Brown et al v. Precythe et al

Filing 64

ORDER by Judge Nanette K. Laughrey. Defendants' motion to dismiss, Doc. 23 , is denied, and Plaintiffs' motion for leave to amend, Doc. 48 , is granted. Plaintiffs must file the amended complaint within 5 days of the entry of this order . The Court orders Defendants to produce to Plaintiffs, within 10 days of entry of this order, all of the following documents and information: (1) recordings of Plaintiffs' parole hearings; (2) Plaintiffs' parole files, including notes an d memoranda created by the Board or parole staff; and (3) information regarding who participated in Plaintiffs' parole hearings and parole-related decisions, and in what capacity. Further, the Court orders Defendants to provide to the Court for in camera inspection, within 10 days of entry of this order, an unredacted copy of the Inspector General's Investigation Report. If the Court determines that Plaintiffs are entitled to review any portion of that report that has been redacted, the Court will notify the parties and permit Defendants an opportunity to designate the document as appropriate in accordance with the protective order.(Sreeprakash, Netra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
NORMAN BROWN, et al.,
Plaintiffs,
v.
ANNE L. PRECYTHE, et al.,
Defendants.

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No. 2:17-cv-04082-NKL

ORDER
Plaintiffs Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland are
serving Missouri prison sentences for first-degree murder offenses committed when they were
less than 18 years of age. Each originally received a sentence of life without the possibility of
parole. However, the United States Supreme Court recently held that a mandatory sentence of
life without parole for a person who was under the age of 18 when he committed the offense
violates the Eighth Amendment prohibition on cruel and unusual punishment. After the Supreme
Court clarified that this holding applies retroactively, the Missouri legislature enacted a law
permitting those who had been convicted to life without the possibility of parole for offenses
they committed as juveniles to petition for parole after serving 25 years in prison. Each of the
plaintiffs then petitioned for, but was denied, parole. Each is scheduled for reconsideration of
the parole determination in five years.
Plaintiffs allege in their first amended complaint that Missouri’s parole policies and
practices violate their rights to be free from cruel and unusual punishment and their rights to due
process under the Constitutions of both the United States and Missouri. They sue the Director of
the Missouri Department of Corrections and members of the Missouri Board of Probation and

Parole (the “Board”), seeking declaratory and injunctive relief. Plaintiffs seek to represent a
class of offenders sentenced to life without parole for crimes committed as juveniles.
Defendants have moved to dismiss and Plaintiffs have moved for leave to file a second
amended complaint to add a new count for declaratory judgment concerning Defendants’ alleged
failure to satisfy Missouri Revised Statutes Sections 558.047.5 and 565.033.2. Plaintiffs also
seek to compel production of certain categories of information that Defendants object to
producing.
I.

The Legal Background
a. Constitutional Limitations on Sentences for Juveniles

The bar in the U.S. Constitution’s Eighth Amendment against cruel and unusual
punishment prohibits subjecting an individual “to excessive sanctions.” Roper v. Simmons, 543
U.S. 551, 560 (2005). In a series of cases over the last eight years, the United States Supreme
Court has concluded that the imposition of the sentence of life without parole on those who were
under the age of eighteen when they committed an offense generally violates this prohibition.
First, in Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court held that sentencing
juvenile, non-homicide offenders to life without the possibility of parole violates the Eighth
Amendment. Subsequently, in Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held
that mandatory life without parole for juvenile homicide offenders, too, violates the Eighth
Amendment. Finally, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court
clarified that Miller’s holding constitutes substantive law that must be applied retroactively to
offenders already facing mandatory life in prison. The Supreme Court explained that a state
need not guarantee freedom to the juvenile offender, but the sentence must provide “some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

2

Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75); see also Montgomery, 136 S. Ct. at
736 (“Those prisoners who have shown an inability to reform will continue to serve life
sentences. The opportunity for release will be afforded to those who demonstrate . . . that
children who commit even heinous crimes are capable of change.”).
The rationale for treating juvenile offenders differently from adult offenders is simply
that “children are different . . . .” Miller, 567 U.S. at 481. “[D]evelopments in psychology and
brain science continue to show fundamental differences between juvenile and adult minds.”
Graham, 560 U.S. at 68. As Miller explains,
First, children have a lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and heedless risk-taking.
Second, children are more vulnerable to negative influences and outside
pressures, including from their family and peers; they have limited control over
their own environment and lack the ability to extricate themselves from horrific,
crime-producing settings. And third, a child’s character is not as well formed as
an adult’s; his traits are less fixed and his actions less likely to be evidence of
irretrievable depravity.
Miller, 567 U.S. at 471 (quotation marks and citations omitted). Youth “is a time of immaturity,
irresponsibility, impetuousness, and recklessness.” Id. at 476 (quotation marks and citation
omitted). It is “a condition of life when a person may be most susceptible to influence and to
psychological damage.” Id. (quotation marks and citation omitted).
“Parts of the brain involved in behavior control continue to mature through late
adolescence.” Graham, 560 U.S. at 68. Studies have shown that “only a relatively small
proportion of adolescents who engage in illegal activity develop entrenched patterns of problem
behavior.” Miller, 567 U.S. at 471 (quotation marks and citation omitted). Thus, the actions of a
juvenile “are less likely to be evidence of irretrievably depraved character than are the actions of
adults.” Graham, 560 U.S. at 68 (quotation marks and citation omitted).
Because “a greater possibility exists that a minor’s character deficiencies will be
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reformed,” it “would be misguided” to treat a juvenile offender in the same fashion as an adult.
Id. (quotation marks and citation omitted). A mandatory sentence of life without parole takes no
account of the fact that the “signature qualities” of youth described above “are all transient.”
Miller, 567 U.S. at 476 (quotation marks and citation omitted). As Miller explains,
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking
into account the family and home environment that surrounds him—and from
which he cannot usually extricate himself—no matter how brutal or
dysfunctional. . . . It ignores that he might have been charged and convicted of a
lesser offense if not for incompetencies associated with youth—for example, his
inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys.
Id. at 477-78. The sentence of life without parole for a juvenile “disregards the possibility of
rehabilitation even when the circumstances most suggest it.” Id. at 478.
Although the rule enunciated in Miller applies retroactively, it “does not require States to
relitigate sentences, let alone convictions, in every case where a juvenile offender received
mandatory life without parole.” Montgomery, 136 S. Ct at 736. “A State may remedy a Miller
violation by permitting juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” Id. at 736. Nonetheless, the Supreme Court noted that “Miller did bar life
without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect
permanent incorrigibility.” Id. at 734. “[G]iven . . . children’s diminished culpability and
heightened capacity for change, . . . appropriate occasions for sentencing juveniles to this
harshest possible penalty” are supposed to “be uncommon.” Miller, 567 U.S. at 479.
b. Missouri Law on Juveniles Serving Life Without Parole
After Montgomery, the Missouri legislature amended state law to permit those who were
sentenced to mandatory life without parole for offenses committed when they were juveniles to

