comp. Laws § 791.234(7) (West 1998). In 1999, the Michigan Legislature am en d ed the statute to allow for appeals only by the prosecutor or the victim in cases where p a ro le is granted. Mich. Comp. Laws § 791.234(9) (West 2000). The section allowing a p p e a ls is currently set forth in Mich. Comp. Laws § 791.234(11) (West 2009). In response to the 1999 amendment, the Michigan Supreme Court amended Michigan Court Rule 7.104 to eliminate the provisions regarding the methods by which a prisoner could appeal a parole d e n ia l. See Mich. Ct. R. 7.104(D) (West 2009). In addition, the Michigan Court of Appeals h a s held that a prisoner may not appeal the denial of parole under the Administrative P r o c e d u re s Act, Mich. Comp. Laws § 24.201, or the Revised Judicature Act, Mich. Comp. L a w s § 600.631. Morales v. Michigan Parole Bd., 676 N.W.2d 221, 227-30 (Mich. App. 2 0 0 3 ). A new parole-related rule or regulation implicates the Ex Post Facto Clause when " re tro a c tiv e application of the change creates a sufficient risk of increasing the measure of p u n is h m e n t attached to the covered crimes." Garner v. Jones, 529 U.S. 244, 250 (2000). The e lim in a tio n of a right to appeal a denial of parole does not create a significant risk of in c re a sin g the measure of punishment attached to covered crimes. Thus, Plaintiff cannot e s ta b lis h an Ex Post Facto violation as a result of changes to Mich. Comp. Laws § 791.234(11).

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P l a i n tif f also claims that he was denied parole in retaliation for exercising his Fifth A m e n d m e n t right against self-incrimination. To succeed on his claim of retaliation under th e First Amendment, Plaintiff must show: (1) that he engaged in protected activity; (2) that a n adverse action was taken against him that would deter a person of ordinary firmness from c o n tin u in g to engage in that conduct; and (3) that the adverse action was motivated, at least in part, by Plaintiff's protected activity. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1 9 9 9 ) (en banc). However, Plaintiff's right against self-incrimination under the Fifth A m e n d m e n t is not implicated in a parole interview, and the Court is not aware of any p r e c e d e n t holding that silence in such circumstances is "protected conduct" under the First A m e n d m e n t . Because Plaintiff cannot establish that he engaged in protected conduct, his c laim of retaliation is without merit. F in a lly, the Magistrate Judge determined that Plaintiff cannot sue the Michigan Parole B o a rd because it is immune from suit under the Eleventh Amendment. Plaintiff argues that th e Court cannot summarily dismiss a claim on this basis without service on Defendants b e c au s e immunity is an affirmative defense. However, the Court may dismiss a § 1983 a c tio n "at any time" if it determines that the action "seeks monetary relief against a defendant w h o is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i); 42 U.S.C. § 1997e(c)(1). F o r the foregoing reasons, Plaintiff's objections will be denied and the R&R will be a d o p ted as the opinion of the Court. A c c o r d i n g l y,

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I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 7, 8) are DENIED. I T IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 4), a s supplemented by the foregoing opinion, is APPROVED and ADOPTED as the opinion o f this Court. I T IS FURTHER ORDERED that Plaintiff Demetrius Brown's complaint is D I S M I S S E D for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 4 2 U.S.C. § 1997e(c). I T IS FURTHER ORDERED that this dismissal shall count as a STRIKE for p u rpo ses of 28 U.S.C. § 1915(g). I T IS FURTHER ORDERED that the Court finds no good-faith basis for appeal w ith in the meaning of 28 U.S.C. § 1915(a)(3).

Dated: March 25, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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