Hurst v. Pribe et al

Filing 2

REPORT AND RECOMMENDATION in that it is RECOMMENDED that the complaint be DISMISSED for failure to state a claim upon which relief can be granted. The Court GRANTS Plaintiff's Motion for Leave to Proceed In Forma Pauperis. Objections to R&R due by 12/29/2014. Signed by Magistrate Judge Terence P Kemp on 12/11/14. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark Edward Hurst,

:

Plaintiff,

:

v.

:
:

Jenneifer A. Pribe,
et al.,

Case No. 2:14-cv-2552
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION
Plaintiff, Mark Edward Hurst, a non-prisoner pro se
litigant, filed this action asking for leave to proceed in forma
pauperis.

Mr. Hurst qualifies financially for in forma pauperis

status, so his motion for leave to proceed (Doc. 1) is granted.
However, the Court will recommend that the complaint be dismissed
for failure to state a claim upon which relief can be granted.
I.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if ... (B) the
action ... is frivolous or malicious [or] fails to state a claim
on which relief can be granted....”

The purpose of this section

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved.

See Neitzke v. Williams, 490 U.S. 319 (1989).

A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact.

See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to
immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing
fantastic or delusional scenarios, claims with which federal

district judges are all too familiar.”

Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

Pro se complaints are to be

construed liberally in favor of the pro se party.
Kerner, 404 U.S. 519 (1972).

See Haines v.

The Court is required to review Mr.

Hurst’s complaint under these standards.
II.
The complaint, though somewhat lengthy, is straightforward.
In 2008, Mr. Hurst was convicted in the Licking County, Ohio
Court of Common Pleas of various offenses and sentenced to a
total of thirty-nine months of imprisonment, to be followed by
five years of post-release control.

Mr. Hurst claims, for

various reasons, that the decision of the Ohio Adult Parole
Authority (APA) to revoke his parole in 2012 and to sentence him
to prison was unlawful.

He alleges that he was not on parole and

had served his entire sentence so that there was “nothing to
revoke,” and that the revocation was unsupported by the evidence
presented, which apparently consisted of misdemeanor charges that
were dismissed by the state court.

He seeks damages for the time

spent in prison and for being separated from his family.

He also

seeks a declaratory judgment that the APA improperly increased
his conditions of supervision by imposing special conditions in
2012 and 2013 which had not, before that time, been a part of the
conditions of his post-release control, and that the sentence of
post-release control imposed upon him by the trial court
unlawfully delegated judicial authority to the APA to impose such
conditions without affording him due process.

He does not

allege, however, that he has ever challenged any of the APA’s
actions through the state court system, nor does he allege that a
-2-

state court has found the revocation of his parole or the
imposition of these additional conditions to have been unlawful.
III.
The Court turns first to Mr. Hurst’s claim for damages due
to unlawful incarceration.

That claim (Counts One and Two of his

complaint) is, under binding United States Supreme Court
precedent, barred unless and until there has been a prior
judicial determination that he was unlawfully incarcerated.
Simply put, someone who has been imprisoned by the state system
(including by parole authorities) cannot use a federal court
damages action to challenge the legality of that imprisonment.
The Supreme Court decided in Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), that in order to succeed on a claim for money
damages for wrongful imprisonment, the plaintiff "must prove that
a conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by
a federal court's issuance of a writ of habeas corpus."

If a

judgment in favor of the plaintiff in a §1983 action would
necessarily imply that a conviction or sentence was invalid, the
court must dismiss the action unless the conviction or sentence
has actually been invalidated.

Id.

It follows that if plaintiff

has not alleged that his conviction or sentence (including a
revocation or denial of parole) has been found, in some case
other than this one, to be unlawful, he cannot maintain a claim
for damages arising out of that conviction or sentence by way of
his current §1983 complaint.
Heck involved an inmate who had been imprisoned as a result
of a state court conviction.

However, it has been applied to

parole revocation proceedings as well.