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petition for parole after serving 25 years in prison. See Mo. Rev. Stat. § 558.047. The amended
law provides, in relevant part:
Any person sentenced to a term of imprisonment for life without eligibility for
parole before August 28, 2016, who was under eighteen years of age at the time
of the commission of the offense or offenses, may submit to the parole board a
petition for a review of his or her sentence . . . after serving twenty-five years of
incarceration on the sentence of life without parole.
Mo. Rev. Stat. § 558.047.1.1.
The statute requires the Board to hold a hearing to determine whether parole is
appropriate. See Mo. Rev. Stat. § 558.047.4. It also enumerates factors that the Board “shall
consider”:
(1) Efforts made toward rehabilitation since the offense or offenses occurred,
including participation in educational, vocational, or other programs during
incarceration, when available;
(2) The subsequent growth and increased maturity of the person since the offense
or offenses occurred;
(3) Evidence that the person has accepted accountability for the offense or
offenses, except in cases where the person has maintained his or her innocence;
(4) The person’s institutional record during incarceration; and
(5) Whether the person remains the same risk to society as he or she did at the
time of the initial sentencing.
Mo. Rev. Stat. § 558.047.5. The statute also incorporates by reference the following additional
factors that the Board must consider (see id.):
(1) The nature and circumstances of the offense committed by the defendant;
(2) The degree of the defendant’s culpability in light of his or her age and role in
the offense;
(3) The defendant’s age, maturity, intellectual capacity, and mental and emotional
health and development at the time of the offense;
(4) The defendant’s background, including his or her family, home, and
community environment;
(5) The likelihood for rehabilitation of the defendant;
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(6) The extent of the defendant’s participation in the offense;
(7) The effect of familial pressure or peer pressure on the defendant’s actions;
(8) The nature and extent of the defendant’s prior criminal history, including
whether the offense was committed by a person with a prior record of conviction
for murder in the first degree, or one or more serious assaultive criminal
convictions;
(9) The effect of characteristics attributable to the defendant’s youth on the
defendant’s judgment; and
(10) A statement by the victim or the victim’s family member as provided by
[other specified statutes].
Mo. Rev. Stat. § 565.033.2.
II.

The Alleged Facts1

Plaintiffs allege that, although they now are eligible for parole under Missouri law, they
have been denied a meaningful opportunity for release, in violation of their constitutional rights,
because of the policies, procedures, and customs of the defendants—the Missouri Director of
Corrections and each of the members of the Board.
Plaintiffs allege that the Board, which has sole authority to grant or deny parole
applications, is “a political body long criticized for its arbitrariness, dysfunction, and lack of
transparency.” Doc. 22, ¶ 60. The Board also presides over too many hearings to fairly consider
the plaintiffs’ applications. The full board may decide a prisoner’s petition, even when only a
subset—often even just one Board member—sits on the hearing panel.

The Board has

“historically enjoyed broad discretion in its decision making” and decisions purportedly rendered
by the full board are not reviewable. Id., ¶ 71.
Parole proceedings, by statute, are closed, unless they are posted as open, and votes are

1

For purposes of deciding the motion to dismiss, the Court accepts the factual allegations in the
complaint as true and construes them in the light most favorable to the plaintiff. See Stodghill v.
Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).
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closed. Hearings last on average just 15 to 30 minutes, and the majority of that time is spent
discussing the circumstances of the offense. Parole hearings for youthful offenders, according to
the plaintiffs, “are generally treated no differently than typical Missouri parole hearings, which
themselves do not comply with due process or other constitutional norms.” Id., ¶ 77. Prisoners
are not permitted access to their parole files, so they do not know—and cannot challenge or
correct—much of the information the Board considers. Prisoners are permitted just one delegate
at a hearing, and if the delegate is an attorney, she is not permitted to act as a lawyer in a hearing
or even to meet with the prisoner beforehand. Both the information that prisoners are permitted
to present and their time for speaking is severely limited. In contrast, victims may have multiple
delegates and their presentations are not limited in any fashion. Inmates are not permitted to
procure recordings of the hearings.
An ACLU report cites a “parole board staff member” as stating that “some members
never read the files at all and instead base their decision on how the reviewing board member
before them voted.” Id., ¶ 94. “A former operations manager of the Board admitted that denial
forms would almost always say the same thing,” i.e., “Release at this time would depreciate the
seriousness of the present offense.” Id., ¶ 110. Yet, she admitted that “that was ‘not always the
truth. Sometimes I’d make that crap up. The real reason’ . . . was ‘we don’t believe in parole for
people like you.’” Id.
Plaintiffs allege that Defendant Ruzicka was investigated by the Missouri Department of
Corrections, Office of Inspector General, for turning parole hearings into games. Mr. Ruzicka
and a parole analyst would compete against each other to see how many times each could use a
particular word or refer to a song lyric during a proceeding. Although he was removed from the
hearing schedule during the investigation, Mr. Ruzicka returned to participate in hearings after

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the report was issued. He has conducted over 45,000 parole hearings, and Plaintiffs plead upon
information and belief that he presided over two of 22 hearings for prisoners serving juvenile life
without possibility of parole sentences, and has contributed to every Board decision denying
such prisoners parole.
Plaintiffs allege that just four prisoners out of fourteen prisoners who were serving life
sentences for crimes committed before they were 18 years old were granted parole in 2015. The
parole-grant rate for juveniles serving life without possibility of parole is even lower: as of June
2017, the Board had conducted 20 hearings under the new Missouri law enacted in light of
Montgomery, but it granted parole in only two instances. Each of these denials cited the
circumstances of the offense as a reason for the denial. The majority of the Miller-impacted
individuals, including all of the plaintiffs, will not be eligible for parole again for 5 years.
According to Plaintiffs, approximately 80 Missouri inmates currently are impacted by
Miller.
The complaint includes allegations specific to the plaintiffs’ individual parole hearings as
well. Plaintiff Brown alleges that he has served over 25 years of his sentence. The complaint
describes him as a “model inmate” who has completed “thousands of hours of restorative justice
programs” and who serves as a prison hospice worker and helps to run a “Puppies for Parole”
dog training program. Doc. 22, ¶ 130. He had a parole hearing in May 2017. His delegate, his
attorney, was not permitted to bring pen and paper into the hearing. Mr. Brown “offered his
deepest apologies, regrets, and condolences” to the victim, but both Mr. Brown and his attorney
were told not to look at the victim. Id., ¶¶ 136, 134. The victim was permitted to read a 12-page
statement and offer any factual assertions, feelings, and opinions about the law that she wished.
She told the Board that the Miller decision was wrong and should not be followed. Mr. Brown’s

