Opinion
No. C-3-01-359
February 7, 2003
REPORT AND RECOMMENDATIONS
Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendations.
I. INTRODUCTION
Plaintiff Michael B. Buhrman, a prisoner at the Lima Correctional Institution in Lima, Ohio, brings this action pro se under 42 U.S.C. § 1983 and Bivens claiming that Defendants violated his rights under the United States Constitution. Plaintiff claims that some of the Defendants breached a plea agreement and as a result, he has been unable to qualify for release from incarceration on parole.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Defendants are various county, state, and federal officials who Plaintiff alleges either breached the plea agreement and/or improperly denied Plaintiff release on parole.
This matter is before the Court on Defendant Daidone's Motion To Dismiss (Doc. 74), Defendants Smith, Cozza, and Walker's Motion To Dismiss (Doc. 75), Defendants Lockhart and Burnham's Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment (Doc. 82), Defendants Ghee, Wilkinson, Bedra, Capots, Crockett, Denton, Grinner, Hudson, Jones, Matthews, Doby, Widmer, Mitchell, Mulligan, and Upper's Motion For Summary Judgment (Doc. 97), Plaintiffs Memoranda In Opposition (Docs. 79, 83, 90, 102); and Defendants' respective Replies (Docs. 81, 87, 94, 103).
This matter is also before the Court upon Plaintiffs Motion To Dismiss Without Prejudice Defendants Lockhart, Smith, Cozza, Schneck, Daidone, Burnham, and Walker (Doc. 106), Defendant Schenk's Memorandum In Opposition (Doc. 107), and Plaintiff Reply (Doc.109).
II. FACTUAL BACKGROUND A. Plaintiffs Indictment And Plea Agreement
Unless otherwise indicated, this factual review is based on the allegations contained in Plaintiffs Complaint. At this stage of the litigation the Court accepts these allegations as true and construes them liberally in Plaintiffs favor. Infra, § IV(A).
Plaintiff was indicted in May 1992 by a Greene County, Ohio Grand Jury on three counts of aggravated murder. Plaintiff was also indicted in May 1992 by a Montgomery County, Ohio Grand Jury on twelve counts of various criminal offenses and one count of engaging in a pattern of corrupt activity. In October 1992 the Montgomery County Grand Jury indicted Plaintiff on seven additional counts, which "served to enhance the initial and/or original . . . count of Engaging in a Pattern of Corrupt Activity." (Doc. 67 at 13).
Plaintiff explains that in February 1993 "[he] entered into a multi-jurisdictional plea bargain agreement with the State of Ohio and Federal Government, by and through the Greene County and Montgomery County, Ohio, Prosecutor[s'] Offices, the Ohio Attorney General's Office, and the United States Attorney's Office." (Doc. 67 at 13). Pursuant to the terms of the plea agreement, Plaintiff pled guilty to three counts of involuntary manslaughter in the Greene County proceedings. He also pled guilty to one count of engaging in a pattern of corrupt activity in the Montgomery County proceedings. Plaintiff states, "It was further agreed that the Greene County and Montgomery County, Ohio sentences would be ordered to be served concurrently. As a result, . . . Plaintiff received a total cumulative sentence of thirteen (13) to fifty-five (55) years imprisonment. . . ." (Doc. 67 at 13).
Plaintiff alleges that he complied with the terms of the plea agreement by providing Defendants with information concerning unresolved crimes. Plaintiff maintains that the plea agreement in turn required Defendants Smith, Schenck, Daidone, Lockhart, Cozza, and Walker to send favorable letters to the Ohio Adult Parole Authority concerning Plaintiffs cooperation. These letters were to contain information "in favor of . . . obtaining Plaintiffs release from imprisonment at, or near, his statutory 'first' parole release consideration hearing." (Doc. 67 at 14).
Plaintiff emphasizes that the plea agreement did not allow any of the parties to withdraw from it or to set it aside unless litigation in state court was first initiated to determine if the plea agreement had been breached, and unless Plaintiff was first given a polygraph examination.
B. Unfavorable Letters And The Parol Board Proceedings
Plaintiff alleges that on May 5 and November 15, 1993, Defendant Cozza, the Executive Director of the Ohio Organized Crime Investigations Commission, sent letters to Defendant Wilkinson containing false information about Plaintiff. The May 5th letter was placed in Plaintiffs Parol Board master file and was considered by the Parol Board in denying Plaintiffs request for parole. Plaintiff claims that the letter directly violated the plea agreement. According to Plaintiff, these letters also furthered "a conspiracy between the Defendant(s) in the instant case . . . wherein Defendant Cozza extended his appreciation to Defendant Wilkinson for having taken certain action(s) against the Plaintiff . . ." (Doc. 67 at 16).
Plaintiff alleges that on February 20, 2001, Defendant Robert Smith, Assistant Ohio Attorney General submitted a letter to the Parol Board containing false information about Plaintiff and stating that the Ohio Attorney General's Office and the Ohio Organized Crime Investigations Commission strongly opposed his release on parole. On March 21, 2001, Defendant Robert Burnham, a Special Agent of the Federal Bureau of Investigation, submitted a letter to the Parol Board containing false information about Plaintiff and stating "that the 'longer' . . . Plaintiff remained incarcerated the better." (Doc. 67 at 21) (Plaintiffs emphasis omitted).
Between April 18, 2001 and October 31, 2001, some or all of the Ohio Adult Parol Board Defendants conducted interviews and/or hearings to determine first if Plaintiff met the criteria to be eligible for parole consideration and second if he should be released on parole.
On April 10, 2001, Defendant Stephen Walker, Director of the Ohio Organized Crime Investigations Commission, submitted a letter to the Parole Authority containing allegedly false information about Plaintiff and stating that he "'objected' to Plaintiffs release on parole." (Doc. 67 at 22) (Plaintiff s emphasis omitted).
Plaintiff appeared before the Parole Authority on April 18, 2001 "for his statutory 'first' parole release consideration hearing." (Doc. 67 at 22). The Parole Authority continued this hearing for sixty days allegedly "in light of Plaintiffs litigation in the United States District Court." (Doc. 67 at 22).
On April 26, 2001, Defendant Leon Daidone, a Montgomery County, Ohio Assistant Prosecutor, allegedly submitted a letter to the Parole Authority containing false information about Plaintiff and remarking that the State of Ohio "'strongly' opposed . . . Plaintiffs release on parole." (Doc. 67 at 23). The letter urged that Plaintiff should remain incarcerated "as long as the law allows." (Doc. 67 at 23) (Plaintiff s emphasis omitted).
