Berk et al v. Moore et al

Filing 153

ORDER ADOPTING REPORT AND RECOMMENDATION 139 in that 150 Motion for Default Judgment filed by Don Hall is DENIED, 145 Motion to Stay filed by B Slaton, Cynthia Mausser, Ohio Adult Parole Board, R F Rauschenberger, P Harris, Stephen Huffm an, Sara Andrews, Ellen Venters, Linda James, Ernie Moore, Robert Maszczynski, Kathleen Kovach, J Coakley, T Thalheimer, Gary Mohr and B Brogan is DENIED AS MOOT, 152 Motion for Default Judgment filed by Lester V Keran, Marshall Banks, Don Hall, Otto Berk, Jeff Blair and Gary Calhoun is DENIED, 112 Motion for TRO and Motion for Preliminary Injunction filed by Lester V Keran, Marshall Banks, Don Hall, Otto Berk and Gary Calhoun is DENIED, 151 Motion to Add Blair's signature to the rebuttal to Defendants' Motion to Stay Discovery filed by Jeff Blair is GRANTED, 85 Motion for Judgment on the Pleadings filed by B Slaton, Cynthia Mausser, Ohio Adult Parole Board, R F Rauschenberger, P Harris, Ellen Venters, Robert Maszczynski, J Coakley, Kathleen Kovach, T Thalheimer and B Brogan is GRANTED, 91 Motion for Miscellaneous Relief, Motion to Stay, Motion for Judgment on the Pleadings and Motion for Discovery filed by Otto Berk is DENIED, 125 Motion for Summary Judgment filed by Lester V Keran, Marshall Banks, Don Hall and Gary Calhoun is DENIED.. Signed by Judge Gregory L Frost on 8/31/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OTTO BERK, et al.,
Plaintiffs,

vs.

Civil Action 2:10-CV-1082
Judge Frost
Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,
Defendants.

OPINION AND ORDER
Plaintiffs, Ohio inmates who were convicted of aggravated murder,
murder or rape prior to 1996, bring this action under 42 U.S.C. §
1983, alleging that Ohio’s current parole laws, guidelines and a
handbook violate the due process clause and the ex post facto clause
of the United States Constitution and Ohio law.

On July 23, 2012, the

United States Magistrate Judge issued an Order and Report and
Recommendation, Doc. No. 139, that, inter alia, recommended that
defendants’ motion for judgment on the pleadings, Doc. No. 85, be
denied as to plaintiffs’ ex post facto claims, but granted in all
other respects.

The parties have objected to the Order and Report and

Recommendation, Doc. Nos. 144 and 146.

The Court will consider that

matter de novo. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). The Court
will first address three motions recently filed by plaintiffs.

Doc.

Nos. 150, 151, 152.

I.

PLAINTIFFS’ MOTIONS DOC. NOS. 150, 151, 152
Plaintiffs filed three motions since the issuance of the Report

and Recommendation.

Plaintiff Blair filed a motion seeking to add his

signature to plaintiffs’ rebuttal to defendants’ motion to stay
discovery.

Doc. No. 151.

That motion is GRANTED.

Plaintiff Hall filed a motion for default judgment “pursuant to
the Defendant’s [sic] acquiescence or, failure to object or,
appearance with an affirmative defense prior to the Magistrates [sic]
Granting of Doc. 98,1 110,2 126.”3

Doc. No. 150.

Plaintiffs Berk,

Banks, Blair, Calhoun, Keran and Hall also appear to seek default
judgment.

Their motion, Doc. No. 152, asks for “an Order for Rule

54(c) ‘Demand Judgment’ for Default ‘Rule 55(d)[’] pursuant to the
Defendant’s [sic] acquiescence or, appearance with an affirmative
defense prior to the Doc.139 Granting Doc. 98, 110 and did failed
[sic] to timely object in doc’s. [sic] 144, 147 and can be construed
as agreement.” Id. at 2.