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attorney was not permitted to respond to anything the victim said. The victim also apparently
had been given non-public information about Mr. Brown. The prosecutor, like the victim, was
permitted to speak freely and to present any information he wished, including a new crime scene
diagram he had created that was never shown to Mr. Brown. In contrast, Mr. Brown’s attorney
was permitted only to speak about support that she might provide Mr. Brown upon his release.
Two days after the hearing, Mr. Brown received a notice of denial that cited as the sole basis the
seriousness of the offense.

Defendant Ruzicka was one of the Board members who had

conducted the hearing.
Plaintiff McElroy alleges that he has served over 30 years of his original sentence, during
which time he completed a GED and received numerous training certificates. He has been
employed as a caretaker in the Enhanced Care Unit. He had a parole hearing in December 2016,
at which he was permitted only one delegate. His sister, his hearing delegate, sent letters to the
Board prior to the hearing. At the hearing, she explained his “extensive home plan which
included a responsible fiancé, a place to live, and a potential job.” Id., ¶ 150. Mr. McElroy
received a notice of denial about five weeks after the hearing that cited just two reasons for the
denial:

(1) that release would depreciate the seriousness of the offense based on the

circumstances of the offense, and (2) the risk of Mr. McElroy’s later violating the law due to
poor institutional adjustment. The denial notice stated that the decision was not appealable. Mr.
McElroy is scheduled for reconsideration in December 2021.
Plaintiff Mr. Roberts alleges that he has served over 28 years of his original sentence. He
has improved himself through completion of courses, has maintained a steady work history, and
has several letters of support from supervisors who commend his industriousness and good
character. He received the vast majority of his conduct violations while in his 20s, and he has

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not received a single conduct violation in the last eight years. He was permitted just one delegate
at his March 2017 parole hearing. At the hearing, defendant McSwain “grilled Mr. Roberts
about the circumstances of the crime until Mr. Roberts broke down, sobbing.” Id., ¶ 159. Four
weeks later, the Board denied Roberts’ request for parole, citing the circumstances of the
offense. Roberts’ Institutional Parole Officer, Jessica Bliesath, had told Roberts before the
hearing that the Board could not deny parole based solely on the circumstances of the offense.
When Roberts asked her about the denial notice he had received, she responded, “I can assure it
is not the sole reason you received a reconsideration versus a release date.” Id., ¶ 103; Doc. 226. The denial notice stated that the decision was not appealable. Roberts is scheduled for
reconsideration in March 2021.
Plaintiff Roland has served over 29 years of his original sentence.

He has “an

exceptional institutional record,” having had no conduct violations in about 15 years, and no
more than 14 conduct violations during his 30 years in prison. Doc. 22, ¶ 163. At his January
2017 parole hearing, he was permitted only one delegate.

When his delegate delivered a

statement, the Board cut her off and directed her to speak only to his home plan. Defendant
Rucker, the only Board member at the hearing, admitted on the record that he had not read
Roland’s file.

Four weeks later, the Board denied Roland’s request for parole, citing the

circumstances of the offense. The notice stated that the decision was not appealable. Roberts is
scheduled for reconsideration in January 2022.
In Counts I and III of the First Amended Complaint, Plaintiffs allege that the denials of
their requests for parole amount to cruel and unusual punishment under the United States and
Missouri Constitutions because the Defendants’ policies, procedures, and customs do not provide
a meaningful opportunity for release upon demonstrated rehabilitation. In Counts II and IV of

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the First Amended Complaint, Plaintiffs allege that that their right to due process of law under
the United States and Missouri Constitutions was violated because they are not afforded (1) a
meaningful opportunity for release upon demonstration of their maturity and rehabilitation; (2)
the right to review and rebut evidence against them at parole hearings; and (3) sufficient notice
of and explanation about the basis for their parole denials. Plaintiffs expressly state that they are
not challenging the fact or duration of their confinement. They seek declaratory and injunctive
relief.
III.

The Motion to Dismiss

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation marks and citation omitted). A claim is “plausible on its face”
when the allegations allow the court to draw the reasonable inference that the defendants are
liable for the misconduct alleged—there must be more than “a sheer possibility” that the
defendants acted unlawfully. Id. (citation omitted).

Allegations of fact that are “merely

consistent with” liability are insufficient. Id. (citation omitted).
To succeed on their § 1983 claims, Plaintiffs must prove: (1) that Defendants deprived
them of a right secured by the United States Constitution, and (2) that Defendants acted under
color of state law. See Gonzales-Perez v. Harper, 241 F.3d 633, 637 (8th Cir. 2001). Because
Missouri interprets its corresponding constitutional provisions similarly, analysis of
Plaintiffs’ claims under the Missouri Constitution is the same as under the United States
Constitution. See Jamison v. State Dep’t of Social Services, Div. of Family Services, 218
S.W.3d 399, 405 n.7 (Mo. 2007) (noting that “Missouri’s due process clause parallels its
federal counterpart”); Burnett v. State, 311 S.W.3d 810, 814 n.3 (Mo. App. 2009) (noting that
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Missouri courts “apply the same standard in determining whether a punishment violates the
United States Constitution or Missouri Constitution” because both provide the “same protection
against cruel and unusual punishment”).
There is no dispute that the Defendants at all relevant times acted under color of
state law. The parties dispute only whether Defendants violated any of Plaintiffs’
constitutional rights.
a. Cruel and Unusual Punishment
i. A Meaningful Opportunity for Release for the Juvenile Offender
Plaintiffs allege that the Defendants’ policies, procedures, and customs violate the
constitutional prohibition against cruel and unusual punishment because they do not
provide juvenile offenders a meaningful opportunity for release. Defendants counter that,
to the contrary, Plaintiffs have a meaningful opportunity for release as a matter of law
because they each are eligible for parole and are subject to the normal Missouri parole
process, and because the Board is required by Missouri statute to consider, among other
factors, the juvenile offenders’ age at the time of the offense as well as their subsequent
maturity and rehabilitation. Defendants argue that the constitutional right to freedom from
excessive punishment requires nothing more—and that certainly, it does not require special
parole procedures or policies for juvenile offenders beyond those outlined in the newly
enacted Missouri statutes.
The Supreme Court cases concerning life-without-parole sentences for juvenile offenders
“do[] not require the State to release [a juvenile] offender during his natural life.” Graham, 560
U.S. at 75. Nor do they “require States to relitigate sentences, let alone convictions, in every
case where a juvenile offender received mandatory life without parole.” Montgomery, 136 S. Ct.

