Kinney v. Mohr et al

Filing 83

REPORT AND RECOMMENDATION AND ORDER - the Court RECOMMENDS that 78 MOTION for Judgment on the Pleadings be denied. Objections to R&R due by 5/3/2017. The Motion to Strike (Doc. 79 ) is GRANTED. Signed by Magistrate Judge Terence P. Kemp on 4/19/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jack W. Kinney,

:

Plaintiff,

:

v.

:

Case No. 2:13-cv-1229

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Gary C. Mohr, et al.
:
Defendants.
:

REPORT AND RECOMMENDATION AND ORDER
This prisoner civil rights case is currently before the
Court to consider the defendants’ motion for judgment on the
pleadings.

Plaintiff Jack W. Kinney has filed a response and a

motion to strike Exhibit A attached to defendants’ answer to the
amended complaint.

Both motions are ripe for decision.

For the

following reasons, the Court will recommend that the motion for
judgment on the pleadings be denied.

Further, the Court will

grant the motion to strike.
I.

Background

At the time Mr. Kinney filed this action he was an inmate at
the Madison Correctional Institution (MCI).

In granting Mr.

Kinney leave to file a second amended complaint, the Court set
forth the following relevant factual background:
[Mr. McKinney] brought this lawsuit pursuant to 42
U.S.C. §1983 alleging that the defendants violated his
Fourteenth Amendment rights when they willfully denied
him a meaningful statutorily mandated parole
eligibility hearing. Ohio House Bill 86 §10 came into
effect on September 30, 2011, which directed the Ohio
Department of Rehabilitation and Corrections (“ODRC”)

to “thoroughly review the cases of all parole-eligible
inmates who are sixty-five years of age and older and
who have had a statutory first parole consideration
hearing.” The group of inmates whose cases were to be
reviewed included Mr. Kinney. The statute required
the ODRC to submit to the General Assembly a report on
the circumstances of each of the qualifying prisoners.
Mr. Kinney was subsequently given a parole hearing on
April 23, 2012, and parole was denied. Sometime after
the hearing Mr. Kinney learned that the report relied
upon by the parole board contained false information
about his conviction. Specifically, the report
claimed that Mr. Kinney “entered the home of the male
victim and his wife; he shot both victims in the head,
then turned on his wife and shot her in the head.”
The report falsely stated that Mr. Kinney was denied
release in his 2007 parole hearing because he had
raped, sodomized and shot a female victim. It further
added that Mr. Kinney had “admitted that he planned to
kill all three victims.” In actuality, Mr. Kinney
shot one person in the leg, another in the chin, and
his wife in the shoulder, and there was no evidence or
admission of premeditation.
On December 11, 2013, Mr. Kinney filed this
action pro se (Doc. 1), and on April 3, 2014, he filed
a document which the Court deemed to be an amended
complaint. (Doc. 18). He argues that information was
intentionally fabricated in order to mislead the Ohio
General Assembly and justify denying him meaningful
parole consideration. In the concluding paragraph of
the amended complaint Mr. Kinney requested that he
receive a new parole hearing and a corrected record,
as well as costs. Id. at 15. On July 9, 2015, Mr.
Kinney’s second request for court appointed counsel
was granted. (Doc. 57). Mr. Kinney was ultimately
granted parole by the full Parole Board on November
19, 2015, on the condition that he complete a yearlong reintegration program.
See Order (Doc. 74), pp. 1-2.

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The second amended complaint, filed with the assistance of
counsel, leaves these factual allegations unchanged.

Instead,

rather than seek a new parole hearing, Mr. Kinney’s prayer for
relief seeks his immediate release from prison, monetary
damages, attorney fees and costs.

Shortly after Mr. Kinney

filed his second amended complaint, he was released from prison
in December, 2016. He is currently on parole.
Defendants answered the second amended complaint on October
11, 2016.

Exhibit A to the answer is a copy of the parole

board’s decision in Mr. Kinney’s case dated April 23, 2012.

At

the same time, Defendants filed a motion for judgment on the
pleadings.

Defendants rely on the parole board decision in

their motion for judgment on the pleadings.
strike Exhibit A.

Mr. Kinney moved to

Alternatively, in responding to the motion

for judgment on the pleadings, Mr. Kinney asked that the motion
be converted to a motion for summary judgment if the Court
considers the exhibit.

The Court will turn first to the issues

raised by the motion to strike.
II.

Motion to Strike

Mr. Kinney advances several reasons in support of his
motion to strike.

