Alspaugh #852435 v. Michigan Parole Board et al

Filing 6

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
ANDREW ALSPAUGH,
Plaintiff,
v.

Case No. 2:18-cv-52
Honorable Gordon J. Quist

MICHIGAN PAROLE BOARD et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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, the Court will dismiss Plaintiff’s complaint for failure to state a claim.
Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. The
events about which he complains occurred at that facility. Plaintiff sues the Michigan Parole

Board, MDOC Hearing Officer / Parole Board Member Jerome L. Warfield, Sr., and Michigan
Parole Board Member Melissa K. Jennings.
Plaintiff alleges that he was sentenced on December 3, 2014, pursuant to a plea
agreement. On January 8, 2018, Plaintiff had a Parole Board interview. Plaintiff’s early release
date of May 26, 2018, was questioned during the interview. On February 21, 2018, Plaintiff
received a continuance for twelve months, with a reconsideration date of May 26, 2019. Plaintiff
claims that this decision violated his plea agreement. Plaintiff attempted to grieve the denial of
parole, but his grievance was rejected as nongrievable, which Plaintiff claims violated his First
Amendment rights.
Plaintiff further states that his Parole Eligibility Report indicates that he had a score
of 16, which shows a high probability of parole. Plaintiff asserts that Michigan law allows a denial
of parole where a prisoner has such a score only when there are substantial and compelling reasons
to do so. Plaintiff states that there is no formal appeal process for the denial of parole. Plaintiff
claims that Defendants’ decision to deny him parole violated his Fourteenth Amendment due
process rights.
Plaintiff seeks an order requiring Defendants to honor his plea agreement and to
provide an appeal process for the denial of parole. Plaintiff also seeks $3,500 in damages for each
day he remains incarcerated after the date of May 26, 2018.
II.

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, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include

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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)).
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).

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III.

Analysis

Initially the Court notes that Plaintiff is suing the Michigan Parole Board. The
Michigan Parole Board is part of the Michigan Department of Corrections. Mich. Comp. Laws §
791.231a(1). Regardless of the form of relief requested, the states and their departments are
immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived
immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438
U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not
expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332,
341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick
v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). Therefore, the Michigan Parole Board, as part of
the Michigan Department of Corrections, is immune from injunctive and monetary relief. See
Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) (Michigan Parole Board entitled to
Eleventh Amendment immunity); Lee v. Mich. Parole Bd., 104 F. App’x 490, 492 (6th Cir. 2004)
(same); Fleming v. Martin, 24 F. App’x 258, 259 (6th Cir. 2001) (same).
Plaintiff claims that Defendant violated his due process rights by failing to provide
valid substantial and compelling reasons for departing from the parole guidelines when denying
his parole. 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 raise a claim of constitutional magnitude because he has no liberty interest
in being released on parole. There is no constitutional or inherent right to be conditionally released

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before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so; thus,
the presence of a parole system by itself does not give rise to a constitutionally protected liberty
interest in parole release. Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather,
a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of
Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc), the Sixth
Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the
Michigan system does not create a liberty interest in parole. The Sixth Circuit reiterated the
continuing validity of Sweeton in Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011). In Crump,
the court held that the adoption of specific parole guidelines since Sweeton does not lead to the
conclusion that parole release is mandated upon reaching a high probability of parole. See id.; see
also Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has
rejected the argument that the Due Process Clause is implicated when changes to parole procedures
and practices have resulted in incarcerations that exceed the subjective expectation of the
sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan
Supreme Court has recognized that there exists no liberty interest in parole under the Michigan
system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999).
Until Plaintiff has served his maximum sentence, he has no reasonable expectation
of liberty. The discretionary parole system in Michigan holds out “no more than a mere hope that
the benefit will be obtained.” Greenholtz, 442 U.S. at 11. The Michigan Parole Board’s failure
or refusal to consider Plaintiff for parole, therefore, implicates no federal right. In the absence of
a liberty interest, Plaintiff fails to state a claim for a violation of his procedural due process rights.

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Finally, Plaintiff claims that the rejection of his grievance violated his rights under
the First Amendment. However, “[a] prisoner’s constitutional right to assert grievances typically
is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice
their complaints to, and seek relief, from prison officials’ while leaving a formal grievance
procedure intact.” Griffin v. Berghuis, 563 Fed. App’x 411, 415-416 (6th Cir. 2014) (citing Jones
v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n. 6 (1977)). Indeed, Plaintiff’s
ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v.
DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented
from filing a grievance, his right of access to the courts to petition for redress of his grievances
(i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances,
and he therefore cannot demonstrate the actual injury required for an access-to-the-courts claim.
See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430
U.S. 817, 821-24 (1977). The exhaustion requirement only mandates exhaustion of available
administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to
the grievance process, the process would be rendered unavailable, and exhaustion would not be a
prerequisite for initiation of a civil rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59
(2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the
interference of officials, the grievance process is not available and exhaustion is not required);
Kennedy v. Tallio, 20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds
that Plaintiff fails to state a cognizable claim.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 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
$505.00 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 $505.00 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: September 7, 2018

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

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