12

at 736. A state may “remedy a Miller violation by permitting juvenile homicide offenders to be
considered for parole, rather than by resentencing them.” Id. And “[i]t is for the State, in the
first instance, to explore the means and mechanisms for compliance.” Graham, 560 U.S. at 75.
Nonetheless, these Supreme Court cases contemplate that the juvenile offender will have
an opportunity to obtain release upon demonstrating maturity and rehabilitation.

As

Montgomery explains,
Allowing those offenders to be considered for parole ensures that juveniles whose
crimes reflected only transient immaturity—and who have since matured—will
not be forced to serve a disproportionate sentence in violation of the Eighth
Amendment. . . . Those prisoners who have shown an inability to reform will
continue to serve life sentences. The opportunity for release will be afforded to
those who demonstrate the truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.
Montgomery, 136 S. Ct. at 736; see also Graham, 560 U.S. at 73 (“A life without parole sentence
improperly denies the juvenile offender a chance to demonstrate growth and maturity.”). Thus,
juvenile offenders “must be given the opportunity to show their crime did not reflect irreparable
corruption; and if it did not, their hope for some years of life outside prison walls must be
restored.” Montgomery, 136 S. Ct. at 736-37. The opportunity to demonstrate maturity and
reform must be “meaningful” and “realistic.” See Graham, 560 U.S. at 75 (“What the State must
do . . . is give defendants like Graham some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.”); id. at 82 (“[I]f [a State] imposes a sentence of life it
must provide [the juvenile offender] with some realistic opportunity to obtain release before the
end of that term.”). Failure to provide a juvenile offender eligible for parole with a “meaningful
opportunity” to demonstrate maturity and reform violates the prohibition against excessive
punishment.
Defendants argue that the Supreme Court’s citation of a Wyoming statute that permitted
juvenile offenders to apply for parole after 25 years but did not provide for any special parole
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procedures for juvenile homicide offenders demonstrates that Montgomery does not impose
special requirements for Miller-affected offenders’ parole proceedings. However, immediately
after referring to the Wyoming statute, the Supreme Court added in Montgomery that “[a]llowing
those offenders to be considered for parole ensures that juveniles whose crimes reflected only
transient immaturity—and who have since matured—will not be forced to serve a
disproportionate sentence in violation of the Eighth Amendment.” Montgomery, 136 S. Ct. at
736 (emphasis added). Thus, even though the Wyoming statute did not on its face provide
special protections for a juvenile offender’s parole proceedings, the Supreme Court expressly
noted that a Miller-affected offender should be permitted to show maturity and how transient
immaturity factored into the crime. Such offenders therefore are different.
Defendants argue also that the Supreme Court’s recent decision in Virginia v. LeBlanc,
137 S. Ct. 1726 (2017), establishes that Miller does not establish either substantive or procedural
requirements for parole proceedings. However, that case is distinguishable because it dealt with
special rules applicable only to habeas corpus actions, not to a section 1983, Eighth Amendment
violation.
In LeBlanc, the offender was sentenced to life without parole after he was convicted of
rape committed while he was 16 years old. See id. at 1727. At that time, Virginia had abolished
the traditional parole framework for felony offenders and had instead enacted a “geriatric
release” program that permitted inmates to be released before the end of their prison terms under
certain circumstances after they passed the age of 60 or 65 years. See id. Seven years after
LeBlanc was convicted, Graham was decided. Id. LeBlanc then moved in state court to vacate
his sentence in light of Graham. See id. The Virginia trial court denied LeBlanc’s motion,
relying on the Virginia Supreme Court’s decision in a prior case that held that the geriatric

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release program satisfied Graham’s requirement of parole for juvenile offenders because it
provided “the meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation required by the Eighth Amendment.” See id. (citing Angel v. Commonwealth, 281
Va. 248, 275 (2011)). The Virginia Supreme Court subsequently summarily denied LeBlanc’s
requests to appeal the trial court decision. See LeBlanc, 137 S. Ct. at 1728.
LeBlanc then filed a federal habeas petition in federal district court in Virginia pursuant
to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See id. In relevant
part, the AEDPA permits federal habeas relief if an underlying state court merits ruling resulting
in a person’s imprisonment was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States . . . .” 28
U.S.C. § 2254(d)(1). Both the federal district court and the Fourth Circuit concluded that the
state trial court’s ruling was an unreasonable application of Graham because Virginia’s geriatric
release program did not provide a meaningful opportunity for release based on demonstrated
maturity and rehabilitation. See Leblanc, 137 S. Ct. at 1728.
In a per curiam opinion, the U.S. Supreme Court reversed, concluding that “[t]he
Virginia trial court did not unreasonably apply the Graham rule.” 137 S. Ct. at 1728. The
Supreme Court explained that, because it was a habeas petition being reviewed, “[i]n order for a
state court’s decision to be an unreasonable application of th[e Supreme] Court’s case law, the
ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id.
(quotation marks and citation omitted). LeBlanc was required to show, in other words, that “the
state court’s ruling was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”

Id.

(quotation marks and citation omitted). This was “meant to be a difficult standard to meet.” Id.