On June 6, 2001, Plaintiff and his attorney met with Defendant Smith and Defendant William Schenk, the Greene County, Ohio Prosecutor in the Lima Correctional Institution. During this meeting, Plaintiff assured these Defendants "that he was willing to further his cooperation as originally agreed to, but that both he and his Counsel [were] concerned about the Defendants' involvement with the Ohio Adult Parole Authority relevant to the Plaintiffs parole release consideration process." (Doc. 67 at 24).
On June 20, 2001, Plaintiff again appeared before the Parole Authority and the hearing was again continued for sixty days. During the hearing, Defendant Richard Spence, a Parole Authority "interviewer," informed Plaintiff that "it would definitely be in his best interests to have the pending Federal Court litigation resolved prior to being heard by the Ohio Adult Parole Authority for parole release consideration." (Doc. 67 at 24) (emphasis omitted).
On August 16, 2001, Plaintiff appeared before the Parole Authority and the hearing was again continued for sixty days. Plaintiff alleges that during the hearing, Defendant David Doby, a member of the Parole Authority, "angrily questioned . . . Plaintiff in regards to 'who had filed the Federal Civil rights complaint.' Defendant Doby seemed particularly interested in 'whether the Plaintiff or his Attorney had filed the complaint. . . .'" (Doc. 67 at 25) (emphasis removed).
Plaintiff sent letters on September 27, 2001 to Defendants Schenk, Daidone, Smith, and Lockhart requesting that they each submit favorable letters to the Parole Authority outlining his "'substantial cooperation,' as agreed to under the terms of the plea agreement." (Doc. 67 at 26).
Plaintiff appeared before the Parole Authority on October 18, 2001. Defendants James Bedra and Scott Widmar, members of the Parole Authority, conducted the hearing. After reviewing the unfavorable letters allegedly submitted by some Defendants, Bedra and Widmar informed Plaintiff that "it had been predetermined that . . . Plaintiffs case would be referred back to the Central Office of the O.D.R.C. for a 'Full Board Hearing', at which time a determination would be made regarding what 'Offense Category' would be assigned to . . . Plaintiffs case, and what actual decision would be made in regards to whether to grant or deny parole release to . . . Plaintiff." (Doc. 67 at 26) (Plaintiff s emphasis omitted).
C. Plaintiffs Full Parole Hearing
On October 31, 2001, the Parole Authority conducted a "full board hearing" concerning Plaintiff without providing him or his attorney with notice or an opportunity to attend. Plaintiff later learned from staff members at the Lima Correctional Institution that the Parole Authority had denied him release on parole and he would remain incarcerated for another ten years before the Parole Authority would again review his eligibility for parole.
Plaintiff maintains that the Parole Authority erred in requiring him to be in category 13, the maximum category set forth in the Parole Authority's 1998-2000 Guidelines Manual. Based on this category, the Parole Authority recommended that Plaintiff be required to serve a minimum of twenty-five years imprisonment before being considered for release on parole. Plaintiff emphasizes that category 13 is the category for those — unlike Plaintiff — who committed aggravated murder.
The Parole Authority's decision stated,
On 8/23/83, inmate and co-def[endant] shot 3 victims killing them. Victim Wilson shot execution style twice in the face, once in the throat, twice in the torso. Victim Stoop shot once in the head throat slit from at to ear. Victim Stanley shot twice in head, slit throat v [presumable "victim"] six mo[nths] pregnant. The inmate co-def[endant] took cash drugs from victims before leaving the residence.
(Doc. 97, Exh. F at 0007). The Parole Authority determined that Plaintiffs offense category was 10 based on the fact the fact that Plaintiff was convicted of involuntary manslaughter during an aggravated robbery or a aggravated burglary. Id. at 0008 (citing Guidelines Manual § 204(B)(3)). The Guidelines Manual attached to Plaintiffs Amended Complaint confirms that involuntary manslaughter committed during an aggravated robbery or aggravated burglary is properly calculated at category 10. (Doc. 67, Exh. B at 4). The Parole Authority then determined that an upward departure of 3 categories, to offense category 13, was warranted because category 10 did not account for the following aggravating factors: three people were killed during the offense, and the "numerous other convictions this offender presents suggests involvement in organized crime. . . ." (Doc. 97, Exh. F at 0008). Under Category 13, Plaintiff would be eligible for release on parole in the range of 300 months to life imprisonment. Id.
Plaintiff alleges that the Parole Authority ignored the plea agreement, in which he agreed to plead to involuntary manslaughter. This conviction, according to Plaintiff, should have placed him in category 9 requiring him to serve 84-120 months in prison before being considered for release on parole.
III. PLAINTIFF'S AMENDED COMPLAINT A. Claims
Plaintiffs Amended Complaint is thirty-seven pages long and contains 101 numbered paragraphs. He has not separately numbered his claims. Reading his Amended Complaint liberally in his favor, Plaintiff raises several groups of constitutional claims. Each group contains numerous allegations and constitutional claims against some or all of the Defendants. (Doc. 67 at 30-33). Plaintiff further claims that Defendants retaliated against him and conspired to violated his constitutional rights.
Reading Plaintiffs Amended Complaint literally, and counting each claimed constitutional violation against each Defendant, Plaintiff raises over one hundred constitutional claims. This is a conservative estimate, because the Court counts Plaintiffs claims against the Parole Authority as claims against a single entity (doc. 67, ¶¶ 79-84), rather than as claims each Parole Authority member. Because Plaintiff names at least fourteen Parole Authority members, counting Plaintiffs claims against each of them would increase the estimate of the number of Plaintiffs claims to over 250. Plaintiff, moreover, seeks to name Jane Doe and John Doe Defendants "x 100." (Doc. 67 at 5).
In group one (Doc. 67, ¶¶ 76-78), Plaintiff focuses on Defendants Cozza, Smith, Burnham, Walker, Daidone, Schenck, and Lockhart He claims that these Defendants, individually or collectively, violated his rights under the First, Fifth, Sixth, and Fourteenth Amendments by breaching the plea agreement, when they provided the Parole Authority with unfavorable letters concerning him; when they failed to provide the Parole Authority with favorable letters; by participating in a conspiracy to keep him incarcerated "the longer the better"; and when they withdrew from the plea agreement without first obtaining a polygraph from him and without initiating state court proceedings for the purpose of establishing whether the plea agreement had been breached. (Doc. 67 at ¶¶ 76-78).