First, he explains that he did not attach the

2012 parole board decision to, nor refer to it in, his second
amended complaint.

Additionally, he asserts that he has not

been permitted to take depositions to address the accuracy of
this unsigned document.

Finally, Mr. Kinney argues that this

exhibit does not resolve the central issue of his claim.
Defendants, in their motion for judgment on the pleadings,
assert that it is appropriate for the Court to consider the
information contained in the exhibit at the pleading stage.
They make two arguments as to why this is so.

First, they

suggest that under Rule 10(c) it is proper for the Court to
consider any written instruments attached as an exhibit to a

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pleading.

Further, they argue that, although generally, a court

may not consider matters outside the pleadings when ruling on a
motion to dismiss (and, by extension a motion for judgment on
the pleadings), the Court should consider the Ohio Parole Board
decision because Mr. Kinney specifically referred to it in his
second amended complaint at Paragraphs 2, 25-26, 30, 32-34 and
36.
To the extent that defendants suggest that Rule 10(c) is
applicable here, the unauthenticated Ohio Parole Board Decision
is not a “written instrument” as contemplated by that Rule.
Rather, as explained by the court in Copeland v. Aerisyn, LLC,
2011 WL 2181497, *1 (E.D. Tenn. June 3, 2011):
An “instrument” is defined by Black’s Law
Dictionary (9th ed. 2009) as “[a] written legal
document that defines rights, duties, entitlements, or
liabilities, such as a contract, will, promissory
note, or share certificate.” As discussed in Rose v.
Bartle, 871 F.2d 331, 334 n.3 (3d Cir. 1989), types of
exhibits ordinarily incorporated within the pleadings
under Fed.R.Civ.P. 10(c), generally include contracts,
notes, and other “writing[s] on which [a party’s]
action or defense is based.” See also DeMarco v.
DepoTech Corp., 149 F. Supp. 2d 1212,1219 (S.D. Cal.
2001) (defining “written instrument” to include
examples “such as a deed, will, bond, lease, insurance
policy or security agreement”) (citations omitted);
Benzone v. Morgan Stanley, No. 3:03-0159, 2004 WL
62747 at *2 (M.D. Tenn. Jan. 8, 2004).’
In that case, the court concluded that deposition testimony and
notes from witnesses “would be considered evidentiary support
and their inclusion at the initial pleading stage procedurally
‘blurs the distinction between summary judgment and dismissal
for failure to state a claim upon which relief could be granted’
aspects of litigation.”
3.

Id., quoting Rose, 871 F.2d at 340 n.

Other courts have also held that the term “written

instruments” generally includes “documents evidencing legal

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right or duties such as deeds, wills, bonds, leases, insurance
policies or security agreements.”

Correction Officers

Benevolent Ass’n of Rockland County v. Kralik, 226 F.R.D. 175,
176 (S.D.N.Y. 2005) (letters not written instruments for
purposes of Rule 10(c)).
Defendants do not cite to any authority for their
suggestion that an Ohio Parole Board decision falls within the
definition of “written instrument” as that term is typically
understood.

To the extent that they cite any authority at all,

the cases merely reinforce that an answer is a pleading, making
the language of Rule 10(c) applicable.

For example, in Hines v.

G. Reynolds Sims & Assoc., 2013 WL 1774938 (E.D. Mich. Apr. 25,
2013), the court, in considering a motion for judgment on the
pleadings, noted that an answer was a pleading and concluding
that a release signed by the plaintiff and attached to that
answer was required to be considered as “‘part of the pleadings
for all purposes.’

Fed.R.Civ.P. 10(c).’”

Similarly, in Menifee

v. Rexam, Inc., 2005 WL 2230257 (N.D. Ohio Sept. 13, 2005), the
court, ruling on a motion for judgment on the pleadings in an
ERISA action, found medical evaluations appended to an answer to
be proper for consideration when the plaintiff had referred to
his application for benefits in his complaint and those
documents were part of that application.
With respect to defendants’ remaining argument, the Court
of Appeals has recognized that in considering a motion to
dismiss, courts “‘primarily consider the allegations in the
complaint, although 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.’”

Amini v.

Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001), quoting
Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997).
Additionally, the Court of Appeals has held that “‘documents

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that a defendant attached to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to [the plaintiff’s] claim.’”

Id.,

quoting Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997).
In short, the Court does not find defendants’ argument
persuasive.