15

(quotation marks and citation omitted). The Supreme Court noted that “Graham did not decide
that a geriatric release program like Virginia’s failed to satisfy the Eighth Amendment because
that question was not presented. It merely decided that it was not objectively unreasonable for
the state court to conclude that, because the geriatric release program employed normal parole
factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a
meaningful opportunity to receive parole.” Id. at 1728-29. The Supreme Court noted that “[t]he
geriatric release program instructs Virginia’s Parole Board to consider factors like the
individual’s history and the individual’s conduct during incarceration, . . . and changes in attitude
toward self and others.” Id. at 1729 (quotation marks and citation omitted). The Supreme Court
then concluded that “[c]onsideration of these factors could allow the Parole Board to order a
former juvenile offender’s conditional release in light of his or her demonstrated maturity and
rehabilitation.” Id. The Virginia courts therefore had “not diverge[d] so far from Graham’s
dictates as to make it so obvious that there could be no fairminded disagreement about whether
the state court’s ruling conflicts with th[e] [Supreme] Court’s case law.” Id. (quotation marks
and citation omitted). There were “reasonable arguments on both sides” as to whether the
geriatric release program satisfied the Eighth Amendment, including the inmate’s “contentions
that the Parole Board’s substantial discretion to deny geriatric release deprives juvenile
nonhomicide offenders a meaningful opportunity to seek parole and that juveniles cannot seek
geriatric release until they have spent at least four decades in prison.” Id. The Supreme Court
volunteered that it “expresse[d] no view on the merits of the underlying Eighth Amendment
claim” because of the “narrow” scope of federal habeas review. Id. (quotation marks and
citation omitted). Thus, Leblanc did not hold, as Defendants argue, that the Eighth Amendment

16

does not require more than normal parole procedures. To the contrary, the Supreme Court
expressly stated that it was not deciding that issue.
Multiple sister court decisions have concluded that Graham, Miller, and Montgomery
require a meaningful opportunity for a juvenile offender’s release upon demonstration of
maturity and rehabilitation. See Greiman v. Hodges, 79 F. Supp. 3d 933, 943-44 (S.D. Iowa
2015) (denying motion to dismiss claim that parole review procedures were not compliant with
Graham where plaintiff alleged that the parole board “failed to take account of Plaintiff’s youth
and demonstrated maturity and rehabilitation” and relied solely on “seriousness of the offense”
in denying parole) (quotation marks and citation omitted); Maryland Restorative Justice
Initiative v. Hogan, No. 16-1021, 2017 WL 467731, at *27 (D. Md. Feb. 3, 2017) (denying
motion to dismiss because plaintiffs sufficiently alleged that Maryland’s parole system provided
only “remote,” rather than “meaningful” and “realistic,” opportunities for release, including by
“den[ying] parole due to the nature of their offenses or their status as lifers”); Hayden v. Keller,
134 F. Supp. 3d 1000, 1009 (E.D. N.C. 2015) (denying defendants’ motion for summary
judgment and granting plaintiff’s motion for summary judgment in part after finding that the
North Carolina parole system failed to provide a meaningful opportunity for parole because the
commissioners and case analysts did not “distinguish parole reviews for juvenile offenders from
adult offenders, and thus fail[ed] to consider ‘children’s diminished culpability and heightened
capacity for change’”) (citing Miller, 567 U.S. at 479); Wershe v. Combs, No. 12-1375, 2016 WL
1253036, at **3-4 (W.D. Mich. Mar. 31, 2016) (finding the reasoning in Greiman, Maryland
Restorative Justice, and Hayden “persuasive,” and noting that the Supreme “Court’s discussion
of a meaningful opportunity to obtain release . . . suggests that the decision imposes some

17

requirements after sentencing as well,” but concluding that the evidence in that case indicated
that the parole board did consider the plaintiff’s “maturity and rehabilitation”).2
For these reasons, the Court concludes that the constitutional prohibition against cruel
and unusual punishment, as interpreted in Graham, Miller, and Montgomery, requires states to
provide juvenile offenders with a meaningful and realistic opportunity for release—an
opportunity that permits the offenders to demonstrate maturity and rehabilitation.
ii. Whether Plaintiffs State a Claim
The Court now considers whether the plaintiffs’ allegations state a plausible claim that
the defendants have failed to provide plaintiffs with a meaningful and realistic opportunity for
release. The following allegations are salient:


The information that prisoners are permitted to present is severely limited. See
Doc. 22, ¶¶ 11, 141.



The majority of the hearing is devoted to discussing the circumstances
surrounding the offense for which the juvenile was sentenced. See id., ¶¶ 11, 112,
159.
Advocates are directed to speak only to the offenders’ home plans, and have been
cut off when they attempt to speak to the offenders’ youth at the time of the
offense, or childhood trauma. See id., ¶¶ 87-88, 113, 142, 165.





In contrast, the presentations of the victim(s) and the prosecutor, who focus only
on the crime itself, are not limited in any fashion. See id., ¶¶ 83-84, 140.

2

A decision from within this District that Defendants cite in supplemental briefing, Ramirez v.
Griffith, also is in accord with these decisions. In Ramirez, Judge Whipple noted that Missouri
parole procedures are supposed to take account of “the youth-related concerns identified in
Miller, such as the offender’s age and maturity, his family environment, the circumstances of the
offense, and prospects for rehabilitation.” Ramirez, No. 16-1058, Doc. 8, p. 5 (W.D. Mo. Dec. 2,
2016), cert. of appealability denied, No. 17-1478 (8th Cir. Aug. 3, 2017). Although the court
ultimately dismissed the petition in that case, it did so in relevant part because petitioner “fail[ed]
to adequately explain how or why Missouri’s parole system is deficient either on its face or as
applied to him.” No. 16-1058, Doc. 8, p. 5. Here, in contrast, as discussed below, plaintiffs have
alleged how and why Missouri’s parole system is deficient. Ramirez therefore is of limited
applicability here.
18

o One victim was permitted to testify that the juvenile offender may have
shot her—although that theory had never before been advanced, and the
government previously had conceded that the juvenile was unarmed and
not even in the same room as the victim when the shooting occurred. See
id., ¶ 139.
o In one instance, a prosecutor urged the Board to consider facts that were
erroneous and never proven at trial, and he presented a new crime scene
diagram that he had put together for the Board’s consideration. Neither
the offender nor his advocate were provided with the information. See id.,
¶ 140.


Offenders are not permitted to know or review the contents of the parole files that
the Board takes into consideration, and the files often contain errors. See id., ¶¶
96-98.



The Board member(s) deciding a prisoner’s petition may not have been the Board
member(s) present at the hearing. See id., ¶ 95.



Board members frequently treat the hearings as games. See id., ¶¶ 118-127.