In group two (Doc. 67 at ¶¶ 80, 83), Plaintiff raises constitutional challenges to the procedures used by the Parole Authority. (Doc. 67 at ¶¶ 63-64, 80, 83). Plaintiff claims that the Parole Authority Defendants violated his rights under the Fifth, Sixth, and Fourteenth Amendments by depriving both him and his attorney with notice of, and the opportunity to attend, his "full parole board hearing." (Doc. 67 at ¶¶ 63-64, 80). Plaintiff further claims that the Parole Authority Defendants violated his constitutional rights by considering the unfavorable letters containing false information submitted to the Parole Authority by some Defendants; by denying him access to these letters or other correspondences; by considering the strong opposition to his release on parole that many Defendants maliciously presented; and by participating in a conspiracy to violate his constitutional rights by keeping him incarcerated "the longer the better." See doc. 67 at ¶ 83 (and paragraphs cited therein).
In group three (Doc. 67 at 81-82, 84), Plaintiff claims that the Parole Authority violated his rights under the Fifth, Sixth, and Fourteenth Amendments by placing him in "category 13" of the Parole Authority's 1998-2000 guidelines manual, which is the category for aggravated murder. This, according to Plaintiff, led the Parole Authority to determine that he was not eligible to be considered for release on parol until he has served twenty-five years in prison. Plaintiff states, in pertinent part, "The Plaintiff has been injured by this conduct, because placement in a ' higher ' Offense Category means that Plaintiff must spend a much longer time in prison before Defendant(s) the Ohio Adult Parole Authority will consider releasing the Plaintiff on parole." (Doc. 67 at ¶ 70 (Plaintiffs emphasis); see also Doc. 67 at ¶¶ 81-82, 84)).
The copy of the Guidelines Manual attached to Plaintiffs Amended Complaint reveals that aggravated murder does indeed fall into category 13. (Doc. 67, Exhibit B at 3).
Plaintiff also claims that the Parole Authority Defendants retaliated against him for filing a federal civil rights lawsuit in violation of his rights under the Fifth and Fourteenth Amendments by repeatedly continuing his parole proceedings. Plaintiff supports these claims with the following allegations:
1. On April 18, 2001, Defendant Spence, the Parole Authority's interviewer, continued Plaintiffs first statutorily required parole hearing for sixty days "in light of the Plaintiffs litigation in the United States District Court." (Doc. 67 at ¶¶ 53, 79).
2. On June 20, 2001, Plaintiff appeared before the Parole Authority. Defendant Spence, a Parole Authority interviewer, told Plaintiff "it would definitely be in his best interests to have the pending Federal Court litigation resolved prior to being heard by the Ohio Adult Parole Authority for parole release consideration." (Doc. 67 at ¶¶ 57, 79). Plaintiffs parole hearing was again continued for sixty days. Id.
3. During Plaintiffs next parole hearing, on August 16, 2001, Defendant David Doby, a Parole Authority interviewer, appeared quite agitated and angrily questioned Plaintiff about "who had filed the Federal Civil rights complaint. Defendant Doby seemed particularly interested in 'whether the Plaintiff or his attorney had filed the complaint.'" (Doc. 67 at ¶¶ 60, 79). Defendant Doby continued Plaintiffs parole hearing for another sixty days. Id.
4. Defendants James Bedra and Scott Widmer conducted Plaintiffs next parole hearing on October 18, 2001. During this hearing, Defendants Bedra and Widmer reviewed the negative letters about Plaintiff, which other Defendants had submitted and which contained false information. Defendants Bedra and Widmer informed Plaintiff, "it had been predetermined that Plaintiffs case would be referred to the Ohio Department of Rehabilitation and Corrections for a full board hearing." (Doc. 67 at ¶¶ 62, 79 (emphasis omitted)).
5. The Parole Authority Defendants conducted a full board hearing on October 31, 2001 and determined that Plaintiff would not be released on parole. The Parole Authority failed to inform either Plaintiff or his attorney about the date, time, and place of the hearing. (Doc. 67 at ¶¶ 64, 79).
Plaintiff lastly claims that all Defendants conspired to violate his rights under the First, Fifth, Sixth, and Fourteenth Amendments by engaging in the conduct set forth in his other claims. (Doc. 67 at ¶ 85).
B. Relief Sought
Plaintiff's Amended Complaint seeks declaratory and injunctive relief. Plaintiff seeks a declaratory judgment finding, among other things, that he has the right to the specific performance of each and every term of the plea bargain agreement and that Defendants have violated his constitutional rights guaranteed by the First, Fifth, Sixth, and Fourteenth Amendments. (Doc. 67 at 34). Plaintiff does not specifically seek compensatory damages in his Amended Complaint. Yet, if the Court issued a declaratory judgment finding that Defendants violated Plaintiff's constitutional rights, this finding would entitle Plaintiff to compensatory damages. He has stated in a Memorandum In Opposition, "There are no damage(s) being sought in this case and cause. . . ." (Doc. 83 at 12).
The Court records indicate that on December 27, 2001 Plaintiff voluntarily dismissed a prior § 1983 case he had filed against three of the same Defendants in the instant case (Smith, Cozza, and Ghee). Buhrman v. Smith, C-3-01-161 (Rice, CJ). Plaintiff also raised claims in that case concerning the breach of his plea agreement, and he sought monetary damages and a preliminary injunction. (Doc. 97, Exh. A).
Plaintiff seeks a permanent injunction preventing Defendants from continuing to violate his constitutional rights. Plaintiff also seeks a permanent injunction regarding Defendants' conduct towards his plea bargain and parole. For example, Plaintiff seeks an Order requiring Defendants Smith, Lockhart, Schenck, Daidone, Cozza, Burnham, and Walker to immediately provide the letters "requesting that the Defendant(s) the Ohio Adult Parole Authority, grant the Plaintiff favorable consideration regarding his Offense Category placement and suitability for parole. . . ." (Doc. 67 at 34-35). Plaintiff likewise seeks a permanent injunction prohibiting the Parole Authority from keeping any negative letters or other material received from Defendants in "the Parole Authority Master Files," and he seeks an Order requiring the Parole Authority to have an immediate re-hearing of his case. (Doc. 67 at 35).
Plaintiffs Amended Complaint seeks numerous other Permanent Injunctions.
Plaintiffs Amended Complaint lastly requests " any other relief deemed appropriate and just. . . ." (Doc. 67 at 37 (Plaintiffs emphasis)).
IV. STANDARDS OF REVIEW
A. Motions To Dismiss
In ruling on a Motion to Dismiss for failure to state a claim upon which relief can be granted, the factual allegations in the Complaint must be taken as true and construed in a light most favorable to the plaintiff. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995).
Because Plaintiff brings this case pro se, the Court liberally construes his allegations in his favor. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Williams v. Browman, 981 F.2d 901, 903 (6th Cir. 1992). "A pro se Complaint is held to an especially liberal standard, and should only be dismissed for failure to state a claim if it appears 'beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000) (quoting in part Estelle, 429 U.S. at 106).