In this joint motion, these plaintiffs argue

that defendants failed to object to the granting of certain motions:
[Defendants] did not object to Plaintiff’(s) [sic] Doc. 98,

1

Doc. No. 98 is captioned “Plaintiff’s Request Fed. R. Civ. P. 16(a)(1),
(c)(3)(4): For Witness Disclosure Evidence.” On November 28, 2011, the Court
denied this motion because the affidavits attached to the motion did not
relate to any pending motion. The Court made clear, however, that plaintiffs
could submit proper affidavits in support of or in opposition to any motion
for summary judgment. Order, Doc. No. 102.
2
Doc. No. 110 is captioned “Request Leave To For
Proc. Rule 15 (d) Supplemental Pleadings.” Construing
seeking leave to amend the Amended Complaint, Doc. No.
claim for punitive damages, the Court granted Doc. No.
and Recommendation, pp. 1-2, 23-24.
3

[sic] Fed [sic] Civ. R.
this rambling motion as
53, in order to add a
110. Order and Report

Doc. No. 126 is captioned “Requested Leave to File for Supplemental
Summary Judgement on the Pleadings.” Construing this motion as seeking leave
to supplement plaintiffs’ motion for summary judgment, the Court granted the
motion only to the limited extent that it supplemented plaintiffs’ motion for
summary judgment. Order and Report and Recommendation, pp. 11, 24.

2

106,4 118,5 1316 claims, and Doc. 110 breach of contract
counterclaim(s) for additional punitive damages for 11th.
Dist. App. Ct. Decreed breach of a obligation for a specific
statute (2907.02(A)(1)(b)) without Force Spec. under
2929.11(B)(1)(a) sentence, OR a ‘Contrary to Law’ sentence
under 2929.11(B)(1)(b) (10 to 25 years), the plea involving
one (1) victim without “Open” trial court stated underlying
crimes.
Doc. No. 152, p. 2.

Referring to various cases and statutes, these

plaintiffs “Moves [sic] this Court for an Order of Estoppel for doc.
98 as unrebutted, unconstested affidavits, or an affirmative defense
or acquiescence default that remains without timely objections for
District Court Judge Frost Review.”

Id. at 3.

Although it is unclear exactly what these plaintiffs intend by
Doc. No. 152, the motion appears to seek, as does Doc. No. 150,
default judgment because defendants failed to respond to certain
motions.
As an initial matter, plaintiff Hall’s motion is unsigned, Doc.
No. 150, p. 5, and is therefore subject to an order to strike the

4

Doc. No. 106 is captioned “Leave of Court to Submit Motion to
Supplement Plaintiffs’ Request for Relief Plaintiffs’ Reasons for Supplement
to Request for Relief.” Construing the motion as seeking leave to add a claim
for punitive damages, the Court granted this motion. Order and Report and
Recommendation, pp. 1-2, 23-24.
5
Doc. No. 118 is captioned “Request Leave to Integrate Dockets No, [sic]
98 Into Supplemental Docket 106 as Factual Evidence Exhibit(s), and Exhibits
Herein Attached to Docket No. 106 as Confirming Courts:[.]” Construing the
motion as asking the Court to consider certain affidavits (submitted as Doc.
No. 98) in connection with requests for leave to add a claim for punitive
damages to the Amended Complaint, the Court granted that motion. Order and
Report and Recommendation, pp. 1-2, 23-24.
6

Doc. No. 131 is captioned “Plaintiff”s [sic] Request the Court to
Integrate Dockets No.: 98, Into Supplemental Docket No.: 106 as Factual
Evidence Evidence Exhibit(s), and Add Exhibit Herein Attached to Docket No.:
106 as Confirming Courts:[.]” As it did with Doc. No. 118, the Court granted
Doc. No. 110 after construing it as asking the Court to consider certain
affidavits (submitted as Doc. No. 98) in connection with requests for leave to
add a claim for punitive damages to the Amended Complaint. Order and Report
and Recommendation, pp. 1-2, 23-24.

3

filing.

Even considering the merits of these motions for default

judgment, however, the motions are without merit.
Rule 55 of the Federal Rules of Civil Procedure contemplates a
two-step process in obtaining a default judgment against a defendant
who has failed to plead or otherwise defend.

First, a plaintiff must

request from the Clerk of Court an entry of default, describing the
particulars of the defendant’s failure to plead or otherwise defend.
Fed. R. Civ. P. 55(a).

If default is entered by the Clerk, the

plaintiff must then move the court for entry of default judgment.
Fed. R. Civ. P. 55(b).

Here, plaintiffs’ requests for default

judgment do not follow this two-step process but instead collapse the
two steps into a single step.
plaintiffs’ requests.

