Al'Shahid v. Mohr et al

Filing 24

ORDER and REPORT AND RECOMMENDATION: ORDER: Plaintiff's Motion to Strike 32 is DENIED. REPORT AND RECOMMENDATION: It is RECOMMENDED that Defendants' Motion to Dismiss 16 be GRANTED IN PART and DENIED IN PART. Speci fically, it is RECOMMENDED that Defendants' Motion to Dismiss be GRANTED with respect to any compensatory claims Plaintiff seeks against Defendants in their official capacities. It is RECOMMENDED that Defendants' Motion to Dismiss be DENIE D with respect to habeas corpus. Objections to R&R due by 7/5/2019. Signed by Magistrate Judge Elizabeth Preston Deavers on June 21, 2019. (jlk)(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

CURTIS AL’SHAHID,
Plaintiff,
Civil Action 2:18-cv-00033
Judge Michael H. Watson
Chief Magistrate Judge Elizabeth P. Deavers

v.

STUART HUDSON, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Curtis Al’Shahid, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against Defendants Stuart Hudson, the
Director of the Ohio Department of Rehabilitation and Corrections (“ODRC”), and Trayce
Thalheimer, the Chairperson of the Ohio Board Authority. This matter is before the Court upon
consideration of Defendants’ Motion to Dismiss (ECF No. 16), Plaintiff’s Response in
Opposition (ECF No. 21), Defendants’ Reply in Support (ECF No. 22), and Plaintiff’s Motion to
Strike Defendants’ Reply (ECF No. 23). For the following reasons, it is RECOMMENDED
that Defendants’ Motion to Dismiss (ECF No. 16) be GRANTED IN PART and DENIED IN
PART. Furthermore, Plaintiff’s Motion to Strike Defendants’ Reply (ECF No. 23) is DENIED.
PROCEDURAL HISTORY
At the outset of this action, Plaintiff requested leave to proceed in forma pauperis. (ECF
No. 1.) The Court granted Plaintiff’s Motion for Leave to Proceed in forma pauperis on April 4,
2018. (ECF No. 5.) On the same date, the Undersigned performed an initial screen and

recommended that the Court dismiss Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2).
Plaintiff filed an Amended Complaint on April 5, 2018 (ECF No. 7) and an Objection to the
Report and Recommendation on April 16, 2018 (ECF No. 8). On November 20, 2018, upon
review of the Amended Complaint and Plaintiff’s Objection, the Undersigned withdrew the
Report and Recommendation and permitted Plaintiff to proceed with his claims against
Defendants regarding alleged procedural deficiencies in his parole proceedings. (ECF No. 10.)
On December 26, 2018, Defendants filed a Motion to Dismiss. (ECF No. 16.) On
January 10, 2019, Plaintiff filed a Response in Opposition to Defendants’ Motion. (ECF No.
21.) Defendants filed a Reply in support of their Motion on January 17, 2019. (ECF No. 22.)
On January 24, 2019, Plaintiff filed a Motion to Strike Defendants’ Reply. (ECF No. 23.) As an
initial matter, the Undersigned takes up the Motion to Strike.
MOTION TO STRIKE
Federal Rule of Civil Procedure 12(f) permits a court to strike from a pleading “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). Notably, “[t]he striking of a portion of a pleading is a drastic remedy which is
seldom granted absent a showing of real prejudice to the moving party.” Hughes v. Lavender,
No. 2:10-CV-674, 2011 WL 2945843, at *2 (S.D. Ohio July 20, 2011) (citing Armstrong v.
Snyder, 103 F.R.D. 96, 100 (E.D. Wis. 1984)).
Plaintiff moves to strike Defendants’ Reply on the grounds that “[t]he allegations are
unrelated to Plaintiff’s ‘Legal Claims’ that [were] raised in his Amended Complaint.” (ECF No.
23, at pg. 1.) Specifically, Plaintiff asserts that “[t]he ‘Due Process’ claim raised by Defendants
by and through counsel for the first time is not only inaccurate [and] misleading but contrary to
[Plaintiff’s] due process claim raised [in an earlier filing].” (Id.) Plaintiff fails in his Motion to

