Jefferson v. Mohr et al

Filing 15

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that Mr. Jefferson's 14 MOTION for Leave to File a supplemental reply & Defendants' 11 MOTION TO DISMISS be granted and this case be dismissed. Objections to R&R due within fourteen (14) days from the date of this Report. Signed by Magistrate Judge Terence P. Kemp on 1/17/2017. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sell Jefferson,

:

Plaintiff,

:
:

Gary C. Mohr, et al.,
Defendants.

JUDGE EDMUND A. SARGUS, JR.

:

v.

Case No. 2:16-cv-0369

Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff, Sell Jefferson, filed this pro se lawsuit against
Gary C. Mohr, the Director of the Ohio Department of
Rehabilitation and Correction (“ODRC”), Andre Imbrogno, Chairman
of the Ohio Adult Parole Authority (“OAPA”), Jason Bunting,
Warden of Marion Correctional Institution (“MCI”), and Cynthia
Mauser, Chief of the OAPA.

This matter is now before the Court

on the defendants’ motion to dismiss (Doc. 11) and Mr.
Jefferson’s motion for a leave to file a supplemental reply (Doc.
14).

The motions are now ripe for decision. For the following

reasons, it will be recommended that both motions be granted.
I.

Background

The Court will presume the facts pleaded in Mr. Jefferson’s
complaint to be true for purposes of deciding whether he has
stated a claim for relief.
follows.

The facts can be summarized as

In separate trials in 1975, Mr. Jefferson was convicted

of aggravated robbery and then aggravated murder.

At the first

trial he was sentenced to 7-25 years’ incarceration.

Following

the subsequent murder conviction he was sentenced to life
imprisonment, and was required to serve 15 years before being
eligible for parole.

Doc. 3, Ex. C. According to Mr. Jefferson,

the ODRC and the OAPA failed to properly execute the two
sentences together, which caused him to be granted parole on

January 20, 1981, and he was then granted a final release on
February 11, 1982. Doc. 3 at 3; Doc. 14 at 2.

He was later

convicted of another crime and sentenced on November 19, 1985 to
7-15 years, to be served concurrent with his life sentence.

At

this time Mr. Jefferson was assigned a new inmate number, 187-975
(his previous inmate number had been 142-653). Complaint, Ex. E.
Mr. Jefferson claims that he should have been granted a parole
eligibility hearing in 1989, but was not granted a hearing until
2000, which was approximately 26 years after the 1975 life
sentence was imposed.

Id. Ex. F-G.

He also claims that he was

not given credit for his time served between 1975-1981 towards
the 1985 sentence.

Mr. Jefferson believes that the ODRC and/or

the OAPA erroneously ordered him to serve 15 years to life
beginning in 1985 under the new inmate number, rather than
crediting him with time served for the 1975 conviction.
at 2-3.

Doc. 14

He challenges the retroactive application of 1998 parole

release regulations, which he claims have unfairly delayed his
eligibility for a parole hearing.
Mr. Jefferson does not allege the personal involvement of
any of the named defendants, and is suing them in their official
and individual capacities.

He seeks injunctive relief, asking

the Court to direct the defendants to hold an immediate parole
eligibility hearing and to get credit for his time served for the
1975-1981 sentence toward his 1985 sentence.

He also seeks to

order the defendants to reassign him the inmate number 142-653.
II.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded
factual allegations must be taken as true and be construed most
favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
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2009). A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The
merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction
with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." 5A Wright &
Miller, Federal Practice and Procedure § 1356 (1990). The moving
party is entitled to relief only when the complaint fails to meet
this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). "In practice, a complaint must contain either direct
or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory." Id.
(emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. As Mr. Jefferson is a pro se litigant, his filings with the
court shall be liberally construed and held to less stringent
standards than documents filed by qualified lawyers. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). It is with these standards in
mind that the motion to dismiss will be decided.
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III.

Discussion

Mr. Jefferson alleges that he is entitled to an immediate
parole hearing, additional credit for time served towards his
sentence, and to be re-assigned the inmate number from his 1975
conviction.

The Court construes this as a claim under 42 U.S.C.

§1983 for violation of his Fourteenth Amendment right to due
process.

To establish a prima facie claim under §1983, a

plaintiff must satisfy two elements: (1) that defendants acted
under color of state law, and (2) that defendants deprived
plaintiff of a federal statutory or constitutional right.

See,

e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); Searcy v.
City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); United of Omaha
Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992) (per
curiam).