The Court, however, "need not accept as true legal conclusions or unwarranted factual inferences." Mixon v. State of Ohio, 193 F.3d 389, 400 (6th Cir. 1999). Indeed, a Motion to Dismiss is often a proper procedural device for resolving pure questions of law. E.g., Mixon, 193 F.3d at 400 and n. 9.
B. Motions For Summary Judgment
The central issue presented by a Motion for Summary Judgment is a threshold issue — whether the case presents a proper jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A moving party is entitled to summary judgment in its favor if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 247.
To determine if a proper jury question is presented, the Court must evaluate the evidence and inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enterprises, Inc. v. OPPCA, LLC, 219 F.3d 547, 551 (6th Cir. 2000). The Court's function is not to weigh the evidence to determine the truth of the matters asserted but to determine if there is a genuine issue of material fact for trial. Anderson, 477 U.S. at 249.
"The burden placed upon the movant for summary judgment is to show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden at trial." Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 403 (6th Cir. 1992); Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). If the movant makes this showing, the non-moving party may not rely on the bare allegations of its Complaint but must present affirmative evidence in support of its claims. Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994); Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992); Street, 886 F.2d at 1479-80.
Production of affirmative evidence is required at the summary-judgment stage because "[o]ne of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex, 477 U.S. at 323-24. Thus, to avoid summary judgment and dismissal of its challenged claims, the nonmoving party "must do more than . . . simply show that there is some metaphysical doubt as to the material facts . . .," or that there is "the mere existence of some factual dispute between the parties. . . ." Anderson, 477 U.S. at 247 (emphasis in original); see Mitchell, 964 F.2d at 582. "The non-moving must present affirmative evidence on critical issues sufficient to allow a jury to return a verdict in its favor." Guarino, 980 F.2d at 403.
Matsushita, 475 U.S. at 586.
Because Plaintiff is proceeding pro se, the Court must construe his Complaint liberally in his favor. Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993). The Court, however, is not required "to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 404; InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989); Street, 886 F.2d at 1479-80. Rather, the burden falls on Plaintiff, as the nonmoving party, to designate specific facts or evidence in dispute. Anderson, 477 U.S. at 250; Metiva, 31 F.3d at 379; Guarino, 980 F.2d at 404-05; Street, 886 F.2d at 1479-80.
Ultimately, the Court must determine at the summary-judgment stage whether the evidence presents a sufficient disagreement to require submission of the challenged claim or claims to a jury or whether the evidence is so one-sided that the moving party must prevail as a matter of law. Anderson, 477 U.S. at 251-52; Little Caesar Enterprises, 219 F.3d at 551.
V. ANALYSIS
A. Section 1983
In order to state a claim under 42 U.S.C. § 1983, Plaintiff must allege that Defendants acted under color of state law and that Defendants' conduct deprived him of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001).
B. Habeas Corpus Or § 1983?
1. Applicable Standards
Plaintiffs Amended Complaint presents an issue regarding whether his constitutional claims are cognizable in this prisoner civil rights action under 42 U.S.C. § 1983 or whether he may only raise them in a petition for habeas corpus under 28 U.S.C. § 2254."[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). When a state prisoner challenges the validity of his prosecution or conviction and seeks relief that would result in his immediate or speedier release from imprisonment, his sole remedy is a writ of habeas corpus. Preiser, 411 U.S. at 500. A habeas petition at its heart attacks the legality of the prisoner's physical restraint. Id. at 486.
When examining a prisoner's § 1983 Complaint, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." Heck v. Humphrey, 512 U.S. 477, 487 (1994). The required analysis focuses on the remedy resulting from a prisoner's success on the merits of his or her claims, rather than on the particular remedy sought by the Complaint. Consequently, even if the prisoner seeks monetary damages for claimed constitutional violations, his or her Complaint is not cognizable under § 1983 when success on the merits "necessarily imp[ies] the invalidity of the punishment imposed." Wood v. Balisok, 520 U.S. 641, 648 (1997); see Heck, 512 U.S. at 487.
In the event that claims are not cognizable under § 1983, the claims should not be stayed while the prisoner exhausts them in state court. "Section 1983 contains no judicially imposed exhaustion requirement, Heck, 512 U.S. at 481, 483; absent some other bar to the suit, a claim is either cognizable under § 1983 and should immediately go forward, or it is not and should be dismissed." Wood, 520 U.S. at 649.
2. Plaintiffs Claims
A review Plaintiffs Amended Complaint reveals that some of his claim (or groups of claims) are not cognizable under § 1983.
* * *
Plaintiffs claims in group one concern the alleged breaches of his plea agreement. These claims are not cognizable under § 1983. Plaintiffs allegations supporting these claims mainly focus on ways in which the Defendant Prosecutors breached the plea agreement not only by sending false information to the Parole Board but also by opposing his release on parole. Assuming these Defendants breached the plea agreement as Plaintiff claims — by failing to assist him in securing his release on parole and by their malicious opposition to his release — the proper remedy lies in state court. The remedy would be either an Order enforcing the terms of the plea agreement through specific performance or an opportunity for Plaintiff to withdraw from the agreement. See Marbry v. Johnson, 467 U.S. 504, 510 (1984); Santobello v. New York, 404 U.S. 257, 262-63 (1971); see also McPherson v. Barksdale, 640 F.2d 780, 781 (6th Cir. 1981); Martin v. Burke, 2000 U.S. Lexis 26775 at *9-13 (6th Cir. 2000); Trapani v. Coombe, 1997 U.S. App. LEXIS 15226 at *3-4 (2nd Cir. 1997) (and cases cited therein). As either of these possibilities necessarily implies the invalidity of Plaintiff's sentence, his claims in group one are not cognizable under § 1983. See O'Hara v. Wigginton, 24 F.3d 823, 826-27 (6th Cir. 1994); see also Dixon v. Alexander, 741 F.2d 121, 123-25 (6th Cir. 1984); English v. Ghee, 13 Fed. Appx. 306, 307-08, 2001 U.S. App. LEXIS 13970 (6th Cir. 2001); Webber v. Weaver, 6 Fed. Appx. 706, 708, 2001 U.S. LEXIS 3609 (10th Cir. 2001); Preston v. Reynolds, 1997 U.S. App. LEXIS 27033 (6th Cir. 1997).
Plaintiffs allegations that these Defendants breached his plea agreement are cognizable under Ohio law. See Ohio Rev. Code § 2953.21.
The above conclusion should not be read as unsympathetic to the serious due process concerns raised when a plea agreement is breached. See Santobella, 404 U.S. at 262. Yet, despite these due process concerns, the method to correct a breach of a plea agreement is not by way of a civil rights action under § 1983; it is instead by first raising this claim in state court and then, if needed, by filing a habeas corpus petition under 28 U.S.C. § 2254. See Preiser, 411 U.S. at 500; O'Hara, 24 F.3d at 826-27; Dixon, 741 F.2d at 123-25.
