Finley v. Mohr et al

Filing 25

REPORT AND RECOMMENDATION that 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted and this case be dismissed. Objections to R&R due by 4/7/2017. Signed by Magistrate Judge Terence P. Kemp on 3/24/2017. (agm)(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
Billy Finley,

:

Plaintiff,

:

v.

:

Case No. 2:16-cv-870

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Gary Mohr, Director, et al.,
Defendants.

:

REPORT AND RECOMMENDATION
Plaintiff Billy Finley filed this lawsuit pursuant to 42
U.S.C. §1983 alleging that his constitutional rights were
violated by various officials employed by the Ohio Department of
Rehabilitation and Correction (“ODRC”), the Ohio Parole Board
(“OPB”), and the Grafton Correctional Institution (“GCI”).

The

defendants have filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. (Doc. 16).
briefed. (Doc. 21, 24).

The motion has been fully

For the following reasons, it will be

recommended that the motion be granted and this case be
dismissed.
I.

Background

This case involves Ohio’s 1996 changes to its criminal
sentencing scheme.

Effective July 1, 1996, Ohio did away with

indeterminate sentencing.
sentences.

Instead, Ohio judges now impose fixed

That means that criminal defendants sentenced after

the new law took effect are not eligible for parole.

Those

sentenced under the prior law, however, may still be paroled
before the expiration of their maximum sentence.

Mr. Finley is

one of those defendants, having been sentenced in 1993 to a term
of seven to 25 years of incarceration.
Mr. Finley’s claims arise out of his “almost-parole” in

2015.

He was actually given a release date of December 28, 2015,

and was simply waiting to be “dressed out” for release on that
date when a paperwork error delayed his release.

Two days later,

he was involved in an altercation with another inmate.

Although

Mr. Finley denies being the aggressor, he was institutionally
convicted of fighting.

When the Parole Board obtained that

information, it rescinded his release date and continued him to
the expiration of his sentence.

As a result, he is not scheduled

for release until some time in late 2018.
In his complaint, which recites these facts, Mr. Finley does
not ask for immediate release from prison, or for any damages.
Rather, he has asked for declaratory and injunctive relief
against the application of what he describes as Ohio’s
discriminatory classification of inmates into two groups: those
who, because they must seek parole, can have the time they serve
affected by institutional rule violations, and those who, because
they are serving flat time sentences, may flout institutional
rules with relative impunity.

He supports his claim by noting

that the other inmate involved in the December 30, 2015 incident
was a “flat-time” inmate who had little or nothing to lose by
picking a fight with Mr. Finley.

The best description of Mr.

Finley’s claim comes from the complaint itself, at ¶50; he is
challenging, on equal protection grounds,
OAC provisions that permit double punishment for one
class of prisoners and do not permit double punishment
for a second class of prisoners, even for the exact
same rule violation, even if committed at the same time
in the same incident, and where both of the classes of
prisoners were expressly created to be distinct
classes....
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
-2-

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.
2009). A complaint may 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).
III. Discussion
Defendants advance a number of different arguments in their
motion to dismiss.

Apart from their discussion of the “rational

basis” test applicable to equal protection claims, none of them
are really responsive to Mr. Finley’s claim.

He is not, as

Defendants argue in their motion, asserting a constitutional
right to parole, nor do his claims for declaratory and injunctive
relief implicate the doctrine of respondeat superior.

That is a

doctrine which, in cases which do not involve claims under 42
U.S.C. §1983, can sometimes be used to recover money damages from
someone whose employee or agent commits a tort.

The doctrine

cannot be used to hold a defendant liable for money damages in a
case brought under §1983 because, in order to be held liable
under that statute, a defendant must have been personally
involved in the alleged constitutional deprivation.

See

generally Monell v. Department of Social Services, 436 U.S. 658
(1978).

However, when declaratory or injunctive relief is sought

against state officials acting in their official capacity, all
that is necessary is that the “officers have ‘some connection
with the enforcement of the act’ in question or be ‘specially
charged with the duty to enforce the statute’ and be threatening
to exercise that duty.”

See Okpalobi v. Foster, 244 F.3d 405,

414-15 (5th Cir. 2001), quoting Ex Parte Young, 209 U.S. 123,
-3-

157, 158 (1908); see also Mann v. Mohr, 2016 WL 2616998, *5 (N.D.
Ohio Feb. 24, 2016), adopted and affirmed 2016 WL 2588173 (N.D.
Ohio May 4, 2016)(in cases involving “only the possibility of
injunctive an/or (sic) declaratory relief, it is not entirely
accurate to speak of respondeat superior liability at all...”).
Defendants make a single equal protection argument.