This defect alone warrants denial of

See, e.g., Devlin v. Kalm, No. 11-1261, 2012

FED App. 0876N, at *20-21 (6th Cir. Aug. 9, 2012) (“[I]t was
procedurally improper for Plaintiff to move for entry of default
judgment without first obtaining an entry of default from the
clerk.”); Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796
F.2d 190, 193 (6th Cir. 1986) (“[E]ntry of default is just the first
procedural step on the road to obtaining a default judgment[.]”).
Even overlooking this defect, plaintiffs’ requests for default
judgment are without merit.

An entry of default is appropriate only

where a party “has failed to plead or otherwise defend[.]” Fed. R.
Civ. P. 55(a).

Here, defendants have filed an answer to the Amended

Complaint, Doc. No. 58, have filed a motion for judgment on the
pleadings, Doc. No. 85, and have responded in some fashion to some of
plaintiffs’ numerous motions.

See, e.g., Doc. No. 133 (motion to stay

consideration of plaintiffs’ motion for summary judgment).
4

See also

Doc. No. 97 (reply memorandum filed in response to plaintiffs’ motion
to dismiss, Doc. No. 91, which the Court construed as a memorandum in
opposition to defendants’ motion for judgment on the pleadings).
Defendants have not “failed to plead or otherwise defend” this action.
In addition, “[a] request to the clerk for entry of default under Rule
55(a) must be supported by an affidavit or other proof.”

McCreary v.

Wertanen, No. 10-1457, 2010 U.S. App. LEXIS 27404, at *4 (6th Cir.
Dec. 8, 2010).

Here, plaintiffs failed to attach any such affidavit

in support of their requests.

Doc. No. 134.

Based on this record, plaintiffs’ requests for default judgment
are without merit.

See also Amernational Industries, Inc. v.

Action-Tungsram, Inc., 925 F.2d 970, 976 (6th Cir. 1991) (“[J]udgment
by default is a drastic step which should be resorted to only in the
most extreme cases.”) (quoting United Coin Meter v. Seaboard Coastline
RR, 705 F.2d 839, 845 (6th Cir. 1983)).
II.

DEFENDANTS’ OBJECTIONS
Defendants object to the Magistrate Judge’s recommendation that

their motion for judgment on the pleadings, Doc. No. 85, be denied in
connection with plaintiffs’ ex post facto claims.

More specifically,

defendants contend that the Ohio Parole Board Handbook (“the
Handbook”) and Ohio’s Victims’ Rights Statutes do not violate the ex
post facto clause.

Defendants further assert that, “[t]o the extent

that Plaintiffs may have alleged an ex post facto claim regarding the
former [Ohio Parole Board] Guidelines Manual [and Matrix], such a
claim should have been dismissed as moot since the Guidelines Manual
was rescinded before Plaintiffs filed this case on December 3, 2010.”
Doc. No. 144, p. 6 n.4.

Plaintiffs have responded to these
5

objections, insisting that defendants have violated the ex post facto
clause.
A.

Doc. No. 149.

The Court shall address each argument in turn.

The Handbook

Defendants contend that the Handbook cannot violate the ex post
facto clause because it is neither a law nor a guideline, but simply a
compilation of existing Ohio laws and regulations.

Plaintiffs

disagree, arguing that the Handbook constitutes a law and that the
Ohio Adult Parole Authority (“OAPA”) utilizes the Handbook in making
parole decisions.
The United States Constitution provides that no “ex post facto
Law shall be passed.”

U.S. Const., Art. I, § 9, cl. 3.

See also U.S.

Const., Art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex
post facto Law.”).

As the Magistrate Judge explained, the ex post

facto clause prohibits
“Congress from passing any law that (1) retroactively
imposes punishment for an act that was not punishable when
committed, (2) retroactively increases the punishment for a
crime after its commission, or (3) deprives one charged with
a crime of a defense that was available at the time the
crime was committed.”
Order and Report and Recommendation, p. 9 (quoting Collins v.
Youngblood, 497 U.S. 37, 42 (1990)).
Here, plaintiffs assert that the OAPA uses the Handbook in
rendering parole decisions and that its use of the Handbook is
“therefore subject to the Court’s scrutiny.”

Doc. No. 149, pp. 2-3.