For example, in Burkette

v. Waring, 2010 WL 2572930 (E.D. Mich. June 22, 2010), the
plaintiff alleged - just as Mr. Hurst alleges here - that the
-3-

state parole authorities violated his constitutional rights by
revoking his parole.

However, he “did not challenge the validity

of the Parole Board's decision to revoke his parole and did not
seek a writ of habeas corpus challenging the lawfulness of his
incarceration as a result of being found guilty of parole
violations.”

Id. at *3.

If the federal court were to award him

damages, it would necessarily have to find that the parole
revocation proceedings were invalid.

Under Heck, that is not

permitted; as the Burkette court held, “[b]ecause a successful
due process or probable cause challenge to Plaintiff's parole
revocation would necessarily imply the invalidity of that
underlying parole revocation, Plaintiff's § 1983 claims
challenging his parole revocation and subsequent incarceration
are barred by Heck.”

Id.

See also Linton v. Sullivan, 182 F.3d

912, *1 (6th Cir. July 6, 1999)(unpublished), where the Court of
Appeals held that this type of “case was properly dismissed, as
most of [the Plaintiff’s] allegations imply that his parole
revocation was invalid and he did not show that the revocation
had been reversed or invalidated by an appropriate tribunal.”
This Court has reached the same conclusion in cases where a
Plaintiff challenges “the substantive result ... of [parole]
revocation proceedings.”

Tillman v. Mausser, 2011 WL 1659387, *6

(S.D. Ohio May 2, 2011), adopted and affirmed 2011 WL 2181622
(S.D. Ohio June 2, 2011).

Consequently, Counts One and Two of

the complaint fail to state a claim upon which relief can be
granted, because any relief is barred by Heck v. Humphrey unless
and until Mr. Hurst obtains a decision from another court, or in
a federal habeas corpus action (which, by statute, see 28 U.S.C.
§2254(b), (c), cannot be pursued until state court remedies are
exhausted) that the revocation of his parole was illegal.

-4-

IV.
Count Three stands on a different footing.

There, Mr. Hurst

challenges the APA’s ability to impose certain conditions on him
as a part of his post-control release.

He asks this Court to

declare that those conditions are invalid.
There is substantial support for the proposition that Mr.
Hurst is seeking the wrong remedy here.

He is “in custody” -

that is, his liberty is restrained - by the parole conditions
about which he complains.

See Jones v. Cunningham, 371 U.S. 236,

243 (1963)(“While petitioner's parole releases him from immediate
physical imprisonment, it imposes conditions which significantly
confine and restrain his freedom; this is enough to keep him in
the ‘custody’ of the members of the Virginia Parole Board within
the meaning of the habeas corpus statute”).

Some courts have

held that a person in state custody who seeks release from that
custody, or any condition of it, may proceed in federal court
only by way of a petition for a writ of habeas corpus.

See,

e.g., Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir.
1977)(a person challenging parole or probation conditions “must
proceed by means of a petition for habeas corpus, a cause of
action which initially requires the petitioner to exhaust ...
available state court remedies”).

Since Mr. Hurst has not

alleged the exhaustion of state remedies, under this line of
argument, he cannot properly seek habeas corpus relief here.
However, the fact that Mr. Hurst may, under proper
circumstances, seek habeas corpus relief does not completely
answer the question of whether that is the only form of relief
available to him.

In Wilkinson v. Dotson, 544 U.S. 74, (2005),

the Supreme Court noted that although a prisoner in state custody
could not seek declaratory relief under 42 U.S.C. §1983 (the
general civil rights statute) to challenge the fact or duration
of his confinement or custody in an effort to shorten the term of
-5-

confinement or custody or obtain immediate release, a prisoner
could challenge the constitutionality of parole proceedings in a
§1983 action as long as the result was not to cause the prisoner
to be released, but simply to require that his request for parole
be considered using proper procedures rather than
unconstitutional ones.

In other words, where granting relief on

the Plaintiff’s “claim would [not] necessarily spell speedier
release” the claim does not “lie[] at ‘the core of habeas
corpus.’” Dotson, 544 U.S. at 82, quoting Preiser v. Rodriguez,
411 U.S. 475, 489 (1973).