Some Board members never read the offenders’ files. See id., ¶ 94.



After conducting 20 parole hearings for Miller-affected offenders, the Board
granted parole in just two instances. See id., ¶ 101.



Most of the Miller-affected offenders who were denied parole were deemed
ineligible for parole for another five years—the maximum setback period
permitted under Board rules. The remaining offenders were deemed ineligible for
parole for even longer terms, without explanation. See id. ¶ 102.



The Board almost invariably cites only one reason for denial of parole: the
seriousness of the offense. See id., ¶¶ 109-110, 145, 160, 167. Yet, high-level
Board staff have acknowledged that Miller-affected offenders cannot be denied
parole solely based on the circumstances of the offense. See id., ¶ 103 and n.7.



In fact, the Board members frequently just “don’t believe in parole for people like
[the plaintiffs].” See id., ¶ 110.



Plaintiffs’ prison records may show maturity and rehabilitation. See id., ¶ 130,
148, 155-156, 163.

If these allegations are proven, Plaintiffs very well could convince a reasonable factfinder that
they have not had a meaningful opportunity consistent with Supreme Court teachings to
demonstrate maturity and rehabilitation. See, e.g., Hawkins v. New York State Dep’t of Corr. &
Cmty. Supervision, 140 A.D.3d 34, 36 and 39-40 (N.Y. App. Div. 2016) (holding that, where
19

“neither the hearing transcript nor the Board’s written determination reflect[ed] that the Board
met its constitutional obligation to consider petitioner’s youth and its attendant characteristics in
relationship to the commission of the crime,” the “petitioner was denied his constitutional right
to a meaningful opportunity for release”).
Defendants argue that “Plaintiff’s complaints about specific parole procedures and
anecdotal misconduct do not diminish their meaningful opportunity for parole release” because,
“[a]long with parole hearings, the Board also reviews all available reports, case history, social
history, medical, psychological and psychiatric reports, prior criminal history, institutional
adjustment, work history, and participation in rehabilitative programs.” See Doc. 26, p. 11.
Defendants cite the Board’s published procedures, Procedures Governing the Granting of Paroles
and Conditional Release, in support of this claim. However, while that publication and the
Missouri statute may be evidence of what the Board should do in making a parole determination,
it is not evidence of what the Board has done or is doing.3 Plaintiffs specifically allege that
Board members often do not read the parole files, and in at least one instance, a Board member
admitted on the record that he had not reviewed the file prior to the hearing. See Doc. 22, ¶ 166.4

3

It is axiomatic that, even if a state’s black-letter law does not on its face violate a constitutional
provision, it is nonetheless possible that the law as applied violates the provision. See, e.g.,
Turner v. Fouche, 396 U.S. 346, 353 (1970) (holding that “the District Court properly
entertained the question whether the constitutional and statutory complex, even if not invalid on
its face, was unconstitutionally administered”).
4

Defendants argue that, although “Plaintiffs complain about anecdotal incidents of Board
misconduct,” Plaintiffs fail to “allege that this misconduct took place during their parole
proceedings or affected them in any way.” This is not the case. See, e.g., Doc. 22, ¶ 133
(alleging that the plaintiff’s advocate was prohibited from bringing pen or paper into the
hearing); id., ¶ 140 (alleging that the Board permitted the prosecutor to submit a new crime scene
diagram that had not been submitted in the criminal proceedings against the plaintiff); id., ¶ 166
(alleging that the sole Board member at one plaintiff’s hearing “admitted on record that he had
not reviewed Mr. Roland’s file beforehand”). Moreover, given Plaintiffs’ allegation that
requests for transcripts of their parole hearings have been denied (see id., ¶ 151), any omission
20

Thus, even if the Court were to take judicial notice of the published procedures, as Defendants
request, they would not be determinative at the motion to dismiss stage.
Defendants also argue that there can be no merit in Plaintiffs’ claims because statistics
show that most parole-eligible offenders are released before the end of their sentence. But
Defendants’ claim that 95% of offenders in Missouri who are eligible for parole are released
from prison before the end of their sentence is irrelevant, because that does not address
Plaintiffs’ claim that they have not been given a meaningful opportunity for release based on
demonstrated maturity and rehabilitation.
The Court thus concludes that Plaintiffs have stated a claim for violation of the
constitutional prohibition against cruel and unusual punishment. Defendants’ motion to dismiss
Counts I and III is denied.5
b. Due Process Violations
In Counts II and IV of the First Amended Complaint, Plaintiffs allege that that their right
to due process of law under the United States and Missouri Constitutions was violated because
they are not afforded a meaningful opportunity for release upon demonstration of their growth,
maturity, and rehabilitation, and because the Board does not take into account the mandatory
factors set forth under applicable Missouri statutes. The due process and cruel-and-unusualpunishment claims are based on the same alleged conduct.

by Plaintiffs of specific examples of misconduct in the Plaintiffs’ hearings should not be held
against the Plaintiffs at this stage.
5

This Court’s denial of the defendants’ motion to dismiss does not mean that the plaintiffs are
entitled to the specific parole procedures they seek. Rather, they have a right to show that they
have not been provided a meaningful opportunity to obtain parole as required by the Supreme
Court. An appropriate remedy for the alleged Eighth Amendment violation must be addressed
after the violation is established.
21

i. Whether Plaintiffs Have a Liberty Interest
for Which They Are Entitled to Due Process
Absent a liberty or property interest, an individual can have no constitutional right to due
process. See Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979)
(“The Due Process Clause applies when government action deprives a person of liberty or
property; accordingly, when there is a claimed denial of due process we have inquired into the
nature of the individual’s claimed interest.”).
The ordinary offender has no more than “a mere hope” of parole and therefore is not
entitled to due process protections in parole proceedings. Id. at 11. Yet, the Supreme Court has
recognized that, in some instances, an offender may possess a liberty interest in parole. See Bd.
of Pardons v. Allen, 482 U.S. 369, 371 (1987) (“In Greenholtz the Court held that, despite the
necessarily subjective and predictive nature of the parole-release decision, . . . the mandatory
language and the structure of the Nebraska statute at issue . . . created an ‘expectancy of release,’
which is a liberty interest entitled to [due process] protection.”); (citing Greenholtz, 442 U.S. at
12).
Here, there is no law guaranteeing parole release to the juvenile offender.