Conclusory allegations are insufficient to state a

claim under §1983.

Rhodes v. Chapman, 452 U.S. 337 (1981).

It will be assumed for the purposes of this analysis that
the defendants were/are acting under color of state law.

The

defendants raise five arguments in support of their motion to
dismiss: (1) the official capacity claims are barred by Eleventh
Amendment immunity; (2) the claims are not cognizable under
§1983; (3) the claims are time barred; (4) there was no alleged
personal involvement by any of the defendants in relation to the
claim; and (5) the defendants are entitled to qualified immunity.
A. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution
bars suits against either a state or agencies of a state by
citizens of that state.

Edelman v. Jordan, 415 U.S. 651 (1974).

Under certain circumstances, a suit against an individual state
official may nonetheless be deemed to be a suit against the state
and therefore barred by the Eleventh Amendment.

The primary test

for determining whether the state is the real party in interest
in a suit is whether the source of any funds from which a damage
award would be paid would be the state treasury.
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Edelman, supra.

Additionally, if an individual is alleged to have only vicarious
liability as a result of his official position, any damage award
made (if one were permissible) would necessarily be against the
office rather than the officeholder and therefore be an award
against the state.

See Ford Motor Co. v. Department of the

Treasury, 323 U.S. 459 (1945); see also Hall v. Medical College
of Ohio, 742 F.2d 299 (6th Cir. 1984), cert. denied 469 U.S. 1113
(1985).

When a suit is barred by the Eleventh Amendment, the

Court lacks jurisdiction over it and it must be dismissed without
prejudice.

Cf. Gwinn Area Comm. Schools v. State of Michigan,

741 F.2d 840, 846-47 (6th Cir. 1984).
The defendants argue that the claim against them in their
official capacities is really a claim against the state of Ohio,
and is thus barred. However, while this applies to monetary
damages, Mr. Jefferson only seeks injunctive relief. The
Eleventh Amendment does not preclude suits seeking prospective
injunctive or declaratory relief against state officials. Cox v.
Kentucky Dept. Of Transp., 53 F.3d 146, 152 n. 2 (6th Cir. 1995),
citing Thiokol Corp. v. Dept. of Treasury, 987 F.2d 376 (6th Cir.
1993). For this reason, the Court rejects the defendants’
Eleventh Amendment argument.
B. Statute of Limitations
Because 42 U.S.C. §1983 does not proscribe its own statute
of limitations, federal courts apply the forum state’s statute of
limitations period, which for Ohio is the two year statute of
limitations found in O.R.C. §2305.10. Browning v. Pendleton, 869
F.2d 989.992 (6th Cir. 1989). The statute of limitations begins
to run at the time when a plaintiff knew or should have known of
the injury which forms the basis of his claims. See Ruff v.
Runyon, 258 F.3d 498, 501 (6th Cir. 2001). Mr. Jefferson does
not challenge the validity of his convictions, but what he deems
to be an untimely parole eligibility hearing. He argues that he
should have had a hearing in 1989. Accepting this as true, Mr.
Jefferson should have filed his lawsuit sometime in 1991. Mr.
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Jefferson was ultimately given a parole eligibility hearing in
2000, 26 years after his initial life sentence. Even if it could
be successfully argued that Mr. Jefferson’s cause of action
accrued in 2000, he would have been required to file his lawsuit
by 2002. He also raises the fact that his inmate number should
be changed to the inmate number assigned to him following his
1975 conviction, implying that his assigned inmate number has or
had an effect on the length of his sentence and credit for time
served toward his sentence. Mr. Jefferson was assigned the new
inmate number in 1985, which would have meant that any lawsuit in
relation to the new inmate number would be required to be filed
in 1987. In relation to receiving credit for time served, this
also would have been manifest to Mr. Jefferson many years prior
to the filing of this lawsuit. Thus, because the Court finds
that Mr. Jefferson’s claims are clearly time-barred, it need not
address the defendants’ remaining arguments in support of their
motion to dismiss.
IV. Recommendation
For the foregoing reasons, Court recommends that Mr.
Jefferson’s motion for leave to file a supplemental reply (Doc.
14) and defendants’ motion to dismiss (Doc. 11) be granted and
this case be dismissed.
V. Procedure on Objections
If any party objects to this Report and Recommendation,
-6that party may, within fourteen (14) 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).
/s/ Terence P. Kemp
United States Magistrate Judge

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