Thus, while such a challenge could

also be raised in a habeas corpus proceeding, it did not have to
be, and could be litigated in the context of a claim for
declaratory relief brought under §1983.
A challenge to a condition of parole which, if successful,
would not shorten the parole term or result in the parolee’s
immediate release from parole, could be viewed as something other
than an attack on the fact or duration of a person’s confinement
(or deprivation of liberty resulting from parole conditions) and
for that reason might be properly brought under §1983.
that is what one Court of Appeals has held.

At least,

See Thornton v.

Brown, 757 F.3d 834 (9th Cir. 2013). There, the issue was whether
a parolee could challenge his parole conditions under 42 U.S.C.
§1983 or whether he was required to seek habeas corpus relief.
Relying on Dotson, the Thornton court held that because the
parolee was not seeking total release from parole, and because
judgment in his favor would not shorten his parole term, he was
permitted to challenge certain conditions of parole in a §1983
action.

Thornton recognized that its holding was directly

contrary to the Seventh Circuit Court of Appeals’ decision in
Drollinger, supra, and that no other Court of Appeals had spoken
directly to the issue.

The majority decision in Thornton

provoked a strong dissent which argued that “if Thornton were
-6-

successful in his challenge to the parole conditions imposed by
the [California parole authorities], it would necessarily imply
the invalidity of a portion of his sentence,” thus running afoul
of the Supreme Court’s decision in Heck.

Thornton, 757 F.3d at

847 (Ikuta, J., dissenting).
In the view of this Court, Drollinger is the better-reasoned
and more persuasive decision.

An excellent analysis of this

issue can be found in D'Amario v. Weiner, 2014 WL 1340022, *6
(D.N.J. Apr. 3, 2014), where the court, rejecting Thornton, said,
in words with which this Court agrees, that “it is difficult to
understand how a constitutional challenge to one's parole,
probation, or supervised release conditions in a civil rights
action would not ‘necessarily imply the invalidity’ of a portion
of the plaintiff's sentence....”

A judgment in Mr. Hurst’s favor

in this case would release him from a portion of his sentence,
namely the restrictions on his liberty which flow from the
conditions he challenges.

As the D’Amario court also observed,

there is no logical stopping point to the principle adopted in
Thornton.

Under that principle, a parolee could challenge every

parole condition under §1983 until there were none left, which
would be the equivalent of challenging the fact or duration of
parole.

There is no reason to allow a parolee to circumvent the

state courts by bringing such a challenge without going through
the process of exhausting state remedies, which is the primary
difference between a challenge under the habeas corpus statute
and a claim brought under §1983.

The exhaustion requirement

gives the state courts the first opportunity to address and
correct any constitutional errors in the sentence being served
before a federal court intrudes into the state criminal process.
Again, because Mr. Hurst does not allege that he has pursued any
state remedies challenging the conditions of his parole, he
cannot seek habeas relief here, so even were the Court to
-7-

construe his third claim as one for such relief, it is subject to
dismissal for failure to exhaust available state remedies.

See

Castille v. Peoples, 489 U.S. 346, 349 (1989), holding that a
“habeas petition should have been dismissed if state remedies had
not been exhausted as to any of the federal claims.”

The Court

stresses that by dismissing Count Three for failure to exhaust,
and by dismissing Counts One and Two for failure to state a
claim, the Court is making no ruling on the merits of Mr. Hurst’s
federal constitutional claims, but deciding only that, for
procedural reasons, these claims cannot currently be pursued in
the federal courts.
V.
For all of these reasons, Plaintiff’s motion for leave to
proceed in forma pauperis (#1) is granted.

It is further

recommended that this case be dismissed under 28 U.S.C.
§1915(e)(2) for failure to state a claim upon which relief may be
granted.
VI.
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
-8-

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).

/s/ Terence P. Kemp
United States Magistrate Judge

-9-