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demonstrate why the drastic remedy of striking Defendants’ Reply is warranted. Plaintiff first
argues that “the due process claim has already been raised by the Plaintiff, presented, reviewed
and ruled on by this court.” (Id. at pg. 3.)
Plaintiff cites to his Objection to the Report and Recommendation recommending that the
Court dismiss Plaintiff’s claims upon an initial screen pursuant to 28 U.S.C. § 1915(e)(2) (ECF
No. 8), and the Court’s Order withdrawing the Report and Recommendation and permitting
Plaintiff’s claims to proceed (ECF No. 10). Although the Court withdrew the Report and
Recommendation and permitted Plaintiff to proceed, it did not analyze or otherwise rule on the
merits of Plaintiff’s due process claims, as Plaintiff appears to assert. Rather, the Court’s Order
withdrawing the Report and Recommendation permitted Plaintiff to proceed with his claims
against Defendants regarding alleged procedural deficiencies in his parole hearings. (Id.) The
Court’s Order does not prohibit Defendants from making arguments regarding Plaintiff’s due
process claims. Nor does it prohibit Defendants from making Eleventh Amendment arguments,
as Plaintiff also appears to suggest. Accordingly, Plaintiff’s Motion to Strike (ECF No. 23) is
DENIED.
MOTION TO DISMISS STANDARD OF REVIEW
Defendants bring their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted. To
survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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). Thus, Rule 8(a) “imposes legal and

3

factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank,
F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original).
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)). 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), “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
In considering whether a complaint fails to state a claim upon which relief can be
granted, the Court must “construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio
Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir.
2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet
that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a
cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.
Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts
sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts

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intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft
Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.
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. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
MOTION TO DISMISS ANALYSIS
A. Habeas Corpus Petition and Failure to State a Claim Under § 1983
In Defendants’ Motion to Dismiss, they argue that because Plaintiff’s initial Complaint
requested “immediate release” from prison, it should have been filed as a habeas corpus petition
rather than a 42 U.S.C. § 1983 action. (ECF No. 16, at pg. 7.) As Plaintiff points out, however,
in his Amended Complaint he omits the request for “immediate release.” (ECF No. 21, at pg. 3.)
“Generally, amended pleadings supersede original pleadings.” Hayward v. Cleveland Clinic
Found., 759 F.3d 601, 617 (6th Cir. 2014). Defendants accept this clarification in their Reply
but assert that “this still does not solve the issue of Plaintiff’s remaining requests for relief.”
(ECF No. 22, at pg. 2.)
Specifically, Defendants argue that Plaintiff’s request for $80,000 in compensatory
damages, which Plaintiff alleges is “based upon ‘evil intent’ prolonging and deliberately denying
[Plaintiff] a meaningful parole board hearing as mandated by House Bill 86, [§] 10” is not an
appropriate request for relief in a § 1983 action because “House Bill 86 does not confer any
protected liberty interests upon Plaintiff that he could vindicate with a § 1983 action.” (Id.)