However, plaintiffs allege no fact in support of this assertion. The
Handbook dated April 1, 2010, attached to the Amended Complaint, Doc.
No. 53, pp. 19-28, simply refers to a variety of policies, statutes
and administrative rules applicable to the parole process.

6

See, e.g.,

id. at 19.

The Handbook also explains that, although the Ohio Parole

Board previously considered the Ohio Parole Board Guidelines Manual,
it no longer utilizes that resource:

“Accordingly, after April 1,

2010, the Board will continue to exercise its discretionary authority
solely by reference to Ohio statute and administrative code
provisions.”

Id. at 20 (emphasis added).

Indeed, the Handbook, which

appears to be simply a compilation of various statutes and laws, goes
on to detail certain factors that the parole board must, under O.A.C.
§ 5120:1-1-07, consider when determining an inmate’s suitability for
release.

Id. at 19-20.

Based on this record, plaintiffs’ assertion

that the Handbook is used in making parole decisions amounts to
nothing more than unsubstantiated speculation, which is insufficient
at the pleading stage. See, e.g., Bell Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Accordingly, the Court cannot conclude that plaintiffs have stated a
colorable claim that the Handbook constitutes a law that violates the
ex post facto clause.
B.

Ohio’s Victims’ Rights Statutes

Defendants next complain that, in construing plaintiffs’
pleadings as alleging that current Ohio parole statutes or laws
violate the ex post facto clause, the Magistrate Judge failed to
specify precisely which Ohio parole statutes or laws are challenged by
plaintiffs.

Defendants contend that plaintiffs challenge only Ohio’s

victims’ rights and notice statutes, i.e., O.R.C. §§ 2967.03, 2967.12,
5149.101 and O.R.C. Chapter 2930 (collectively, “Victims’ Rights
Statutes”).

Doc. No. 144, p. 8.

Defendants also argue that this

Court has consistently found that such Victims’ Rights Statutes are
merely procedural and do not increase a prisoner’s punishment.
7

Id. at

8-9 (collecting cases).
Plaintiffs respond that they “have never challenged the Courts’
ruling that the Ohio Victims’ Services, (OVS) under Senate Bill 2 is
not an Ex Post Facto violation as a notification law.”
p. 3.

Doc. No. 149,

Instead, plaintiffs appear to argue that the OAPA is improperly

using Ohio Victims’ Services and is “overstepping its boundaries.”
Id. at 4.

More specifically, plaintiffs complain that, once the OAPA

has granted parole, “before the inmate is actually released[,] a
petition comes into the Ohio Adult Parole Authority from the Ohio
Victims’ Services and the inmates’ granted parole is stopped.”

Id.

Plaintiffs further complain that the inmate does not attend any second
parole hearing that is thereafter held. Id. at 4-5.

Plaintiffs

complain that “having their paroles revoked by the Ohio Adult Parole
Authority due to a petition from the Ohio Victims’ Services” is the ex
post facto claim that “Plaintiffs have made from the very beginning
against Defendants.”

Id. at 5.

According to plaintiffs, these

subsequent parole hearings “are not only sinister, but secretive and a
direct violation, of Senate Bill 299, Statute 5149.10[.]”

Id.

As an initial matter, the Court notes that plaintiffs’ current
articulation of their ex post facto allegations were not clearly
framed when the Magistrate Judge issued her recommendation.

See Order

and Report and Recommendation, p. 3 (noting the difficulty in
deciphering plaintiffs’ claims).

In any event, plaintiffs now clarify

that their ex post facto claims rest on the ability of the Office of
Victims’ Services (“OVS”) to effect hearing before the entire parole
board.
Turning to this claim, the Court observes that the OVS was
created to “provide assistance to victims of crime, victims’
8

representatives. . . and members of the victim’s family.”
5120.60(A), (B).

O.R.C. §

The OVS employs at least three people who “help

parole board hearing officers identify victims’ issues and [] make
recommendations to the parole board[.]”

O.R.C. § 5120.60(E).

In

addition, the Governor and the Director of the Ohio Department of
Rehabilitation and Correction must appoint as one member of the parole
board and individual who is a victim of a crime, a member of the
victim’s family or a person “who represents an organization that
advocates for the rights of victims of crime.”

O.R.C. § 5149.10(B).

Ohio law identifies the OVS as one of several entities that may
petition the parole board for a full board hearing.
5149.101(A)(1).