The Court notes that Plaintiff has filed two habeas corpus actions in this Court. In Buhrman v. Carter, Plaintiff claimed, in part, that the State of Ohio breached his plea agreement "in at least 22 separate, specific and precise areas." Buhrman v. Carter, C-3-98-570 (Doc. 1 at 8). This habeas corpus action was dismissed in August 2000. Id. at Doc. 79-80. Plaintiffs second habeas corpus petition also raises claims concerning the twenty-two purported breaches of his plea agreement. Burhman v. Carter, C-1-3-569 (Doc. 1 at 5-6). The fact that this claim is identical to the claim raised in the instant case does not alter the conclusion that Plaintiffs non-cognizable claims in the instant case must be dismissed rather than stayed pending Plaintiffs exhaustion of them in his habeas action or in state court. See Wood, 520 U.S. at 649 ("[A] claim is either cognizable under § 1983 and should immediately go forward, or it is not and should be dismissed.")
* * *
Plaintiffs claims in group two challenge, in part, the Parole Board's decision not to release him on parole and also challenge the Parole Board's consideration of certain Defendants' unfavorable letters, which contained allegedly false information about Plaintiff As far as Plaintiff seeks to challenge the Parole Board's decision not to release him, this claim is not cognizable in a § 1983 action. In this claim, Plaintiff effectively says, "I was eligible for parole, and they should have released me." This claim is therefore a quintessential habeas corpus challenge to the very fact or duration of Plaintiff s imprisonment. See Preiser, 411 U.S. at 500.
This judicial officer notes that a panel of the Sixth Circuit Court of Appeals recently determined that certain procedural due process claims regarding parole are cognizable under § 1983. Dotson v. Wilkinson, 300 F.3d 661, 666 (6th Cir. 2002). The panel reasoned that success on a procedural challenge would only provide a prisoner with eligibility for parole consideration (a "ticket to get in the door of the parole board"), instead of an immediate release from imprisonment. 300 F.3d at 665-66. The Court of Appeals, however, vacated the three-Judge panel's decision in Dotson by accepting the case for en banc review. As a result, the issues raised in Dotson remain pending as of the date of this Report. Despite the fact that the panel's decision in Dotson has been vacated, this Court agrees with its reasoning. 300 F.3d at 665-66. Plaintiff raises a purely procedural due process challenge that, if successful, would not result in his immediate release but would instead entitle him to another review by the Parole Authority. Additionally, the Sixth Circuit has considered the merits of prisoners' due process challenges to parole board proceedings in published decisions in at least two cases. See Inmates of Orient Correctional Inst. v. Adult Parole Authority, 929 F.2d 233 (6th Cir. 1991); see also Van Curen v. Jago, 641 F.2d 411 (6th Cir. 1981). Dotson, moreover, is consistent with decisions by at least three other Circuit Courts of Appeals. See Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000); Herrera v. Harkins, 949 F.2d 1096 (10th Cir. 1991); Johnson v. Pfeiffer, 821 F.2d 1120 (5th Cir. 1987). Accordingly, pursuant to Dotson, Plaintiffs due process challenge to the procedures used by the Parole Board Defendants are cognizable under § 1983.
Rule 35 of the Sixth Circuit Rules of Procedure automatically vacates a three-Judge panel's decision when a case proceeds to en banc review.
However, Plaintiff has failed to allege facts that make injunctive and declaratory relief appropriate. In Pulliam v. Allen, 499 U.S. 522, 104 S.Ct. 1970 (1984), the Court held that equitable relief is limited to cases where there is a showing of an inadequate remedy at law and a serious risk of irreparable harm. 104 S.Ct. at 1981-1992. Inasmuch as it appears that Plaintiff has an adequate remedy at law in the Ohio Courts to challenge the Parole Board's calculation and classification under the Ohio parole guidelines, see Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456 (2002), and there being no indication that Plaintiff has attempted to pursue this available remedy, the Court concludes that equitable relief is not warranted.
* * *
Plaintiffs retaliation claim is cognizable under § 1983 because it does not attack the validity of his incarceration or sentence. Plaintiff alleges that the Parol Board Defendants retaliated against him for his act of filing a federal lawsuit by continuing his parole hearing several times and by ultimately not releasing him on parole. See infra, pp. 20-21. Although these allegations focus in part on the Parole Authority Defendants' acts related to Plaintiffs parole hearings and eligibility, Plaintiffs retaliation claim does not attack either the procedure or result of the parole hearing, and therefore does not implicate the validity of Plaintiff s incarceration. Instead, Plaintiff asserts that the Parole Authority Defendants retaliated against him in the above ways in violation his First Amendment right of access to the courts. This claim is therefore cognizable under § 1983. See Bell v. Johnson, 308 F.3d 594, 602-03 (6th Cir. 2002); see also Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir. 1999).
* * *
Plaintiffs conspiracy claims are not cognizable to the extent they rest on allegations he raises in support of his non-cognizable claims. However, Plaintiffs conspiracy claim is cognizable to the extent he alleges that the Parole Authority Defendants conspired to retaliate against him in violation of his First Amendment right of access to the courts.* * *
In sum, what remains cognizable in this case are Plaintiffs procedural due process challenge to the Parol Board proceedings, his retaliation claim and his conspiracy to retaliate claim. Plaintiffs remaining claims are not cognizable under § 1983.
C. Plaintiff Has Stated A Retaliation Claim
To state a retaliation claim, Plaintiff must allege facts sufficient to show (1) he engaged in protected conduct; (2) Defendants took an adverse action against him that would deter a person of ordinary firmness from continuing to engage in protected conduct; and (3) a causal connection exists between his protected conduct and Defendants' adverse actions. Thaddeus-X, 175 F.3d at 394.
Accepting Plaintiffs allegations as true and construing them liberally in his favor reveals that he has stated a retaliation claim under the First Amendment against at least some of the Parol Board Defendants.
First, Plaintiffs allegation that he filed a federal lawsuit is sufficient to show that he engaged in conduct protected by the First Amendment. Bell, 308 F.3d at 607 (citing Thaddeus-X, 175 F.3d at 391).
Second, the objective standard applicable to "adverse action" (i.e., person-of-ordinary-firmness) "is designed to weed out only inconsequential actions. . . ." Thaddeus-X, 175 F.3d at 398. Thus, Plaintiff need not show that Defendants committed egregious adverse action; he must simply allege facts showing more than a de minimis threat or deprivation. Thaddeus-X, 175 F.3d at 398. Plaintiffs allegations, if accepted as true, are sufficient to support the conclusion that the some of the Parol Board Defendants took adverse action against him by continuing his parole hearings on several occasions, thereby requiring Plaintiff to wait many months for a final parole hearing, and by denying him release on parole. These constituted adverse acts because a person of ordinary firmness would — rather than place his eligibility for release on parole at risk — be deterred from continuing to prosecute his federal lawsuit.