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However, in a similar case from 2015, this Court held that incorrect information reported to the
Ohio General Assembly regarding House Bill 86, when viewed in the light most favorable to a
plaintiff, could deprive a plaintiff of his or her Fourteenth Amendment . . . Due Process right to a
correct parole record[.]” Kinney v. Mohr, No. 2:13-cv-1229, 2015 WL 1197812, at *5 (S.D.
Ohio March 16, 2015). The similarity of Kinney to the instant action bears a recounting of
Kinney’s background and the Court’s holding.
Plaintiff Jack W. Kinney . . . alleges Defendants violated his Fourteenth
Amendment rights when they denied him a meaningful statutorily-based parole
eligibility hearing. He has brought a claim under 42 U.S.C. § 1983, which
guarantees that “every person who, under color of any statute . . . of any state
subjects . . . , or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983 (2006). This matter is
before the Court on [Defendants’] Motion to Dismiss.
The complaint alleges that Defendants willfully denied Plaintiff a meaningful,
statutorily-based parole eligibility hearing for inmates aged sixty-five and older, as
required by House Bill 86 § 10. Plaintiff alleges that Defendants knowingly sent
false and biased information to the legislature in a report explaining why Plaintiff
was not suitable for parole review under House Bill 86 § 10. This report is
hereinafter referred to as “HB 86 Report.”
In 2011, the Ohio legislature passed Section 10 of House Bill 86, a law affecting
any parole-eligible inmates 65 years and older. See 2011 H 86, § 10, eff. 9-30-11.
Section 10 of House Bill 86 states that “the Department of Rehabilitation and
Correction [“DRC”] shall thoroughly review the cases of all parole-eligible inmates
who are sixty-five years of age or older and who have had a statutory parole
consideration hearing.” 2011 H 86, § 10, eff. 9-30-11 (emphasis added). Upon
completion of this review, the DRC is required to send a report to the Ohio General
Assembly summarizing the findings of its review and explaining why each of those
inmates has not been paroled or otherwise released from custody. See [i]d. In
addition, the Chair of the Parole Board is required to present to the Board the cases
of these inmates. Id. Upon presentation of the case of an inmate, “the Board, by
majority vote, may choose to rehear the inmate’s case for possible release on
parole.” Id. (emphasis added).
...
The complaint alleges that the following information in the HB 86 Report was
incorrect, that Defendants knew the information was false, and, yet, they refused to
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remove or correct the information that was sent to state legislators. Defendants do
not contest Plaintiff’s assertion that on April 14, 2010, The Ohio Adult Parole
Authority (“OAPA”) sent false and biased information to the Ohio Attorney
General in Plaintiff’s HB 86 Report. The Report falsely stated that Plaintiff was
denied release in his 2007 parole board hearing because Plaintiff raped, sodomized
and shot a female victim. Also, the Report falsely stated the Plaintiff premeditated
killing three victims. In addition, the Report falsely stated the Plaintiff shot all
victims in the head. The autopsy report and transcript of interrogation support
Plaintiff’s contention that the three victims were not shot in the head executionstyle as suggested by the HB 86 Report.
Defendants argue that Plaintiff’s claim should be dismissed for failure to state a
claim. Additionally, Defendants state that Plaintiff has no due process right to a
parole hearing and therefore no right to an accurate parole record. In their objection
[to the Report & Recommendation which recommended denial of their Motion to
Dismiss], Defendants recognize that Jergens v. Ohio Dep’t of Rehab. & Corr. Adult
Parole Auth. found that an inmate could have a due process claim where parole is
denied based on false information in the parole file, but Defendants argue that this
is not such a case. See 492 F. App’x 567, 571 n.5 (6th Cir. 2012). Defendants urge
this Court to find Jergens distinguishable from this case because in Jergens the
false information was provided to the Parole Board, and in this case Defendant
DRC provided the false information to the Ohio General Assembly. In addition,
Defendants advocate that House Bill 86 only suggests that the Parole Board may
choose to re-hear inmate cases; from this, Defendants conclude that there is no
obligation for the Parole Board to consider any inmate for parole and no attendant
due process right for Plaintiff. In sum, Defendants advocate that House Bill 86
does not mandate the Parole Board to consider inmates for parole release, and they
find the legislation’s use of the word “may” does not create an obligation to rehear
any of the inmates’ cases.
Plaintiff argues that information was intentionally fabricated in order to mislead the
Ohio General Assembly and justify denying him meaningful parole consideration.
Plaintiff asserts that Defendants were required to review all cases of inmates falling
within the dictates of HB 86 § 10 (65 years of age or older and had statutory first
parole consideration hearing), and when false information is used in the review, it
is arbitrary and unreasonable to refuse to correct that information when brought to
their attention.
...
In order to prevail on a § 1983 claim for violation of procedural due process under
the Fourteenth Amendment, a claimant must show that the state deprived him of a
constitutionally protected interest in life, liberty, or property without due process
of law. See Sinermon v. Burch, 494 U.S. 113 (1990). A two-step inquiry is required
in the procedural due process analysis. The court must determine: (1) whether