O.R.C.

§

See Arnold v. Ohio Adult Parole Auth., 2011 WL 447318

(Ohio App. 10 Dist. Sept. 27, 2011).

If the inmate was, like most of

the plaintiffs, convicted of aggravated murder or murder, the board
must hold a full board hearing.

O.R.C. § 5149.101(A)(2).

At the full

board hearing, the board must permit various persons to testify or to
submit written statements, including “[c]ounsel or some other person
designated by the prisoner as a representative[.]”
5149.101(B)(6).

O.R.C. §

Although “[t]he prisoner being considered for parole

has no right to be present at the hearing, [he] may be represented by
counsel or some other person designated by the prisoner.”
5149.101(C).

O.R.C. §

The board may or may not approve a recommendation for

the parole of a prisoner, or may defer its decision until a later full
board hearing, if there is an objection at the full board hearing to
that recommendation.

Id.

It now appears that plaintiffs’ ex post facto claims rest on,
inter alia, the provisions of O.R.C. § 5149.101, which detail how the

9

OVS may petition a full board hearing.

However, as defendants point

out and as plaintiffs acknowledge, this Court has previously concluded
that this victims’ rights statute is merely procedural and, even if
applied retroactively, does not increase an inmate’s punishment.

See,

e.g., Bruggeman v. Collins, No. 09-381, 2011 U.S. Dist. LEXIS 2819, at
*20-21 (S.D. Ohio Jan. 12, 2011);
2d 827, 837 (S.D. Ohio 2010).

Ridenour v. Collins, 692 F. Supp.

Cf. Greene v. Knab, No. 2:09-CV-258,

2010 U.S. Dist. LEXIS 90957 (S.D. Ohio Sept. 2, 2010) (rejecting
argument that that the Ohio Parole Board unconstitutionally denied
inmate release on parole by retroactively applying O.R.C. § 5149.101
and parole guidelines that were not in effect at the time he was
sentenced); Clumm v. Warden, Chillicothe Corr. Inst., No. 2:08-cv-365,
2008 U.S. Dist. LEXIS 70877, at *3-7 (S.D. Ohio Sept. 18, 2008)
(concluding, inter alia, that O.R.C. § 2967.12 is procedural and does
not violate the ex post facto clause).
Plaintiffs attempt to distinguish this line of cases, arguing
that these decisions simply characterize O.R.C. § 5149.101, as “a
notification law only in its practical application to pre-1996, ‘Old
Law Inmates.’”

Doc. No. 149, pp. 4-5.

Plaintiffs characterize their

claim as challenging, under the ex post facto clause, the grant of an
OVS petition for a full board hearing.

Id.

This is a distinction

without a difference, however, and this Court’s prior rejections of ex
post facto challenges to O.R.C. § 5149.101 expressly considered the
procedures about which plaintiffs now complain. Indeed, this Court has
expressly considered and rejected plaintiffs’ specific argument that a
petition by OVS under O.R.C. § 5149.101 automatically results in the
denial of parole and a longer sentence.
10

Ridenour, 692 F. Supp. 2d at

837.

Although OVS may petition for a full board hearing, the statute

does not mandate that the board deny an inmate parole even after a
full board hearing.

See O.R.C. § 5149.101(C) (“If there is an

objection at a full board hearing to a recommendation for the parole
of a prisoner, the board may approve or disapprove the recommendation
or defer its decision until a subsequent full board hearing.”)
(emphasis added). Under any circumstance, the board retains its
tradition, full discretion in deciding whether to grant or deny
parole.

See also Ridenour, 692 F. Supp. 2d at 837 (citing, inter

alia, Clumm, 2008 U.S. Dist. LEXIS 70877, at *3).

Accordingly, this

Court again reaffirms its conclusion that the retroactive application
of the VRS generally and O.R.C. § 5149.101 in particular does not
violate the ex post facto clause.
C.

The Ohio Parole Guidelines Manual

Defendants also argue that, to the extent that plaintiffs assert
ex post facto claims that rest on Ohio’s former parole guidelines,
such claims must be dismissed.

As previously set forth by the

Magistrate Judge, Order and Report and Recommendation, pp. 5-6, a
motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is
resolved by reference to the standard applicable to a motion to
dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
See also HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir.
2012).

