Sanders #215123 v. Sampson et al

Filing 10

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

HOWARD SANDERS #215123, Plaintiff, v. BARBARA SAMPSON, et al., Defendants. _____________________________/ OPINION This is a civil rights action brought by a state prisoner pursuant to 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; 42 U.S.C. § 1997e(c). 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. Discussion I. Factual allegations Case No. 2:09-cv-176 Honorable Gordon J. Quist

Plaintiff Howard Sanders, an inmate at the Kinross Correctional Facility (KCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Parole Board

Chairman Barbara Sampson, MDOC Director Patricia L. Caruso, and KCF Warden Jeffrey Woods. Plaintiff states that on February 4, 1991, he was convicted of second degree murder, felony firearm and attempted murder in the Genessee County Circuit Court. Plaintiff alleges that he came under the jurisdiction of the Parole Board on March 1, 1995, and that under the established procedure of the Board, he is entitled to an interview. Plaintiff states that he has never had such an interview because in 1992, Former Governor John Engler changed the provisions governing parole interviews, placing Plaintiff at a "disadvantage" in obtaining an interview. In 1999, state law was again changed, further disadvantaging Plaintiff's ability to obtain a parole interview. Plaintiff asserts that the parole guidelines in effect at the time he was sentenced would have allowed him to have his first parole interview after serving 4 years, and every 2 years thereafter. Plaintiff claims that the changes in the state law governing the frequency of parole interviews have violated his constitutional rights. declaratory and injunctive relief. II. Failure to state a claim Plaintiff is seeking damages, as well as

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 Atlantic 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, 129 S. Ct. 1937, 1949 (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 -2-

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." Ashcroft, 129 S. Ct. at 1949. 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." Ashcroft, 129 S. Ct. at 1949 (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." Ashcroft, 129 S. Ct. at 1950 (quoting FED. R. CIV . P. 8(a)(2)). 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); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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). Initially, the court notes that Plaintiff's claims are barred by the statute of limitations. State statutes of limitations and tolling principles apply to determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See MICH. COMP. LA W S § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir.1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, *1 (6th Cir. Feb. 2, 1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer, -3-

98 F.3d at 220.1 Plaintiff's complaint is untimely. He asserts claims arising in 1992 and 1999, when the provisions governing the frequency of parole interviews were changed. Plaintiff had reason to know of the "harms" done to him at the time they occurred. Hence, his claims accrued in 1992 and 1999. However, he did not file his complaint until August 11, 2009, well past Michigan's three-year limit. Moreover, Michigan law no longer tolls the running of the statute of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9). Further, it is well-established that ignorance of the law does not warrant equitable tolling of a statute of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir.1991); Mason v. Dep't of Justice, No. 01-5701, 2002 WL 1334756, *2 (6th Cir. June 17, 2002). A complaint "is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint does not present a rational basis in law if it is time-barred by the appropriate statute of limitations. The Sixth Circuit has repeatedly held that when a meritorious affirmative defense based upon the applicable statute of limitations is obvious from the face of the complaint, sua sponte dismissal of the complaint is appropriate. See Dellis v. Corrections Corp. of America, 257 F.3d 508, 511 (6th Cir. 2001); Beach v. Ohio, No. 033187, 2003 WL 22416912, at *1 (6th Cir. Oct. 21, 2003); Castillo v. Grogan, No. 02-5294, 2002 WL 31780936, at *1 (6th Cir. Dec. 11, 2002); Duff v. Yount, No. 02-5250, 2002 WL 31388756, at *1-2 (6th Cir. Oct. 22, 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653 (6th Cir. Dec. 5, 2000). Accordingly, Plaintiff's action must be dismissed as frivolous.

1 28 U.S.C. § 658 created a "catch-all" limitations period of four years for civil actions arising under federal s ta t u te enacted after December 1, 1990. The Supreme Court's decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 3 6 9 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981 d o e s not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil r i g h t s actions under § 1983 were not "made possible" by the amended statute. Id. at 382.