Lastly, Plaintiffs allegations are sufficient to show a causal connection between the adverse action taken by Defendants and his protected activity. Plaintiff alleges that his first two parole hearing were continued because he had filed a federal lawsuit. Supra, p. 10. Plaintiff alleges that Defendant Spence made comments indicating that Plaintiff should take care of his pending federal case before his final parole hearing. Id. The obvious implication of this is that his eligibility for parole would be negatively impacted by the existence of pending litigation. Similarly, Plaintiffs allegations are sufficient to show that Defendant Doby, and through him the Parol Board, considered the fact the Plaintiff had filed a federal lawsuit when considering his eligibility for parole. Supra, p. 10. The message to Plaintiff was clear: either stop pursuing your federal lawsuit or your eligibility for parole will be at risk.
In reaching the above conclusions, Plaintiffs retaliation claim is distinguished from his other (non-cognizable) claims concerning the parole proceedings. Plaintiffs retaliation claim is based on the First Amendment. To prove this claim, he does not need to show that the parole proceedings violated his rights under the Due Process Clause, because "a retaliation claim may lie, even when the allegedly retaliatory conduct itself would not be actionable. . . ." Bell, 308 F.3d at 609; see Thaddeus-X, 175 F.3d at 398.
Accordingly, Plaintiffs Amended Complaint states a retaliation claim under the First Amendment against at least some of the Parol Board Defendants.
D. Plaintiffs Retaliation Claims
The Ohio Defendants contend that they are entitled to summary judgment on Plaintiffs retaliation claim, because the undisputed facts show that the alleged retaliatory acts would have been taken for non-retaliatory reasons. The Ohio Defendants contend that the continuances of his parole hearings occurred at Plaintiffs request and that the severity of his crimes, caused the denial of his release on parole.
The Ohio Defendants are Ghee, Wilkinson, Bedra, Capots, Crockett, Denton, Grinner, Hudson, Jones, Matthews, Doby, Widmer, Mitchell, Mulligan, and Upper.
The record contains the affidavits of Defendants Spence and Bedra asserting in pertinent part that the denial of Plaintiff s parole was not based on any litigation he filed but was first based on the fact that he was involved in the killing of three people during a burglary. These affidavits also assert that the denial of Plaintiff s parole was also based on his numerous other convictions, which suggested that he was involved in organized crime, and he was therefore viewed as a more serious risk of re-offending. (Doc. 97, Exh. E at ¶¶ 14-15; Exh. G at ¶¶ 5, 7). Defendant Spence states that Plaintiffs first meetings with the Parol Board (April 18 and June 20, 2001) were continued at his attorney's requests; that Plaintiffs August 16, 2001 meeting with the Parol Board was continued at Plaintiffs request; that at his Parol Board hearing on October 18, 2001, his case was referred for a Central Office Board Review Hearing to allow the Full Board to determine the correct offense behavior category; to review the Full Parol Board's action in James Stelts' case; and, to determine the total time Plaintiff should serve prior to release. (Doc. 97, Exh. E at ¶ 9).
Stelts was Plaintiffs co-defendant in state court.
These explanations — which support the decision deny Plaintiff a release on parole — show that the Ohio Defendants would have taken the same actions in the absence of Plaintiff s protected activity of filing a lawsuit. Consequently, unless Plaintiff points to evidence sufficient to create genuine factual dispute over these explanations, the Ohio Defendants are entitled to summary judgment on his retaliation claim. See Thaddeus-X, 175 F.3d at 399; Metiva, 31 F.3d at 379. This Plaintiff has failed to do. He has not pointed to any evidence in the record contradicting Defendants Bedra's and Widmer's affidavits. Consequently, no genuine dispute exists regarding the non-retaliatory reasons for the Parol Board's actions. See Doc. 102. Indeed, Plaintiffs Memorandum In Opposition to Defendants Ghee, Wilkinson, and the Parole Board members' Motion For Summary Judgment makes no mention of his retaliation claim. (Doc. 102). The record contains only the bare allegations of retaliation in Plaintiffs Amended Complaint, and in the face of Defendants' properly supported Motion For Summary Judgment, Plaintiff has failed to show a genuine issue exists regarding the non-retaliatory reasons for the Ohio Defendants' actions. See Thaddeus-X, 175 F.3d at 399-400.
Accordingly, the Ohio Defendants are entitled to summary judgment on Plaintiffs retaliation claim.
E. Plaintiff Has Not Stated A Conspiracy Claim
"Liability attaches for a civil conspiracy when a plaintiff can prove that two or more defendants agreed to injure another by unlawful action and committed an overt act in furtherance of the conspiracy." Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 541 (6th Cir. 2002). Claims against government officials based on the existence of a conspiracy must be supported by specific factual allegations. Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).
Plaintiff has failed to raise specific factual allegations sufficient to state a claim that the Parol Board Defendants conspired to retaliate against him, because he does not specifically allege facts indicating that two or more of these Defendants agreed to retaliate against him because he filed a federal lawsuit. Although Plaintiff alleges that Defendants Spence and Doby commented on his pending federal lawsuit; that Defendants Bedra and Widmer considered the false information submitted by other Defendants; and, that the Parol Board ultimately declined to release him on parole, none of these other allegations in Plaintiffs Amended Complaint specifically allege that two or more Parol Board Defendants agreed to retaliate against Plaintiff because he filed a federal lawsuit. In reaching this conclusion, the Court is well aware of the need to construe Plaintiffs pro se pleadings liberally in his favor. Browman, 981 F.2d at 903. This liberal standard, however, does not alter the need for Plaintiff to plead specific facts in support of his conspiracy claim, Gutierrez, 826 F.2d at 1538-39, which he has not done.
Accordingly, Plaintiffs Amended Complaint fails to state a conspiracy claim against the Parol Board Defendants.
F. Plaintiff Has Not Stated A Procedural Due Process Claim
The Due Process Clause of the Fourteenth Amendment prohibits the states from depriving persons of their right to life, liberty, or property without due process of law. Although prisoners are not at liberty in the same manner as ordinary citizens, they retain "a residuum of liberty." Inmates of Orient Corr. Inst. v. Ohio Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991) (quoting Olim v. Wakinekona, 461 U.S. 238, 245 (1983)) (other citation omitted). There is, however, "no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence." Inmates of Orient, 929 F.2d at 235 (quoting Greenholtz v. Inmates of the Nebraska Penal Correctional Complex, 442 U.S. 1, 7(1979)).