They

assert that, under rational basis scrutiny (which both they and
Mr. Finley agree applies here), it is Mr. Finley’s burden to
demonstrate that there is no rational basis for the challenged
statute or regulation, and that he can do so only by showing that
there could not be a rational reason for treating the two classes
of persons at issue differently, or by showing that the
classification was motivated by animus or ill will.

See

generally Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007).
This, they contend, Mr. Finley has failed to do.

They have not

offered any particular justification for the classification in
question, not even “rational speculation unsupported by evidence
or empirical data.”

See Federal Communications Commission v.

Beach Communications, Inc., 508 U.S. 307, 315 (1993).
Mr. Finley faces a bit of an uphill challenge in this case
since, in Michael v. Ghee, the Court of Appeals upheld the change
in Ohio’s sentencing scheme against an equal protection
challenge.

True, that challenge had a different focus.

The

plaintiffs in that case argued that not applying the new
sentencing scheme retroactively violated equal protection, but
the Court of Appeals concluded that such unequal application was
rationally related to Ohio’s desire to implement sentencing
reform one step at a time.

Were this Court to conclude that Mr.

Finley has stated a valid equal protection claim, it would be
contradicting the Michael decision by saying that Ohio had no
rational basis for creating the same two classes of prisoners one of which has to strive for parole through good institutional
-4-

behavior, and one of which does not - which Mr. Finley identifies
in his complaint.
Mr. Finley has put his finger on what may be a real problem:
Ohio inmates who commit institutional rules violations may, in
fact, not be subject to the same punishment for identical acts.
One inmate may face delay or denial of parole, while the other
may be facing only institutional charges or, if the misconduct is
serious enough, new criminal charges.

However, that difference

is a necessary byproduct of having inmates who are under the old
sentencing scheme (and therefore parole-eligible) and inmates
under the new scheme housed in the same correctional
institutions.

This problem could perhaps be cured by keeping the

inmates separate, but Ohio surely has rational reasons, relating
to cost and efficiency, in maintaining its existing system of
correctional institutions and not creating separate institutions
or housing units for inmates depending upon which type of
sentence they are serving.

Alternatively, Ohio could adopt

regulations which prevent the Parole Board from taking
institutional conduct into account when a rules violation results
from the type of situation which occurred here - but, again, Ohio
has a rational basis for wanting the Parole Board to be able to
consider all relevant conduct in deciding whether to grant
parole, and institutional rules violations are rationally related
to that goal.
The Equal Protection Clause does not demand precise equality
of treatment for people who engage in the same type of conduct.
For example, two defendants who commit the exact same crime may
be punished differently based on their criminal history, or based
on whether one is a citizen and one is not.

The latter defendant

may face deportation, but that consequence is rationally related
to the citizenship status of the defendant and may therefore
properly be taken into account in determining the consequences
-5-

which flow from a criminal conviction.

Both the States and the

federal government are given substantial leeway in deciding how
to punish people who commit similar crimes.

See, e.g., United

States v. Walker, 473 F.3d 71 (3d Cir. 2007)(holding that it is
rational to impose a longer sentence on someone who commits a
second firearms offense punishable under 18 U.S.C. §924(c) than
someone who is a first offender).
Rational basis review is not toothless, but it is
deferential.

As the Supreme Court has said, “equal protection is

not a license for courts to judge the wisdom, fairness, or logic
of legislative choices.”

Federal Communications Commission v.

Beach Communications, Inc., 508 U.S. at 313.

Situations like the

one encountered by Mr. Finley are sometimes the consequence of a
State’s choice to change other aspects of the law.

For a time,

two people engaged in the exact same act may be subject to
different treatment.

The Court must consider, however, whether

there was a rational basis for the State’s decision to create the
classifications which led to that situation.
Ghee has already decided that basic question.

Here, Michael v.
This Court has

also concluded that there are reasons why inmates like Mr. Finley
and the one who assaulted him can still be housed together.
Under these circumstances, some inequalities in treatment are
inevitable, but they are not irrational.

That is enough to

defeat Mr. Finley’s equal protection claim, and to grant the
Defendants’ motion to dismiss.
IV. Recommendation
For the foregoing reasons, the Court recommends that the
defendants’ motion to dismiss (Doc. 16) be granted and this case
be dismissed.
V. Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
-6-

reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

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 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, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

-7-