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there is a protected liberty or property interest; and, (2) if so, what procedures are
required. Mathews v. Eldridge, 424 U.S. 219 (1976).
Under the Fourteenth Amendment, the state may not interfere with a constitutional
liberty or property interest without due process of law. Kentucky Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). Since Ohio has a discretionary parole
system, there is no attendant due process right in the grant of parole, and the state’s
statutory and regulatory guidelines for parole, without more, do not change this
calculus. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1,
7–12 (1979) (There is no constitutional right to be paroled before the expiration of
a valid sentence. If a state adopts a parole system, the existence of a liberty interest
in parole release is entirely dependent on state law.); Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 464–65 (1989) (If a state statute vests complete discretion
to the parole board to determine eligibility for parole, no liberty interest exists.);
Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007); see also Jergens v. State Dep’t
of Rehab. & Corr. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012) (Ohio
has a discretionary parole system, so an Ohio inmate has no liberty interest in
parole.)[]
While it is indisputable that an inmate has no liberty interest in parole insofar as the
state parole system is entirely discretionary, the Ohio Supreme Court has held that
inmates do have a right to accurate parole records, requiring that parole decisions
not be made in reliance on information that the Parole Board knows to be inaccurate
or has reason to know is inaccurate. See State ex rel. Keith v. Ohio Adult Parole
Auth., 141 Ohio St. 3d 375, 380 (2014) (The discretion given to the parole board
“must yield to statutory or regulatory requirements. Therefore . . . in any parole
determination involving indeterminate sentencing, the OAPA may not rely on
information that it knows or has reason to know is inaccurate.”). Thus, in essence,
the Ohio Supreme Court has determined that the Adult Parole Authority does not
have complete discretion because it does not have discretion to rely upon falsified
parole records, or refuse to investigate an inmate’s allegations of substantive errors
in the parole record. Accordingly, this Court finds that knowing reliance on false
information in a parolee’s file, which the Parole Authority has no discretion to do
under state law, can constitute a due process violation. See id.; see also R.C. §
2967.03.
The Sixth Circuit case Jergens v. State of Dep’t of Rehab. & Corr. Adult Parole
Auth. supports this holding. 492 F. App’x 567, 570 (6th Cir. 2012). In Jergens,
the Sixth Circuit found that while the existence of state-mandated procedural
requirements in a parole board’s review of a parolee’s file does not, in and of itself,
create a protected liberty interest, “[n]either this decision nor any binding circuit
precedent, however, forecloses the possibility that, in an appropriate case, a parole
board’s reliance on unconstitutional factors—or even on false information in the
parole file—could constitute a due-process violation”). Jergens, 492 F. App’x 567,
571 at n.5 (emphasis added). Unlike the defendant in Jergens, who cited to
nonspecific errors in his parole file, Kinney states specific allegations of fact—
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verifiable errors brought to the attention of the Parole Board which were not
corrected. See id. (“Jergens’s nonspecific allegations of falsity simply fail to make
out such a claim.”). Therefore, Plaintiff’s case is precisely the “appropriate case”
presupposed under Jergens where a parole board’s “false information in the parole
file” could “constitute a due-process violation.”
Jergens is not the first time the Sixth Circuit left the door open for procedural due
process claims where there are inaccuracies in a parole record, or reason to believe
inaccuracies exist. In Crouse v. Rothgerber, an inmate was denied parole based on
an inaccurate parole file. 791 F.2d 932 (6th Cir. 1986). However, the inaccuracies
were brought to the attention of the parole board, and they properly reevaluated the
inmate’s case based on the corrected information. Id. The Court, therefore,
assumed that any procedural rights that may have been denied were vindicated
when the inmate received adequate reconsideration “of the Board’s error to satisfy
due process.” Id. “In short, it appears that the Kentucky authorities adequately
remedied any assumed deprivation of procedural due process,” by reevaluating his
case. Id.
Defendants also argue that the Plaintiff’s case is not the type of case contemplated
by the Sixth Circuit in Jergens because Plaintiff does not allege that the Parole
Board relied on false information; instead, he alleges that the Defendant [DRC]
provided false information to the Ohio General Assembly. This is a distinction
without a difference. The information in the HB 86 Report provided to the General
Assembly explains the reasons why Plaintiff was denied parole, and it contains
objectively inaccurate information. For example, it is easily gleaned from looking
at objective evidence in the record, such as the autopsy report, that the three victims
were not shot in the head as stated in the HB 86 Report.
Viewing the facts in the light most favorable to the Plaintiff, Defendants knew the
information in Plaintiff’s HB 86 Report was incorrect, and/or had a mechanism to
verify the alleged inaccuracies, and failed to investigate the inaccuracies and/or
correct them. Under Keith v. Ohio, the Parole Authority did not have discretion to
rely upon falsified parole records. Thus, viewing the facts in the light most
favorable to the Plaintiff, he was deprived of his Fourteenth Amendment . . . Due
Process right to a correct parole record as contemplated in footnote 5 of Jergens.
(Id. at *1–5) (citations to the docket omitted).
Here, Plaintiff alleges in his Amended Complaint that the Defendants “willfully and
knowingly altered the facts, and changed the description of Plaintiff’s conviction . . . and
fabricated ‘facts’ or the nature of the crime in order to send a false report to the Ohio General
Assembly as was required pursuant to [§] 10, House Bill 86, effect 9-30-2011.” (ECF No. 7, at

