Schoenfeld #227495 v. Caruso et al

Filing 2

OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb)

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Schoenfeld #227495 v. Caruso et al Doc. 2 Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 1 of 6 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DANIEL HENRY SCHOENFELD, ) ) Plaintiff, ) ) v. ) ) PATRICIA CARUSO, et al., ) ) Defendants. ) ____________________________________) Case No. 5:06-cv-30 Honorable Richard Alan Enslen OPINION This is a civil rights action brought by a state prisoner pursuant to 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. 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, the Court will dismiss Plaintiff's Complaint for failure to state a claim. Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 2 of 6 Discussion I. Factual Allegations Plaintiff is incarcerated in the Deerfield Correctional Facility. He is serving a sentence of 14 to 42 years imposed by the Macomb County Circuit court after Plaintiff pled guilty to one count of first-degree criminal sexual conduct. The instant Complaint concerns the denial of Plaintiff's parole by the Michigan Parole Board ("MPB"). Plaintiff sues Patricia Caruso, Director of the Michigan Department of Corrections ("MDOC"); John S. Rubitschun, Chairman of the MPB; and Miguel Berrios, Member of the MPB. The MPB has denied Plaintiff parole three times, most recently on February 9, 2005. The parole board must follow the parole guidelines promulgated by the MDOC. See MICH. COMP. LA W S 791.233(e)(5). The parole board may depart from the guidelines by denying parole to a prisoner who scores under the guidelines as having a high probability of parole, but any such departure "shall be for a substantial and compelling reason stated in writing." See MICH. COMP. LA W S 791.233(e)(6). Each time he was considered for parole, Plaintiff scored under the parole guidelines as having a high probability of parole. In denying Plaintiff's parole in 2005, the parole board provided the following substantial and compelling reason for departing from the parole guidelines: "During his PBI was unable to demonstrate the necessary insight into his sexually deviant behavior to lower his risk. P needs to raise his level of insight in this area." See 2/9/05 Parole Board Notice of Action, Ex. D. The 2005 parole decision was signed by Defendants Berrios and Rubitschun. Plaintiff asserts numerous violations of his due process rights in the parole proceedings. First, he claims that the parole board relied upon false and inaccurate information in -2- Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 3 of 6 denying his parole. For example, Plaintiff disputes the accuracy of the statement in the 2005 parole board decision that he has a history of "violent misdemeanors." Plaintiff contends that he was convicted of only one misdemeanor that was violent in nature. Plaintiff also disputes the substantial and compelling reason given by the parole board for denying his parole. According to Plaintiff, Defendant Berrios was belligerent and rude toward Plaintiff during the interview and continuously interrupted Plaintiff when he attempted to answer Berrios' questions. In addition, Plaintiff claims that the parole board inaccurately stated that he "has failed to provide a parole plan which would reduce the likelihood of additional criminal behavior - Has unrealistic assessment of addiction." Plaintiff contends that he presented an extensive parole plan. Plaintiff further claims that Defendants violated his due process rights when they failed to comply with state statutes and regulations governing parole determinations. Finally, Plaintiff claims that Defendants violated his due process rights by giving him a mental health score of (-5). Plaintiff seeks declaratory relief, as well as an injunction prohibiting Defendants from violating his constitutional rights or relying upon false information in future parole hearings.1 A challenge to the fact or duration of confinement should be brought as a petition for habeas corpus and is not t h e proper subject of a civil rights action brought pursuant to 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484, 493 ( 1 9 7 3 ) (the essence of habeas corpus is an attack by a person in custody upon the legality of that custody and the tr a d i tio n a l function of the writ is to secure release from illegal custody). The Supreme Court has held that a state prisoner c a n n o t make a cognizable claim under 1983 for an alleged unconstitutional conviction or for "harm caused by actions w h o s e unlawfulness would render a conviction or sentence invalid" unless a prisoner shows that the conviction or s e n te n c e has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. H u m p h r e y , 512 U.S. 477, 486-87 (1994); see also Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). However, in W ilk in s o n v. Dotson, 125 S. Ct. 1242, 1247 (2005), the Supreme Court clarified that 1983 remains available to a state p r i so n e r for procedural challenges where success in the action would not necessarily spell immediate or speedier release fo r the prisoner. Plaintiff does not directly seek release from prison; rather, he requests an injunction preventing D e fe n d a n t s from violating his federal rights in future parole proceedings. As a consequence, under Wilkinson, success in this action would not necessarily demonstrate the invalidity of Plaintiff's continued confinement, so his action does n o t appear to be Heck-barred. Assuming that Plaintiff's action is cognizable under 1983, it fails to state a claim as set fo r th herein. 1 -3- Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 4 of 6 II. Failure to State a Claim A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). 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). Plaintiff contends that Defendants violated his due process rights in his parole proceedings. There is no constitutional or inherent right to be conditionally released 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, and 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; 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 procedural authorities to deny parole," held that the Michigan system does not create a liberty interest in parole. Subsequent to its 1994 decision, the Sixth Circuit has recognized the continuing validity of Sweeton and has continued to find that Michigan's parole scheme creates no liberty interest in being released on parole. See Ward v. -4- Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 5 of 6 Stegall, No. 03-1804, 2004 WL 614581 (6th Cir. Mar. 24, 2004); Bullock v. McGinnis, No. 00-1591, 2001 WL 180978, at *2 (6th Cir. Feb. 14, 2001); Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *1 (6th Cir. Nov. 1, 2000); Hawkins v. Abramajtys, No. 99-1995, 2000 WL 1434695, at *2 (6th Cir. Sept. 19, 2000); Irvin v. Mich. Parole Bd., No. 99-1817, 2000 WL 800029, at *2 (6th Cir. June 14, 2000); Clifton v. Gach, No. 98-2239, 1999 WL 1253069, at *1 (6th Cir. Dec. 17, 1999). Also, in unpublished decisions, the Sixth Circuit has held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Carnes v. Engler, No. 03-1212, 2003 WL 22177118 (6th Cir. Sept. 19, 2003); Fifer v. Mich. Dep't of Corr., No. 962322, 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); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Janiskee v. Mich. Dep't of Corr., No. 91-1103, 1991 WL 76181, at *1 (6th Cir. May 9, 1991); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. Apr. 10, 1990). Finally, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Because Plaintiff has no liberty interest at stake, he fails to state a claim for a violation of his due process rights.2 Even if Plaintiff possessed a liberty interest in parole, he fails to state a due process claim against Defendant C a r u s o . Plaintiff sues Caruso because of her "authority" over the Michigan Parole Board. He does not make any specific fa c t u a l allegations against her. A claimed constitutional violation must be based upon active unconstitutional behavior. G r e e n e v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one's subordinates are not enough, nor can supervisory l i a b i l it y be based upon the mere failure to act. Id.; Summer v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Plaintiff has f a i l e d to allege that Defendant Caruso engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against her. 2 -5- Case 5:06-cv-00030-RAE-ESC Document 2 Filed 02/22/2006 Page 6 of 6 Conclusion Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Plaintiff's action fails to state a claim and will therefore be dismissed pursuant to 28 U.S.C. 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 $255 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 $255 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. /s/ Richard Alan Enslen RICHARD ALAN ENSLEN SENIOR UNITED STATES DISTRICT JUDGE DATED in Kalamazoo, MI: February 22, 2006 -6-

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