To the

contrary, the Supreme Court has expressly stated that juvenile offenders “who have shown an
inability to reform will continue to serve life sentences.” Montgomery, 136 S. Ct. at 736.
Nonetheless, as discussed above, Graham, Miller, and Montgomery demand for the
juvenile offender “substantially more than a possibility of parole or a mere hope of parole . . . .”
Greiman, 79 F. Supp. 3d at 945 (emphasis in original) (quotation marks and citation omitted).
They require that juvenile offenders be afforded a meaningful and realistic opportunity for
release. See Hayden, 134 F. Supp. 3d at 1010-11 (“The Supreme Court has now clarified that
juvenile offenders’ parole reviews demand more procedural protections.”) (citing Graham, 560
22

U.S. at 79; Greiman, 79 F. Supp. 3d at 945); Greiman, 79 F. Supp. 3d at 945 (“[A]lthough
Graham stops short of guaranteeing parole, . . . it creates a categorical entitlement to
‘demonstrate maturity and reform,’ to show that ‘he is fit to rejoin society,’ and to have a
‘meaningful opportunity for release’) (quoting Graham, 560 U.S. at 79); see also Diatchenko v.
Dist. Attorney for Suffolk Dist., 471 Mass. 12, 18–19 (2015) (observing that “where the
meaningful opportunity for release through parole is necessary in order to conform the juvenile
homicide offender’s mandatory life sentence to the requirements of art. 26 [of the Massachusetts
Constitution], the parole process takes on a constitutional dimension that does not exist for other
offenders whose sentences include parole eligibility”).
That Graham, Miller, and Montgomery affect not only the nature of the sentence imposed
on juvenile offenders like Plaintiffs but also the procedure by which their parole determinations
are made is further apparent in the Supreme Court’s discussion of evidence that might be used to
show rehabilitation:
Petitioner states that he helped establish an inmate boxing team, of which he later
became a trainer and coach. He alleges that he has contributed his time and labor
to the prison’s silkscreen department and that he strives to offer advice and serve
as a role model to other inmates. . . . The petitioner’s submissions are
relevant . . . as an example of one kind of evidence that prisoners might use to
demonstrate rehabilitation.
Montgomery, 136 S. Ct. at 736. The Supreme Court would not have provided these examples of
evidence for use in parole proceedings had it not contemplated that some process for providing
meaningful evidence would be afforded the juvenile inmate seeking parole.
Thus, under Graham, Miller, and Montgomery, the juvenile offender has a liberty interest
in a meaningful parole review. 6

6

Since the Court has concluded that the Supreme Court’s Eighth Amendment jurisprudence has
vested the juvenile offender with a liberty interest in meaningful parole review, the Court need
23

ii. Whether Plaintiffs Have Stated a Claim
for Violation of Their Due Process Rights
“[D]ue process is flexible and calls for such procedural protections as the particular
situation demands.”

Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

“A fundamental

requirement of due process is ‘the opportunity to be heard’ . . . at a meaningful time and in a
meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
The complaint alleges, inter alia, that the Board does not review the inmates’ written
submissions, that inmates are not permitted to review or respond to erroneous information
presented against them, and that the hearings—at which the Board members making the
determinations may not even be present—are limited to discussion of the circumstances of the
offense and the inmates’ home plans. See Doc. 22, ¶ 166; ¶¶ 140, 142; ¶¶ 11, 112, 159; ¶¶ 8788, 113, 142, 165. If proven, such allegations could warrant a finding that the Defendants have
denied Plaintiffs the meaningful opportunity for release that the Constitution requires. See
Hayden, 134 F. Supp. 3d at 1011 (finding that “North Carolina’s parole process fails to meet
th[e] constitutional mandate” that there be “a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation” because there was “no advance notice or opportunity
for juvenile offenders to be heard on the question of maturity and rehabilitation—either in
writing or in person”); Greiman, 79 F. Supp. 3d at 945 (finding that plaintiff’s assertion that
“Defendants’ existing procedures and policies deprive him of the ‘meaningful opportunity’ to
which he is entitled . . . if true, would support a conclusion that Defendants have denied him
process to which he is due, namely a ‘meaningful opportunity to obtain release based on

not consider whether state law vests in such an offender a liberty interest meriting due process
protection.
24

demonstrated maturity and rehabilitation,” and therefore “Plaintiff ha[d] adequately stated a
plausible due process claim”).7
Defendants’ motion to dismiss Counts II and IV is denied.
IV.

Plaintiffs’ motion for leave to amend

Plaintiffs seek leave to amend the first amended complaint to add a fifth count, seeking a
declaration that Defendants have failed to comply with the requirements of Missouri Revised
Statutes Sections 558.047.5 and 565.033.2.8 See Doc. 48.
A court should “freely” grant leave to amend “when justice so requires.” Fed. R. Civ. P.
15(a)(2).

“[D]enial of leave to amend pleadings is appropriate only in those limited

circumstances in which undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be demonstrated.” Roberson v.
Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001).
Defendants oppose the motion to amend on one basis alone: that amendment would be
futile. They maintain that Plaintiffs seek only special procedural rights that are not encapsulated
within the statutes at issue. Plaintiffs, without conceding the constitutionality or adequacy of
either Section 558.047.5 or Section 565.033.2, allege that the defendants do not comply even

7

The Court does not deem it necessary to address Plaintiffs’ contentions that they should have
counsel, experts furnished at the government’s expense, an opportunity to communicate with a
victim or his or her family, or better notice or explanation about the basis for their parole denials,
as the plaintiffs’ other allegations alone are sufficient to state a due process claim. For the same
reason, the Court need not evaluate Plaintiffs’ argument that the Missouri law governing parole
consideration for Miller-affected inmates itself fails to guarantee the process to which Plaintiffs
are due.
8

Plaintiffs moved for leave to amend on August 11, 2017, prior to the expiration of the August
14, 2017 deadline for amendment of the pleadings established under the scheduling order. See
Doc. 35, p. 1.
25

with the letter of those laws, as they fail to give adequate consideration to the factors specified
therein.
The proposed second amended complaint adequately alleges that the Board does not
consider factors delineated in Sections 558.047.5 and 565.033.2, including Plaintiffs’
rehabilitative efforts; Plaintiffs’ growth and maturity since the commission of the underlying
offense; Plaintiffs’ age, maturity, intellectual capacity, and mental and emotional health and
development at the time of the offense; and whether Plaintiffs remain the same risk to society as
they were at the time of sentencing. See, e.g., Doc. 49-1, ¶¶ 74, 76, 81, 87, 88, 94, 95, 97, 98,
103, 109, 110, 112, 187. If proven, these allegations could warrant a declaration that the
defendants’ policies, practices, and customs with respect to the parole review process for the
plaintiffs and the putative class do not satisfy the requirements of Sections 558.047.5 and
565.033.2. Amendment therefore would not be futile.
The Court grants Plaintiffs’ motion for leave to amend.
V.