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pg. 2–3.) Specifically, Plaintiff alleges that he was never convicted of the crime described in the
Ohio Parole Board Information Sheet. (ECF No. 7–1.) Plaintiff attaches his indictment and
verdict information as support for his allegation. (Id.) Kinney is analogous here because
plaintiff Kinney “state[d] specific allegations of fact—verifiable errors brought to the attention of
the Parole Board which were not correct.” 2015 WL 1197812, at *4. Like Kinney, Plaintiff’s
sets out specific errors and alleges that the Parole Board was made aware of the errors at
Plaintiff’s second parole board hearing on March 17, 2017 and in a letter. (ECF No. 7, at pg. 3.)
Taking these facts as true and in the light most favorable to the Plaintiff, Defendants knew the
information in Plaintiff’s parole report was incorrect and had a mechanism to verify the alleged
inaccuracies. Nevertheless, according to Plaintiff, Defendants failed to investigate the
inaccuracies or correct them. Accordingly, the Undersigned recommends that Defendants’
Motion to Dismiss be denied as moot on habeas corpus grounds and that Defendants’ Motion to
Dismiss be denied as to their assertion that Plaintiff has failed to state a claim under § 1983.
B. Eleventh Amendment Immunity
Defendants argue that Plaintiff’s official capacity claims against Defendants are barred
by the Eleventh Amendment. (ECF No. 16, at pg. 9–10.) A claim asserted against a state actor
in his or her official capacity is really a claim against the state. Rothhaupt v. Maiden, 144 F.
App’x 465, 471 (6th Cir. 2005) (“Official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent. An official-capacity claim is
not a claim against the official personally, for the real party in interest is the entity.”) (internal
quotation marks and citations omitted). The Eleventh Amendment of the United States
Constitution operates as a bar to federal-court jurisdiction when a private citizen sues a state or
its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000).
“It is well established that § 1983 does not abrogate the Eleventh Amendment.” Harrison v.
Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing Quern v.
Jordan, 440 U.S. 332, 341 (1979)). Because Ohio has not waived its sovereign immunity in
federal court, it is entitled to Eleventh Amendment immunity from suit for monetary damages.
Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999).
Accordingly, to the extent that Plaintiff seeks to assert claims for compensatory damages
against Defendants in their official capacities, these claims necessarily fail as barred by the
Eleventh Amendment. However, the Eleventh Amendment does not bar a plaintiff’s claims
against defendants in their official capacity for injunctive relief or in their individual capacities.
Prim v. Jackson, No. 2:14-cv-1219, No. 2:14-cv-2159, 2015 WL 3544668, at *8 (S.D. Ohio June
4, 2015) (citing Lawson v. Shelby Cnty., TN, 211 F.3d 331, 335 (6th Cir. 2002)). The
Undersigned, therefore, recommends that Defendants’ Motion to Dismiss be granted with respect
to any compensatory damages sought by Plaintiff against Defendants in their official capacities.
C. Respondeat Superior
Defendants argue that Plaintiff’s claims must be dismissed because they fall under the
doctrine of respondeat superior. (ECF No. 16, at pg. 10–12.) In order to plead a cause of action
under § 1983, a plaintiff must plead two elements: “(1) deprivation of a right secured by the
Constitution or laws of the United States (2) caused by a person acting under color of state law.”
Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing
McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006)). To sufficiently plead the
second element, a plaintiff must allege “personal involvement.” Grinter v. Knight, 532 F.3d 567,
575 (6th Cir. 2008) (citation omitted). Plaintiff must allege personal involvement because Ҥ

