Oden v. Ohio Adult Parole Authority et al
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.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Civil Action 2:16-cv-955
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers
OHIO ADULT PAROLE AUTHORITY, et al.,
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
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).
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
Formerly 28 U.S.C. § 1915(d).
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
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,
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
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).
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.
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,
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
Date: October 11, 2016
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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