Thus, all the factual allegations in the Amended Complaint are

accepted as true and a motion for judgment on the pleadings will be
granted only if the pleading fails to allege “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Corp. v.

See also Ashcroft v. Iqbal, 556
11

U.S. 662, 679 (2009) (“When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”).
However, a claim “requires more than labels and conclusions, and a
formulaic recitation of the elements of the cause of action will not
do.”

Twombly, 550 U.S. at 555.

See also HDC, LLC, 675 F.3d at 611

(“Merely pleading facts that are consistent with a defendant’s
liability or that permit the court to infer misconduct is insufficient
to constitute a plausible claim.”).

In other words, “[f]actual

allegations must be enough to raise a right to relief above the
speculative level[.]”

Twombly, 550 U.S. at 555.

In addition,

although the Court’s decision “rests primarily upon allegations in the
complaint, ‘matters of public record, orders, items appearing in the
record of the case, and exhibits attached to the complaint[] also may
be taken into account.’”

Barany-Snyder v. Weiner, 539 F.3d 327, 332

(6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502
(6th Cir. 2001)).
The United States Court of Appeals for the Sixth Circuit
previously detailed the history of Ohio’s sentencing scheme and
discretionary parole guidelines:
Under Ohio’s former sentencing law, Ohio inmates were given
an indeterminate sentence comprised of a minimum and a
maximum sentence. An inmate became eligible for parole
after serving his or her minimum sentence, minus credit for
good behavior. Parole decisions were delegated to the Ohio
Adult Parole Authority (“OAPA”). It determined when release
was appropriate for each inmate. In 1995, Ohio adopted a
new sentencing system for crimes committed after July 1,
1996. See OHIO REV. CODE § 5120 et seq. Under the new law,
indeterminate sentences were abandoned in favor of fixed
terms of incarceration determined by the defendant’s
presiding judge. The new system does not apply
retroactively to Ohio inmates sentenced under the former
12

sentencing scheme.

OHIO REV. CODE § 5120.021(A).

In 1998, the OAPA adopted guidelines designed to guide the
discretion of parole officers making release determinations
for Ohio inmates sentenced prior to July 1, 1996.7 The
guidelines are similar to the guidelines used by the United
States Parole Commission, using two factors to determine how
long a prisoner should be incarcerated before parole: (1)
the seriousness of the inmate’s crime, and (2) the “risk of
reoffense,” based on the inmate’s prior criminal conduct and
performance on probation and parole. The presumptive amount
of time an inmate serves is determined by finding the
intersection on a grid between the inmate’s offense category
and his or her risk of reoffense. Parole officials,
however, retain discretion to depart from the guidelines,
but may not retain an inmate beyond the maximum sentence.
See OHIO REV. CODE § 2967.03 (describing the OAPA’s broad
discretionary powers).
Michael v. Ghee, 498 F.3d 372, 374 (6th Cir. 2007).

The OAPA

subsequently amended these discretionary guidelines in 2000:
In response to Senate Bill 2, the OAPA revised the parole
guidelines in 1998, and again in 2000, to give a projected
release date to those inmates who were convicted prior to 1
July 1996 and who did not get the benefit of a definite
sentence. These guidelines assigned a numerical offense
category to an inmate based upon the nature of his or her
crime, and a risk score based upon several factors including
the inmate’s criminal record and institutional behavior.
The two numbers were then placed on a grid which determined
the recommended range of time in terms of the number of
months that the inmate should serve before he or she would
be considered suitable for parole release (“the guideline
range”). The projected release date was set for a period of
time within the guideline range. These guidelines were not
mandatory and the OAPA had the discretion to depart upward
or downward from the guideline score.
Mubashshir v. Sheldon, No. 1:11-CV-1623, 2012 U.S. Dist. LEXIS 344, at
*2-3 (N.D. Ohio Jan. 3, 2012).

The parole guidelines were again

amended in 2007, but ultimately abandoned by the parole board in 2010:

7

“Prior to 1987, no guidelines were issued to guide the parole board's
discretion in making sentencing determinations. In 1987, the parole board
adopted guidelines to assist it in exercising its discretion.” Michael v.
Ghee, 498 F.3d 372, 374 (6th Cir. 2007). Eleven years later, the OAPA again
amended the guidelines in 1998. Id. at 384.

