Murphy v. MO Dept of Corr

Filing 39

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to enforce settlement agreement and for additional declaratory relief [Doc. #29] is granted in part and denied in part. IT IS FURTHER ORDERED that plaintiffs motion for default judgm ent [Doc. #33] is denied as moot. IT IS FURTHER ORDERED that, not later than 14 days from the date of this order, the Missouri Department of Corrections shall expunge the conduct violation report issued to plaintiff on May 21, 1984, from any and all files maintained by the Department of Corrections, including but not limited to plaintiffs institutional file and parole records. The Department of Corrections shall immediately thereafter file a verified statement that the CVR was expunged, desc ribing the process by which it was expunged, and listing all of the records that were examined and from which the CVR was expunged. IT IS FURTHER ORDERED that the Department of Corrections shall immediately instruct the Parole Board that the expunge d CVR may not be considered at any parole hearing scheduled for plaintiff and shall provide a copy of this order to the chair and members of the Parole Board. IT IS FURTHER ORDERED that, not later than 60 days from the date of this order, the Parole Board shall hold a parole hearing for plaintiff. Within 14 days of the date of the hearing, the Department of Corrections shall file a statement certifying that the parole hearing was held. Signed by District Judge Carol E. Jackson on 2/18/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MICHAEL MURPHY,
Plaintiff,
vs.
MISSOURI DEPARTMENT OF
CORRECTIONS,
Defendant.

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No. 2:84-CV-92 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions to enforce settlement
agreement and for default judgment.
I.

Background

Plaintiff Michael Murphy is presently incarcerated at the Jefferson City
Correctional Center. At the time of the events giving rise to the underlying dispute,
plaintiff, a member of the Aryan Nations Church of Jesus Christ Christian, was
incarcerated at the Missouri Training Center for Men (MTCM).1 On May 21, 1984, he
was issued a conduct violation report (CVR) for conspiracy to commit riot for
“actively engaging in recruitment of other inmates into a racial group which
advocates supremacy of the white race only, and is of a violent nature.” According
to the CVR, plaintiff was “a member of several organizations which advocate the
overthrow of all races except the white race.” The CVR also stated that plaintiff
participated in “several meetings of three or more persons who are also known
members or supporters of the idealism of white supremacy.” These actions created

1

MTCM was a medium security institution.

“a grave risk or alarm . . . contrary to the good order and security of the
institution.” CVR [Doc. #6-2 at 2-3]. The Board of Adjustment found plaintiff guilty
of the violation and recommended that he be transferred to the Missouri State
Penitentiary, a maximum security facility. The superintendent approved the
transfer. See Adjustment Board report [Doc. #6-2 at 6].
Plaintiff filed this 42 U.S.C. § 1983 action2 alleging, inter alia, that he was
transferred in retaliation for his religious beliefs. The district court dismissed
plaintiff’s complaint as legally frivolous under 28 U.S.C. § 1915(d). The Eighth
Circuit Court of Appeals reversed and remanded. Murphy v. Missouri Dep’t of
Correction, 769 F.2d 502, 503 (8th Cir. 1985) (“Murphy may be able to prove that
his transfer was motivated by the prison officials’ desire to punish him for protected
activity.”) After remand, the parties entered into a settlement agreement in which
plaintiff agreed to dismiss his claims with prejudice and to refrain from requesting a
return to MTCM, and the defendants agreed to expunge the May 21, 1984, CVR
from “any and all files and records maintained by any of said defendants, including
but not limited to plaintiff’s institutional file and parole records.”3 Id. at § III. On
May 24, 1986, the Court signed the parties’ settlement agreement and dismissed
the case. See Order, Pl. Ex. 2 [Doc. #30-2]; docket sheet, Pl. Ex. 5 [Doc. #30-5].
On July 1, 2015, plaintiff filed a pro se motion for order to show cause why
defendant Missouri Department of Corrections should not be held in contempt for
2

In 1984, the defendants were the Director of the Missouri Department of Corrections and
Human Resources, the Director of the Division of Adult Institutions, the Warden and
Casework Supervisor at the Missouri State Penitentiary, the Superintendent of the Missouri
Training Center for Men MTCM), and various correctional officers and caseworkers at MTCM.
See Order at § II(B) [Doc. #6-1]. For the purposes of the present motions, the sole
defendant is the Department of Corrections.
3

Defendants also agreed to restore an individual to plaintiff’s visitor list.

