Oden v. Ohio Adult Parole Authority et al

Filing 2

ORDER AND REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis filed by Willie Oden. Plaintiff's Motion for leave to proceed in forma pauperis is GRANTED. It is RECOMMENDED that the Court DISMISS this action for fai lure to state claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). Objections to R&R due by 10/28/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/11/2016. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION WILLIE ODEN, Plaintiff, Civil Action 2:16-cv-955 Judge George C. Smith Magistrate Judge Elizabeth P. Deavers v. OHIO ADULT PAROLE AUTHORITY, et al., Defendants. ORDER and REPORT AND RECOMMENDATION Plaintiff, Willie Oden, a state inmate who is proceeding without the assistance of counsel, brings this action under 42 U.S.C. §§ 1981, 1983, and the Parole Act asserting claims arising out of his denial of parole. Plaintiff seeks declaratory relief as well as damages in the amount of $50,00.00 This matter is before the Court for consideration of Plaintiff’s Motions for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (the “Complaint” or “Compl.;” ECF No. 1.) Plaintiff’s Motion for leave to proceed in forma pauperis is GRANTED. (ECF No. 1.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he currently possesses the sum of $0.43 in his prison account, which is insufficient to pay the full filing fee. His application indicates that his average monthly deposits for the six-month period prior to filing his application to proceed in forma pauperis were $21.50. Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account (Inmate Id # A151069) at Chillicothe Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint. After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be made payable to: Clerk, United States District Court. The checks should be sent to: Prisoner Accounts Receivable 260 U.S. Courthouse 85 Marconi Boulevard Columbus, Ohio 43215 The prisoner’s name and this case number must be included on each check. It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s financial office in Columbus. This matter is also before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also McGore, 114 F.3d at 608. Having performed 2 the initial screen, for the reasons set forth below, it is RECOMMENDED that the Court DISMISS this action for failure to state claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). I. Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the statute, which provides in pertinent part: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-* * * (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or .... 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted. See 1 Formerly 28 U.S.C. § 1915(d). 3 Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering whether this facial plausibility standard is met, a Court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations omitted). The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards 4 than formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 083978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). II. Plaintiff alleges that he appeared before the Ohio Adult Parole Board in July 2016 and that he was denied parole on the basis of the “same grounds as previously used to extend his sentence.” (Compl. ¶¶ 1-2.) Plaintiff asserts the rationale for denying his parole constituted an impermissible “double counting” in violation of Due Process under the Fourteenth Amendment, the Equal Protection Clause and the Parole Act. (Id. ¶¶ 2-3.) The Undersigned finds that Plaintiff has failed to allege a colorable due process claim. “A plaintiff bringing a § 1983 action for procedural due process must show that the state deprived him or her of a constitutionally protected interest in ‘life, liberty, or property’ without due process of law.” Swihart v. Wilkinson, 209 F.App’x 456, 458 (6th Cir. 2006) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). Thus, because Plaintiff seeks to establish a due process violation relating to Defendants’ consideration of his parole eligibility, he “must first show that he . . . has a protected property or liberty interest in parole.” Settle v. Tenn. Dep’t of Corrs., 487 F. App’x 290, 290–91 (6th Cir. 2012) (citations omitted). “A liberty interest in parole eligibility derives only from state law.” Id. at 291 (citations omitted); see also Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005) (“[T]here is no fundamental right to parole under the federal constitution.”). “Ohio law does not create a protected liberty interest in release from parole.” Jergens v. State of Ohio Dep’t of Rehab. & Corrs. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012). Because Ohio law does not create a liberty interest in parole, Plaintiff 5 is unable to state a viable § 1983 due process claim challenging Defendants’ eligibility determination. The Undersigned therefore RECOMMENDS dismissal of this claim. “The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution ‘protects against arbitrary classifications, and requires that similarly situated persons be treated equally.’” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005) (quoting Richland Bookmart, Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002)). “Without question, prisoners are not considered a suspect class for purposes of equal protection litigation.” Jackson, 411 F.3d at 619 (citing Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998)). “Moreover, there is no fundamental right to parole under the federal constitution.” Id. (citing Bd. of Pardons v. Allen, 482 U.S. 369 (1987)). Here, Plaintiff’s Complaint fails to set forth any facts suggesting that the Defendants, the Ohio Adult Parole Authority, the Parole Board Chairperson and three John Doe Parole Hearing Officers intentionally treated him differently than other similarly-situated inmates. Accordingly, the Undersigned RECOMMENDS dismissal of Plaintiff’s equal protection claim. Finally, Plaintiff’s allegations that the “double counting” violated Ohio’s Parole Act is a state law claim. “The basic statutory grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is invoked when a plaintiff pleads a claim “arising under” the federal laws or the Constitution. Id. (citation omitted). For a federal court to have diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that each plaintiff must be a citizen of a different state than each defendant, and the amount in controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). 6 Here, Plaintiff’s constitutional claims are not cognizable and his claim for a violation of a state statute does not present either a federal question nor does diversity jurisdiction exist. The Undersigned accordingly RECOMMENDS that this state-law claim be dismissed. III. For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this action for failure to state claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). The Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215. PROCEDURE ON OBJECTIONS If Plaintiff seeks review by the District Judge of this Report and Recommendation, he may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part in question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b). Plaintiff is specifically advised that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to magistrate judge’s report and recommendation). Even when timely objections are filed, 7 appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). Date: October 11, 2016 /s/ Elizabeth A. Preston Deavers ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE 8

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