The Parties’ Discovery Disputes

Plaintiffs have asked the Court to compel production of four categories of information
that Defendants refuse to provide: (a) an unredacted copy of the Inspector General’s
Investigation Report detailing purported misconduct by parole staff; (b) recordings of Plaintiffs’
parole hearings; (c) Plaintiffs’ parole files, including notes and memoranda created by the Board
or parole staff; and (d) information regarding who participated in Plaintiffs’ parole hearings and
parole-related decisions, and in what capacity.9
The Court addresses the request for the Inspector General’s Investigation Report first.
Plaintiffs already have access to a redacted version of the report, and indeed have relied upon it

9

Plaintiffs have agreed, for the time being, to seek only the parole files, hearing recordings, and
Board member information related to the named plaintiffs.
26

in their pleadings. It is not clear that the redacted portions of the report are relevant to this
lawsuit. Accordingly, the Court will review the unredacted report in camera to determine
whether the redacted portions are relevant and to determine whether any redacted portions
should be made available to Plaintiffs’ counsel.
The Court turns now to the parole review-related documents and information specific to
the named plaintiffs. Defendants object to producing such documents, citing irrelevance, undue
burden, and privilege. First, Defendants argue that the information Plaintiffs seek is irrelevant
because Missouri law already provides special parole consideration for juvenile offenders,
consistent with Miller and Montgomery, and “either plaintiffs are entitled as a matter of law to a
set of procedures that will turn parole hearings into adversarial mini-trials, or they are not.
Examining confidential information will not make that proposition more or less true.”
Second, Defendants argue that the materials Plaintiffs seek are privileged under Section
549.500 of the Missouri Revised Statutes, which provides as follows:
All documents prepared or obtained in the discharge of official duties by any
member or employee of the board of probation and parole shall be privileged and
shall not be disclosed directly or indirectly to anyone other than members of the
board and other authorized employees of the department pursuant to section
217.075. The board may at its discretion permit the inspection of the report or
parts thereof by the offender or his attorney or other persons having a proper
interest therein
Mo. Rev. Stat. § 549.500.
Finally, Defendants argue that producing the requested information would be unduly
burdensome because it would have a chilling effect on third parties who customarily provide
information used in the parole process, such as victims and institutional parole officers, and on
the Board members themselves, who may be subject to public criticism for their votes for or
against release of inmates if their votes do not remain confidential. Defendants state that they
are concerned that information produced in this litigation will be leaked to the public, despite the
27

protective order in place, because the state’s confidential information had been made public,
either inadvertently or intentionally, in certain death penalty cases.
The Court overrules the objection that the information is irrelevant.

Information

concerning the parole hearings, parole files, and board members involved in parole hearings and
decisions for each of the named plaintiffs is relevant to the question of whether the plaintiffs
were afforded a meaningful opportunity to secure release upon demonstrated maturity and
rehabilitation. As discussed in Section III(a)(ii) above, the fact that the Board is required by
statute to consider maturity and rehabilitation is not evidence that it is permitting inmates the
meaningful opportunity for release that the Constitution demands.
The Court overrules the privilege objection as well. As a preliminary matter, “the law is
clear that a state privilege statute cannot limit a federal court’s control of discovery in a federal
question lawsuit.” Zink v. Lombardi, No. 12-4209, 2013 WL 11768304, at *3 (W.D. Mo. May
31, 2013) (Laughrey, J.) (citing Wright & Miller, 8 Fed. Prac. & Proc. Civ. § 2016 (3d ed.); see
also, e.g., Bryant v. Armstrong, 285 F.R.D. 596, 604 (S.D. Cal. 2012) (“State privilege law does
not govern discovery issues in federal § 1983 cases.”). This case, like Zink, “involves civil rights
claims brought by state prisoners in federal court,” and “[a]s such, federal privilege law, and not
state privilege law, applies.” See Zink, 2013 WL 11768304, at *3. Moreover, the statute
expressly authorizes the Board to permit the offender or his attorney—or others “having a proper
interest therein”—to review the documents. Thus, even under state law, the privilege is not
absolute, especially as against the affected inmates.
Finally, the Court overrules the objection that producing the documents would be overly
burdensome. Given the serious constitutional issues at stake, the Board’s interest in withholding
the parole-related materials for the named plaintiffs must give way to the plaintiffs’ right to

28

assess whether they were afforded a meaningful opportunity to obtain release. The protective
order to which the parties have agreed, and which the Court has so-ordered, exists precisely for
this kind of situation.

See Doc. 54.

Any sensitive information may be marked “Highly

Confidential,” and the parties are at liberty to seek to amend the protective order to include an
additional “attorneys eyes only” designation to further limit access to especially sensitive
information. As always, failure to comply with the terms of the protective order may result in
sanctions or contempt of court. The remote possibility that confidential information concerning
the named plaintiffs’ parole review processes may be leaked to the public does not justify
precluding Plaintiffs’ access to documents relevant to their constitutional claim.
VI.

Conclusion

For the reasons stated above, Defendants’ motion to dismiss, Doc. 23, is denied, and
Plaintiffs’ motion for leave to amend, Doc. 48, is granted. Plaintiffs must file the amended
complaint within 5 days of the entry of this order.
The Court orders Defendants to produce to Plaintiffs, within 10 days of entry of this
order, all of the following documents and information: (1) recordings of Plaintiffs’ parole
hearings; (2) Plaintiffs’ parole files, including notes and memoranda created by the Board or
parole staff; and (3) information regarding who participated in Plaintiffs’ parole hearings and
parole-related decisions, and in what capacity. Further, the Court orders Defendants to provide
to the Court for in camera inspection, within 10 days of entry of this order, an unredacted copy
of the Inspector General’s Investigation Report. If the Court determines that Plaintiffs are
entitled to review any portion of that report that has been redacted, the Court will notify the

29

parties and permit Defendants an opportunity to designate the document as appropriate in
accordance with the protective order.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: October 31, 2017
Jefferson City, Missouri

30