Thus, a due process right to certain parole procedures does not exist in Ohio unless Ohio law contains mandatory language requiring the release on parole of prisoners who meet the criteria for such a release. Inmates of Orient, 929 F.2d at 235 (and cases cited therein). Mandatory language, when present, provides prisoners with more than an abstract desire for release on parole. This is needed to establish a due process claim, because "a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner must, instead, have a legitimate claim of entitlement to it." Inmates of Orient, 929 F.2d at 235. If Ohio law creates this entitlement, the Fourteenth Amendment protects it from denial without due process. Inmates of Orient, 929 F.2d at 235.
Ohio has a completely discretionary parole system. See Ohio Rev. Code § 2967.03; see also Inmates of Orient, 929 F.2d at 235; Blake v. Shoemaker, 4 Ohio St.3d 42 (1983). Thus, the applicable Ohio statutory scheme does not contain mandatory language creating a legitimate entitlement to release on parole. Inmates of Orient, 929 F.2d at 235; see Ohio Rev. Code § 2967.03. Because Plaintiff has no constitutionally protected liberty interest in obtaining release on parole, "he cannot challenge the procedures used to deny him parole." Johnson v. Wilkinson, 2000 U.S. App. LEXIS 8788 (6th Cir. 2000) (citing Olim, 461 U.S. at 250); see Scott v. Ohio Adult Parole Auth., 1999 U.S. App. LEXIS 23667 (6th Cir. 1999); see also Akbar-El v. Wilkinson, 1996 U.S. App. LEXIS 2787 (6th Cir. 1996); cf. Bullock v. McGinnis, 5 Fed. Appx. 340 (6th Cir. 2001) (Michigan law, identical result); Preston v. Reynolds, 1997 U.S. App. LEXIS 27033 (6th Cir. 1997) (Tennessee law, identical result).
Accordingly, under controlling Sixth Circuit case law, Plaintiffs Amended Complaint fails to state a claim for relief under the Due Process Clause.
G. The Eleventh Amendment
The Ohio Defendants argue that the Eleventh Amendment bars Plaintiffs claims against them. The Ohio Defendants include numerous investigators and members of the Parole Board; Defendant Ghee, the chairperson of the Ohio Adult Parole Authority; Defendant Wilkinson, Director of the Ohio Department of Rehabilitation; Defendant Smith, an Assistant Ohio Attorney General; and Defendants Smith and Walker, former Directors of the Ohio Organized Crime Investigation Commission.
Reading Plaintiffs Amended Complaint liberally in his favor, it appears he may seek monetary damages against the Ohio Defendants. This is so even though Plaintiff stated in a Memorandum in Opposition that he is not seeking monetary damages (Doc. 83 at 12), because Plaintiffs Amended Complaint in part seeks " any other relief deemed appropriate and just . . .," (Doc. 67 at 37 (Plaintiffs emphasis)). Given the importance of the Eleventh Amendment's bar to monetary damages against state officials, any damages claims against the Ohio Defendants in their official capacities must be removed from this litigation.
It is well settled that "a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 940 (6th Cir. 1990) (quoting Quern v. Jordan, 440 U.S. 332, 337 (1979)), overruled on other grounds by Hafer v. Melo, 502 U.S. 21, 27 (1991); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment therefore bars Plaintiffs claims against the Ohio Defendants in their official capacities, because these claims are equivalent to claims brought directly against the treasury of the State of Ohio. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71-72 (1989); Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999).
Accordingly, the Eleventh Amendment bars Plaintiffs damages claims against the Ohio Defendants in their official capacities.
H. Absolute Immunity Protects The Prosecutor Defendants
Defendant Schenk contends that he is entitled to absolute immunity for any claim Plaintiff brings against him in his individual capacity because his "alleged conduct or omissions fall within those functions for which [he] is entitled to prosecutorial immunity." (Doc.99 at 8). Similarly, Defendants Lockhart, Smith, Cozza, Walker, and Daidone contend that absolute immunity protects them from liability on any of Plaintiff s claims raised against them in their respective individual capacities.
Absolute immunity protects prosecutors from § 1983 liability for acts undertaken in his or her role as an advocate for the State when those acts were "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); see Prince v. Hicks, 198 F.3d 607, 611 (6th Cir. 1999). A functional-analysis applies: "This approach looks to the nature of the function performed, not the identity of the actor who performed it." Buckley v. Fitsimmons, 509 U.S. 259, 269 (1993). Consequently, absolute immunity does not extend to a prosecutor's investigatory activity (searching for clues or probable-cause corroboration), or to a prosecutor's act of providing legal advice to police. Burns v. Reed, 500 U.S. 478, 489-90, 496 (1991). In contrast, absolute immunity bars § 1983 claims against prosecutors for their participation in a probable-cause hearing or for allegedly false or defamatory statements during and related to a judicial proceeding. See Buckley, 509 U.S. at 269; see also Burns, 500 U.S. at 489-90
In the instant case, absolute immunity bars Plaintiffs § 1983 claims against the Ohio prosecutors and his Bivens claim against Defendant Lockhart based on the assertion that these Defendants breached his plea agreements by sending false and unfavorable information to the Parol Board, by failing to send favorable information to the Parol Board, by participating in a conspiracy to keep him incarcerated "the longer the better," and by withdrawing from the plea agreement without first obtaining a polygraph from Plaintiff and without initiating state court proceedings for the purpose of establishing whether the plea agreement had been breached. Because these alleged activities concern either conduct related to the Parol Board or violations of certain terms of the plea agreement, they are intimately connected with Defendant Prosecutors' roles as advocates. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1149-50 (2nd Cir. 1995) (absolute immunity bars claims based on false representations prompting plea agreement, misrepresentations to Bureau of Prisons); see also Allen v. Thompson, 815 F.2d 1433, 1434 (11th Cir. 1987)(Prosecutor's malicious letter to Bureau of Prisons protected by qualified immunity); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir. 1991) (absolute immunity attaches to plea bargaining activity "due to its intimate association with the judicial process"); Johnson v. Kegans, 870 F.2d 992, 997-98 (5th Cir. 1989)(Prosecutor's statements to Parol Board protected by absolute immunity); Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir. 1987) (absolute immunity bars claim based on advocating certain level of bail); cf. Santobello, 404 U.S. at 260 ("The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice.").
Accordingly, absolute immunity shields Defendant Lockhart from Plaintiffs Bivens claims and the Ohio Prosecutors Plaintiffs § 1983 claims.