13

The Ohio Parole Board Guidelines Manual and Matrix,
initially developed in 1998, and most recently amended in
2007, was created and used by the Board to promote
consistent decision making for a large number of parole
eligible inmates. . . . Ohio’s change to a determinate
sentencing system in 1996 (Senate Bill 2) has, over time,
dramatically transformed Ohio’s parole eligible population.
. . . Therefore, use of the Ohio Parole Board Guidelines
Manual is no longer practical or effective. Accordingly,
after April 1, 2010, the Board will continue to exercise its
discretionary release authority solely by reference to Ohio
statute and administrative code provisions. The Board will
no longer use the Ohio Parole Board Guidelines Manual and
Matrix in the release decision process.
Handbook, dated April 1, 2010, attached to Amended Complaint, p. 20.
Defendants argue that, “[t]o the extent that Plaintiffs may have
alleged an ex post facto claim regarding the former Guidelines Manual,
such a claim should have been dismissed as moot since the Guidelines
Manual was rescinded [on April 1, 2010] before Plaintiffs filed this
case on December 3, 2010.”

Doc. No. 144, p. 6 n.4.

See also

Defendants’ Reply in Support of Motion for Judgment on the Pleadings
(Doc. 85), No. 97, p. 3 (stating, inter alia, that the 2007 parole
guidelines were rescinded “because the unique characteristics of the
remaining parole eligible offenders made it impossible to generalize
release decisions”) (citing Handbook, attached to Amended Complaint).
In response, plaintiffs confirm that they intend to assert ex
post facto claims based on “former Ohio Parole Board Guidelines Manual
and Matrix[,]” insisting that they have made such claims “from the
beginning of this lawsuit[.]”

Doc. No. 149, p. 1.

Plaintiffs

disagree that such claims are moot, arguing that they “are still
serving out the continuances they received under those former
Guidelines until such time as they have new parole hearings.”

Id.

Plaintiffs therefore contend that the former guidelines, which were

14

not in effect when plaintiffs were sentenced, are not moot as to them.
Id. at 1-2.

Plaintiffs also insist that they “have a minimum sentence

since all Plaintiffs had a minimum parole eligibility date.”
2.

Id. at

Plaintiffs further argue that “Defendants admit to the Ex Post

Facto violation by admitting that the Guidelines never applied to
Plaintiffs[.]”

Id.

Again, the Court notes that the Amended Complaint is not a model
of clarity.

Although plaintiffs now confirm that they intend to

challenge former guidelines, it is not clear from the rambling Amended
Complaint which former guidelines (i.e., those developed in 1998, 2000
or 2007 or all of these former guidelines) applied to (and are
challenged by) plaintiffs.8

The Court is unable to locate any specific

allegations as to any set of former guidelines as to each specific
plaintiff.

Stated differently, the Amended Complaint, which the Court

construes liberally, see Williams v. Curtin, 631 F.3d 380, 383 (6th
Cir. 2011), is devoid of any factual allegations that any of these
former guidelines present a “significant risk” of increasing the
amount of time actually served by these plaintiffs.
F.3d at 383.

See Michael, 498

For example, although plaintiffs cite to cases that

8

Although all plaintiffs were convicted prior to 1996, it is not
immediately clear from the Amended Complaint when exactly each plaintiff was
convicted. When each plaintiff was convicted affects the ex post facto
analysis. For example, the Sixth Circuit previously explained how a
conviction date plays a role in determining whether there has been an ex post
facto violation:
For plaintiffs who were convicted before the 1987 guidelines were
in effect, the relevant ex post facto inquiry is whether the
present guidelines created a sufficient risk of increased
punishment compared to the pre-1987 standards; for plaintiffs
convicted after 1987, the comparison is between the 1987
guidelines and the 1998 guidelines.
Michael, 498 F.3d at 384.

15

purportedly address the 2007 guidelines, see, e.g., Amended Complaint,
pp. 2-3, the Court cannot find any factual allegations as to an ex
post facto violation based on the application of former guidelines to
the plaintiffs in this action.

Indeed, although the Amended Complaint

includes some legal assertions related to parole guidelines generally,
see, e.g., Amended Complaint, p. 5,9 there are no factual allegations
as to any substantial risk of increased prison time or even ex post
facto violations based on former guidelines.