As Mr. Kinney notes, the Parole Board decision is

not specifically referred to in the second amended complaint.
As a result, even if the information contained in this
unauthenticated document arguably relates to Mr. Kinney’s
claims, that is not enough to permit its consideration at this
stage of the case.

The Court will therefore not consider the

parole board decision in connection with the motion for judgment
on the pleadings.

Consequently, the Court will grant the motion

to strike.
III. The Motion for Judgment on the Pleadings
Turning to the motion for judgment on the pleadings,
Defendants raise two issues.

First, they contend that Mr.

Kinney’s claim regarding his immediate release from
incarceration is moot because he already has been released.

In

response, Mr. Kinney notes that he no longer seeks an order of
release from the Court.

Consequently, the Court will not

address this issue.
The second issue Defendants raise is that Mr. Kinney has
not stated a Due Process claim because the parole board did not
rely on incorrect information in denying Mr. Kinney’s parole in
2012.

In response, Mr. Kinney contends that the Court already

has determined that he has alleged a violation of his due
process rights sufficient to survive the initial pleading stage.
A. Legal Standard
A motion for judgment on the pleadings filed under Fed. R.
Civ. P. 12(c) attacks the sufficiency of the pleadings and is
evaluated under the same standard as a motion to dismiss.

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Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979). In ruling upon such motion, the Court must accept as true
all well-pleaded material allegations of the pleadings of the
opposing party, and the motion may be granted only if the moving
party is clearly entitled to judgment. Southern Ohio Bank v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480
(6th Cir. 1973). The same rules which apply to judging the
sufficiency of the pleadings apply to a Rule 12(c) motion as to
a motion filed under Rule 12(b)(6); that is, the Court must
separate factual allegations from legal conclusions, and may
consider as true only those factual allegations which meet a
threshold test for plausibility. See, e.g., Tucker v.
Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
However, a court “need not accept as true legal conclusions
or unwarranted factual inferences.” JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citations
omitted). A court should grant a motion for judgment on the
pleadings under Fed. R. Civ. P. 12(c) only if “no material issue
of fact exists and the party making the motion is entitled to
judgment as a matter of law.” Id. at 582 (internal citations
omitted). To survive a motion for judgment on the pleadings, a
plaintiff's complaint “must contain direct or inferential
allegations respecting all the material elements under some
viable legal theory.” McGath v. Hamilton Local School Dist.,
2012 WL 262336, at *3 (S.D. Ohio Jan.30, 2012) (internal
citations omitted).

“The factual allegations in the complaint

need to be sufficient to give notice to the defendant as to what
claims are alleged, and the plaintiff must plead ‘sufficient
factual matter’ to render the legal claim plausible, i.e., more
than merely possible.” Fritz v. Charter Tp. of Comstock, 592

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F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556
U.S. 662 (2009)).
B.

Discussion

As Mr. Kinney notes, the issues raised by the
defendants’ current motion previously have been addressed
at some length by the Court.

Specifically, the Court

addressed these issues in both a Report and Recommendation
issued July 18, 2014 (Doc. 30) recommending the denial of
defendants’ motion to dismiss and the Opinion and Order
issued on March 16, 2015 (Doc. 46), adopting and affirming
that Report and Recommendation.

Most recently, the Court

addressed these issues in granting Mr. Kinney leave to file
a second amended complaint (Doc. 74).

As the Court

consistently has explained, if it is found that the Parole
Board relied on false information in denying Mr. Kinney’s
parole, this could constitute a due process violation.
The same test of the sufficiency of Mr. Kinney’s
complaint applies in the context of Defendants’ motion for
judgment on the pleadings.

To the extent Defendants rely

on the Ohio Parole Board decision attached as an exhibit to
their answer as a basis for distinguishing their current
motion, as set forth above, that exhibit has been stricken.
Consequently, for the same reasons set forth by the Court
in its earlier rulings, the Court will recommend that
defendants’ motions for judgment on the pleadings be
denied.
IV.

Recommendation and Order

For the reasons stated above, the Court recommends that the
motion for judgment on the pleadings (Doc. 78) be denied.
motion to strike (Doc. 79) is granted.

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The

The Clerk is directed to

strike Exhibit A attached to defendants’ answer to the second
amended complaint (Doc. 77-1).
OBJECTIONS TO REPORT AND RECOMMENDATION
If any party objects to this Report and Recommendation,
that party may, within fourteen days of the date of this Report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the
objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
MOTION FOR RECONSIDERATION OF ORDER
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a). The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections

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are filed and replies by the objecting party are due seven days
thereafter. The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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