I. The Federal Defendants
The federal government and its officials are not subject to suit under § 1983. Ana Leon T. v. Fed. Reserve Bank, 823 F.2d 928, 931 (6th Cir. 1987). Plaintiffs amended Complaint therefore fails to the extent it seeks to raise § 1983 claims against the federal Defendants — Lockhart, a former Assistant United States Attorney; and Burnham, a Special Agent of the Federal Bureau of Investigation. Id.
Defendants Lockhart and Burnham contend that the United States Government has not waived its sovereign immunity against constitutional claims, and therefore, they cannot be held liable for Plaintiffs claims against them in their official capacities. This contention in well taken. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2nd Cir. 1994); Ashbrook v. Block, 917 F.2d 918, 924 (6th Cir. 1990).
The only potential source of liability Plaintiff has against Defendants Lockhart and Burnham are Bivens claims. As seen above, absolute immunity protects Defendant Lockhart from Plaintiffs Bivens claims. Supra, § V(H). The only remaining federal claim is Plaintiffs Bivens claim against Defendant Burnham.
J. Qualified Immunity Protects The Ohio And Federal Defendants
The Ohio Defendants and Defendant Burnham contend that they are entitled to qualified immunity for numerous reasons. (Doc. 97 at 9-21).
Government officials, including prison officials, "performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Bell, 308 F.3d at 601. Qualified immunity not only insulates government officials from individual liability for money damages, but also insulates them from the burdens and expenses of litigation and trial, because qualified immunity is more than a mere defense to liability; it is an immunity from suit. Saucier v. Katz, 533U.S. 194, 199(2001).
Once an individual defendant raises a qualified immunity defense, the plaintiff must satisfy a two pronged analysis: (1) "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant's] conduct violated a constitutional right?" and, if so, (2) Was the right clearly established? Saucier, 533 U.S. at 201. In addition, when a defendant files a Motion For Summary Judgment based on qualified immunity, Fed.R.Civ.P. 56 requires the plaintiff to "present evidence sufficient to create a genuine issue of material fact as to whether the defendant in fact committed those [unconstitutional] acts." Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992) (internal citations and punctuation omitted).
For a constitutional right to be clearly established — thereby precluding the application of qualified immunity — "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier, 533 U.S. at 202 (citation omitted); see Bell, 308 F.3d at 601. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation confronted." Saucier, 533 U.S. at 202.
In the instant case, qualified immunity shields the Ohio Defendants and Defendant Burnham from liability in their individual capacities on Plaintiffs retaliation claims, because he has failed to meet his burden at the summary-judgment stage of producing affirmative evidence sufficient to show that these Defendants in fact retaliated against him. See supra, § V(D); see Russo, 953 F.2d at 1043; Dominique v. Telb, 831 F.2d 673, 677 (6th Cir. 1987) (qualified immunity applies when uncontradicted facts show no constitutional violation).
Qualified immunity protects the Ohio Defendants and Defendant Burnham from Plaintiffs conspiracy claim and his claim under the Fourteenth Amendment, because Plaintiff has failed to plead a violation of the Due Process Clause or the existence of a conspiracy. See Supra, § V(E)(F); see also Saucier, 533 U.S. at 201 (failure to state a constitutional claim triggers qualified immunity).
Lastly, Plaintiff has not pointed to any case clearly establishing that Ohio law creates a right under the Due Process Clause to certain parole procedures. At best, the law in this area remains in doubt, because an analogous case, Dotson v. Wilkinson, 300 F.3d 661 (6th Cir. 2002), remains pending before an en banc panel. Supra, p. 18. Under these circumstances, the procedural due process right Plaintiff seeks to enforce was not clearly established at the time the Ohio Defendants and Defendant Burnham allegedly participated in Plaintiffs parole proceedings.
Accordingly, for all of the above reasons, qualified immunity shields the Ohio Defendants from § 1983 liability, and Defendant Burnham from liability under Bivens, on Plaintiffs retaliation, procedural due process, and conspiracy claims.
K. Plaintiffs Motion For Leave To Dismiss Certain Defendants Without Prejudice
On August 20, 2002 — some two years after he initiated this case — Plaintiff filed a Motion seeking to dismiss Defendants Lockhart, Smith, Cozza, Schenk, Daidone, Burnham, and Walker without prejudice because the Montgomery County Court of Common Pleas issued a decision on Plaintiffs petition for post-conviction relief. This, according to Plaintiff, raises res judicata concerns, and because he intends to file a federal habeas corpus petition under § 2254 once he has exhausted the claims at issue in his state post-conviction proceedings.
Rule 41(a)(2) prohibits a plaintiff from voluntarily dismissing a case except "upon order of the court and upon such terms and conditions as the court deems proper." Plaintiff should not be permitted to voluntarily dismiss his claims against the above Defendants at this stage of the litigation, particularly in the face of their dispositive Motions. As the above Defendants' Motions have merit, allowing Plaintiff to voluntarily withdraw his claims against them (resulting in a dismissal without prejudice) prior to a ruling on Defendants' Motions would provide Plaintiff with a future opportunity to raise all his claims against these Defendants. Such a result would cause prejudice to these Defendants by denying them the final resolution to which they are now entitled on Plaintiffs meritless and non-cognizable § 1983 claims and by exposing them to costs of defending against the same claims in the future litigation. In addition, under these circumstances, granting the Motion would also be contrary Fed.R.Civ.P. 1's goal "to secure the just, speedy, and inexpensive determination of every action." Moreover, Plaintiff in Case No. C-3-01-161 raised claims arising out of the same facts and circumstances as this case against Defendants Smith, Cozza, Lockhart, Daidone and Schenck which were dismissed pursuant to Fed.R.Civ.P. 41. As such, a second dismissal of these claims would be with prejudice under the Fed.R.Civ.P. 41(a)(1).
Accordingly, Plaintiffs Motion For Leave To Drop Defendants Lockhart, Smith, Cozza, Schenck, Daidone, Burnham, and Walker should be denied.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant Daidone's Motion To Dismiss (Doc. 74) be GRANTED;
2. Defendants Smith, Cozza, and Walker's Motion To Dismiss (Doc. 75) be GRANTED;
3. Defendants Lockhart and Burnham's Motion To Dismiss (Doc. 82) be GRANTED, and their Alternative Motion For Summary Judgment (Doc. 82) be DENIED as moot;
4. Plaintiffs Motion For Leave To Drop Defendants Lockhart, Smith, Cozza, Schenck, Daidone, Burnham, and Walker (Doc. 106) be DENIED;
5. Defendants Ghee, Wilkinson, Bedra, Capots, Crockett, Denton, Grinner, Hudson, Jones, Matthews, Doby, Widmer, Mitchell, Mulligan, and Upper's Motion For Summary Judgment (Doc. 97) be GRANTED;
6. Plaintiffs Amended Complaint be DISMISSED.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by mail. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).