For example, plaintiffs

allege generally that the OVS, through various statutes and petitions,
prejudiced plaintiff Berk’s hearing on parole eligibility and
suitability.

Amended Complaint, p. 6.

Plaintiffs go on to allege

that various versions of the Handbook and undefined “S.B.2 Procedures
have increased the length of Berks [sic] incarceration before parole
based on circumstance that have not changed since Berk was sentenced
by operation of law and has no control.”

Id.

However, the Amended

Complaint does not allege that the parole board considered any of the
former parole guidelines when it purportedly increased the length of
plaintiff Berk’s incarceration or that former guidelines played any
role whatsoever in that decision.

Stated differently, there are no

factual allegations that any set of former guidelines created a
significant risk of increasing the amount of time actually served by
Berk.
The allegations specific to plaintiffs Blair, Hall and Banks are

9

“Whereas, Now! The defendants state that the prior usurped 1998,
2005, and 2007 Parole Board Guidelines ‘artifice Hearing’ do not
contain recoupment or restoration provisions for the Operations of Law
minimum considerations of parole eligibility or suitability standards
ab initio[.]”
16

similarly deficient.

Rather than alleging that the parole board used

a set of former guidelines to increase their sentences, these
plaintiffs instead focus primarily on the role of OVS, testimony at
full board hearings and O.R.C. § 5149.101.

Id. at 7-9.

these attacks fail for the reasons previously discussed.

However,
Although

plaintiffs indicate in their response to defendants’ objections that
they intend to challenge former parole guidelines, Doc. No. 149, pp.
1-2, the Amended Complaint, which is the determinative pleading, makes
no such factual allegations.

Although the Court must and does

construe the Amended Complaint liberally, the Court cannot fabricate
factual allegations to support plaintiffs’ legal conclusions.

See,

e.g., Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (“As
[plaintiff] Grinter pleads a legal conclusion without surrounding
facts to support the conclusion stated in this claim, he fails to
state a claim.”);

Kamppi v. Ghee, No. 99-3459, 208 F.3d 213 (table),

2000 WL 303018, at *1 (6th Cir. Mar. 14, 2000) (“Thus, the less
stringent standard for pro se plaintiffs does not compel the courts to
conjure up unpleaded facts to support conclusory allegations.”).

See

also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to
raise a right to relief above the speculative level[.]”).

Therefore,

notwithstanding opportunities to amend their complaint, Doc. Nos. 53,
139, plaintiffs offer nothing more than legal conclusions that their
constitutional rights have been violated, which is insufficient at
this stage.

Id.; Twombly, 550 U.S. at 555 (“[A claim] requires more

than labels and conclusions, and a formulaic recitation of the
elements of the cause of action will not do.”).

Based on this record,

plaintiffs have failed to state an ex post facto claim based on former
17

guidelines.
In short, the Court concludes that plaintiffs have failed to
state a colorable claim under the ex post facto clause of the United
States Constitution.
Having carefully reviewed the Order and Report and Recommendation
and the parties’ objections, the Court GRANTS defendants’ objections
as they relate to their motion for judgment on the pleadings in
connection with plaintiffs’ ex post facto claims.

With that

exception, the Order and Report and Recommendation, Doc. No. 139, is
ADOPTED AND AFFIRMED.

Specifically, defendants’ motion for judgment

on the pleadings, Doc. No. 85, is GRANTED in its entirety; plaintiffs’
motion to dismiss the motion for judgment on the pleadings, Doc. No.
91, is DENIED; plaintiffs’ motion for summary judgment, Doc. No. 125,
is DENIED in its entirety; plaintiffs’ motion for a temporary
restraining order/preliminary injunction, Doc. No. 112, is also
DENIED.
In addition, defendants’ motion to stay discovery, Doc. No. 145,
is DENIED as moot; and plaintiff Hall’s motion for default judgment,
Doc. No. 150, is DENIED; plaintiffs’ motion to add Jeff Blair’s
signature to the rebuttal to defendants’ motion to stay discovery,
Doc. No. 151, is GRANTED; and the motion of plaintiffs Berk, Banks,
Blair, Calhoun, Keran and Hall for default judgment, Doc. No. 152, is
DENIED.
The Clerk is DIRECTED to enter FINAL JUDGMENT in this case.
/s/ Gregory L. Frost____
Gregory L. Frost
United States District Judge
18