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1983 liability cannot be imposed under a theory of respondeat superior.” Id. (citation omitted).
Thus, to hold a supervisor liable under § 1983, a plaintiff “must show that the official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct . . . .”
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).
Defendants argue that Plaintiff’s allegations rely solely on Defendants supervisory
positions. (ECF No. 16, at pg. 11.) “[S]upervisory personnel are not liable under the doctrine of
respondeat superior; rather, [a] plaintiff must allege that a supervisor condoned, encouraged, or
knowingly acquiesced in the alleged misconduct.” White v. County of Wayne, 20 F. App’x 450,
451 (6th Cir. 2001) (citing Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir. 1995)
(italics added). Plaintiff makes the following allegations in his Amended Complaint regarding
Defendant Hudson (previously Defendant Mohr) and Defendant Thalheimer (previously
Defendant Imbrogno):
Plaintiff Al’Shahid alleges that the parole board decision was made in reliance of
false information, which was the responsibility of the Chairperson to investigate
and correct. The Defendant was informed of this incorrect and falsified information
at [Plaintiff’s] second parole board hearing [on] March 17, 2017, and in a letter. . .
. (ECF No. 7, at pg. 3.)
Plaintiff Al’Shahid alleges, that the Defendants in this case not only fabricated the
events of the nature of the offense, but switched the “Not Guilty” verdict to the
Guilty verdict of aggravated Burglary and robbery which Plaintiff Al’Shahid was
convicted. This is why it is alleged that the Defendants knowingly and intentionally
caused the injury in denying Plaintiff Al’Shahid, a meaningful parole board hearing
and release. (ECF No. 7, at pg. 4.)
(See generally ECF No. 7.) When indulging all reasonable inferences in favor of Plaintiff and
taking these well-pleaded facts as true, Plaintiff’s Amended Complaint establishes that
Defendants at least implicitly authorized, approved, or knowingly acquiesced in providing the
incorrect/falsified information to the Ohio General Assembly. See Love v. Franklin Cnty.,
Kentucky, No. 3:18-cv-00023, 2019 WL 1387692, at *6 (E.D. Ky. March 27, 2019) (establishing
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that because defendant saw prisoner was in labor and chose not to intervene, the plaintiff had
established defendant “at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.”). Specifically, Plaintiff alleges that
“Defendant”1 was informed of the allegedly incorrect/falsified information on two occasions, and
that both Defendants “fabricated the events of the nature of the offense” and “switched the ‘Not
Guilty’ verdict to the Guilty verdict[.]” Accordingly, under the limited circumstances of the
particular case, the Undersigned recommends that Defendants’ Motion to Dismiss be denied on
respondeat superior grounds.
D. Standing
Defendants argue that Plaintiff fails to establish standing because he has not
demonstrated how any of the Defendants caused the alleged harm. (ECF No. 7, at pg. 12–13.)
To satisfy Article II’s standing requirements, “a plaintiff must show (1) it has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision. Foster-Bey v. Rubitschun, No. 05-71318, 2005 WL 2010181, at *4 (E.D. Mich. Aug.
18, 2005) (citing Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 180–81 (2000)).
Defendants argue that because Plaintiff has not pled how each Defendant is personally
responsible for the alleged harm, his Complaint must be dismissed for a lack of standing. The

1

It is not clear from Plaintiff’s Amended Complaint whether he is attempting to refer to both
Defendants, or whether he is specifically referring to one Defendant. The Court construes this
language to implicate Defendant Thalheimer because the previous sentence discusses the
responsibility of the “Chairperson,” who is Defendant Thalheimer. (See ECF No. 7, at pg. 3.)
Because the Court must construe pro se Plaintiff’s pleading liberally, the Court will not make a
determination as to whether Plaintiff is referring to one or both Defendants in this instance.
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Parole Board, however, retains complete discretion whether to grant or deny parole. Defendants
argument “does not take into account that a dilution of procedural safeguards, in and of itself, is
an injury.” Id. Furthermore, “[s]tanding is a threshold determination.” Id. Therefore, “[u]nlike
proving the merits of the case . . . a plaintiff cannot be required to provide evidence of his injury
at this initial stage; it is sufficient for him to state his injury so that the court may determine
whether, assuming those facts do exist, it is cognizable.” Id. Here, based on the allegations in
Plaintiff’s Complaint, Defendants caused Plaintiff harm which is capable of being redressed by
the Court. Accordingly, the Undersigned recommends denying the Motion to Dismiss on the
grounds that Plaintiff lacks standing.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion to Strike (ECF No. 23) is DENIED.
Additionally, the Undersigned RECOMMENDS that Defendants’ Motion to Dismiss (ECF No.
16) be GRANTED IN PART and DENIED IN PART. Specifically, the Undersigned
RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED with respect to any
compensatory claims Plaintiff seeks against Defendants in their official capacities. The
Undersigned RECOMMENDS that Defendants’ Motion to Dismiss be DENIED with respect to
habeas corpus, failure to state a claim under § 1983, and standing.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party 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).

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Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are 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
omitted)).
IT IS SO ORDERED.

Date: June 21, 2019

/s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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