-4-

In addition, even if Plaintiff's complaint was not barred by the statute of limitations, it fails to state a claim. Plaintiff claims that the statutory amendments to MCL § 791.234 in 1992 and 1999 violated the Ex Post Facto Clause of the United States Constitution. "Retroactive application of parole provisions falls within the ex post facto prohibition if such an application creates a `sufficient risk of increasing the measure of the punishment attached to the covered crimes.' " Dyer v. Bowlen, 465 F.3d 280, 285 (6th Cir.2006) (quoting Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000)). "To fall within the ex post facto prohibition, two elements must be present: (1) the law must apply to events occurring before its enactment, and (2) it must disadvantage the offender affected by it." United States v. Reese, 71 F.3d 582, 585 (6th Cir.1995). A petitioner challenging the retroactive application of parole provisions can sustain his or her burden in one of two ways. "First, [a petitioner] ... can show that the [challenged parole provisions], on their face, show a significant risk of increased incarceration." Michael v. Ghee, 498 F.3d 372, 384 (6th Cir.2007). Second, "[w]hen the [challenged parole provision] do[es] not by [its] own terms show a significant risk, the [petitioner] must demonstrate, by evidence drawn from the [provision's] practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." Garner, 529 U.S. at 255. Murray v. Bergh, 2009 WL 2135047, slip op. p. 3. At the time that Plaintiff was convicted, MCL § 791.234(4) stated: A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substances offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions: (a) One member of the parole board shall interview the prisoner at the conclusion of 4 calendar years of the sentence and biennially thereafter. Riley v. Parole Board, 216 Mich. App. 242, 244-45, 548 N.W.2d 686, 688 (1996). In 1992, subsection 4(a), which became subsection 6(a), to state that the parole board shall interview a -5-

prisoner only at the conclusion of 10 years and every 5 years thereafter. Id. Pursuant to the pre1992 statute, a prisoner such as Plaintiff was only eligible for parole after serving 10 years of his sentence. In addition, the 1992 amendment retained the 10 year eligibility requirement for prisoners sentenced for crimes committed before October 1, 1992. Id. According to his complaint, Plaintiff was sentenced for crimes committed before October 1, 1992. Therefore, the 1992 amendment did not affect Plaintiff's substantive rights and does not implicate the Ex Post Facto Clause. Plaintiff also claims that the 1999 amendment to 791.234 violated his right under the Ex Post Facto Clause. In 1999, the Michigan Legislature eliminated the ability of a prisoner to appeal a parole denial. As noted above, in order to succeed on this claim, Plaintiff must show that the elimination of the prisoner's right to appeal a parole denial, on its face, significantly increases the risk of longer incarceration, or that its retroactive application will result in a longer period of incarceration than under the earlier rule. Plaintiff has failed to meet either of these factors. Therefore, this claim is properly dismissed. Plaintiff also claims that the 1992 and 1999 changes in the law governing parole violates his due process rights. To sustain such a claim, Plaintiff must first establish that eligibility for parole is a recognized liberty interest, entitled to protection by the Due Process Clause. Meachum v. Fano, 427 U.S. 215, 224 (1976); see Bd. of Pardons v. Allen, 482 U.S. 369 (1987). A prisoner's unilateral expectation, particularly where prison officials retain complete discretion regarding an ultimate determination, does not create a constitutionally protected entitlement or liberty interest. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Liberty interests may arise from the Constitution itself or from the provisions of state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983). A prisoner has no constitutional or inherent right to be released on parole before the expiration of the prisoner's sentence. Greenholtz v. Inmates -6-

of the Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). The state is therefore free to institute parole systems, but it has no duty to do so. Id.; see Rose v. Haskins, 388 F.2d 91, 93 (6th Cir. 1968). A prisoner has a liberty interest in the possibility of parole if, but only if, state law creates a legitimate expectation of parole release by the use of mandatory language limiting the discretion of the Parole Board. See Allen, 482 U.S. at 373-75. In the absence of a state-created liberty interest, the Parole Board can deny release on parole for any reason or no reason at all, and the Due Process Clause has no application. See Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 236 (6th Cir. 1991). In numerous cases, this court has reviewed Michigan law and has found a complete absence of mandatory language or the imposition of substantive predicates restricting the Parole Board's discretion. Michigan statutes merely define those prisoners not eligible for parole and list factors that the Parole Board may or may not consider in its decision to grant or deny parole, without directing a specific result. See MICH. COMP. LAWS §§ 791.233b, .234, .235. No statutory provision requires parole for any eligible prisoner under any circumstances. The statute makes release on parole expressly discretionary. MICH. COMP. LAWS § 791.234(7). Relying upon these provisions of Michigan law, the Sixth Circuit Court of Appeals has authoritatively held that the Michigan system does not create a liberty interest in parole. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc). In unpublished decisions following Sweeton, the Sixth Circuit has repeatedly held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Fifer v. Michigan Dep't of Corr., No. 96-2322, 1997 WL 681518, at *1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, -7-

1995); Janiskee v. Michigan Dep't of Corr., No. 91-1103, 1991 WL 76181, at *1 (6th Cir. May 9, 1991); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. April 10, 1990). Further, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Michigan Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Conclusion Having conducted the review now 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), and 42 U.S.C. § 1997e(c). 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: November 10, 2009

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

-8-