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failing to comply with the terms of the settlement agreement. Plaintiff asserts that
the CVR was not expunged from his record and that the Parole Board considered
the CVR in denying him parole in 2000, 2005, 2010, and 2013.4
On November 4, 2015, defendant filed a response to plaintiff’s motion,
acknowledging that the CVR is still in plaintiff’s record. In an affidavid, assistant
warden Billy Dunbar states that he started “the expungement process” on October
28, 2015. Def. Ex. A [Doc. #18-1]. Defendant has presented no explanation for
why the CVR was not expunged earlier, what the expungement process entails, or
how long the process is expected to take. Concerned by the lack of detail in
defendant’s response, the Court appointed counsel to represent plaintiff.
On January 4, 2016, appointed counsel filed an amended motion to enforce
the settlement agreement and for additional declaratory relief. Plaintiff asks the
Court to order the Parole Board to conduct a parole hearing within 30 days and to
instruct the board that it may not consider plaintiff’s religious affiliations or beliefs
or expunged records.5 On January 19, 2015, the defendant requested an extension
of time to respond to plaintiff’s motion in order to “determin[e] the feasibility of
providing an expedited parole hearing, including ascertaining dates for a potential
expedited parole hearing.” Defendant was granted an extension until February 2,
2016, but failed to file its response by that date.
On February 4, 2016, plaintiff moved for default judgment. In a response
filed on February 8, 2016, the defendant states that the Missouri Division of Adult
4

Plaintiff filed a motion to vacate the settlement in 1987. The court construed the motion as
a motion to alter or amend judgment under Fed.R.Civ.P. 59(e) and denied it as untimely. Pl.
Exs. 3 and 4 [Docs. #30-3 and #30-4].
5
Plaintiff states that he was asked about his membership in the Aryan Nation at parole
hearings in 2013. Affidavit at ¶5 [Doc. #6-3].

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Institutions has recommended that plaintiff receive an expedited parole hearing.
However, defendant “cannot state when or how the Parole Board will act upon that
recommendation.” In the event the Court grants plaintiff’s motion, defendant asks
for an additional 60 days to conduct a parole hearing. Defendant does not state
whether the CVR has been expunged.
II.

Discussion

The parties’ settlement agreement was adopted by the Court as the final
order of the case, thereby incorporating the settlement terms in the dismissal
order. The Court thus has ancillary jurisdiction to rule on plaintiff’s motion to
enforce. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)
(district court has post-dismissal ancillary jurisdiction to enforce settlement
agreement only if parties’ obligation to comply with terms of agreement has been
made part of dismissal order either by separate provision or by incorporating terms
of agreement in order).
The defendant does not dispute that it is in breach of the settlement
agreement. Therefore, the Court will direct defendant to immediately expunge the
CVR “from any and all files and records” maintained by the Department of
Corrections, “including but not limited to plaintiff’s institutional file and parole
records.” See Order at § III(1). Defendant also does not dispute that the Parole
Board considered the improper CVR in deciding whether or not plaintiff should be
released on parole, or that plaintiff is entitled to a parole hearing at which the
expunged CVR is not considered. See Lowrance v. Coughlin, 862 F. Supp. 1090,
1120 (S.D.N.Y. 1994) (plaintiff entitled to a new parole hearing based on accurate
information). Although plaintiff request that a hearing be held within 30 days, the
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Court will allow defendant 60 days in order to ensure that the CVR has been
expunged from all records, including those maintained by the Parole Board.
The Parole Board may not consider the expunged CVR in determining
plaintiff’s eligibility for parole. However, plaintiff’s request that the Court instruct
the Parole Board not to consider his religious affiliations or beliefs exceeds the
scope of the settlement agreement. As the Parole Board undoubtedly knows,
constitutional principles impose constraints on the factors it can consider. See
Granguillhome v. Utah Bd. of Pardons & Parole, No. 204-CV-260 TC, 2006 WL
3672901, at *2 (D. Utah Dec. 8, 2006) (government entity “may not compel
affirmation of religious belief, punish the expression of religious doctrines it believes
to be false, impose special disabilities on the basis of religious views or religious
status, or lend its power to one or the other side in controversies over religious
authority or dogma.”) (quoting Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U.S. 872, 877 (1990) (internal citations omitted)).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to enforce settlement
agreement and for additional declaratory relief [Doc. #29] is granted in part and
denied in part.
IT IS FURTHER ORDERED that plaintiff’s motion for default judgment [Doc.
#33] is denied as moot.
IT IS FURTHER ORDERED that, not later than 14 days from the date of this
order, the Missouri Department of Corrections shall expunge the conduct violation
report issued to plaintiff on May 21, 1984, from any and all files maintained by the
Department of Corrections, including but not limited to plaintiff’s institutional file
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and parole records.

The Department of Corrections shall immediately thereafter

file a verified statement that the CVR was expunged, describing the process by
which it was expunged, and listing all of the records that were examined and from
which the CVR was expunged.
IT IS FURTHER ORDERED that the Department of Corrections shall
immediately instruct the Parole Board that the expunged CVR may not be
considered at any parole hearing scheduled for plaintiff and shall provide a copy of
this order to the chair and members of the Parole Board.
IT IS FURTHER ORDERED that, not later than 60 days from the date of this
order, the Parole Board shall hold a parole hearing for plaintiff. Within 14 days of
the date of the hearing, the Department of Corrections shall file a statement
certifying that the parole hearing was held.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of February, 2016.

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