Opinion
22AP-592
06-01-2023
Timothy Moore, Plaintiff-Appellant, v. Ohio Parole Board, Defendant-Appellee.
The Law Office of Eric J. Allen Ltd., and Eric J. Allen, for appellee. Dave Yost, Attorney General, D. Chadd McKirtrick, and John H. Bates, for appellant. Eric J. Allen. D. Chadd McKirtrick.
APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 22CV-1487)
On brief:
The Law Office of Eric J. Allen Ltd., and Eric J. Allen, for appellee.
Dave Yost, Attorney General, D. Chadd McKirtrick, and John H. Bates, for appellant.
Argued:
Eric J. Allen.
D. Chadd McKirtrick.
DECISION
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Timothy Moore, appeals from a decision of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss of defendant-appellee, Ohio Parole Board ("the board"). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On March 8, 2022, Moore filed a complaint against the board seeking a declaratory judgment that the board denied him meaningful consideration for parole in violation of Ohio law. Pursuant to his complaint, Moore was convicted, in 2006, of one count of murder in violation of R.C. 2903.02(A), a first-degree felony, for killing his wife, Terri Moore, and he is serving a life sentence with the possibility for release on parole after 15 years. In January 2021, Moore appeared before the board for his first parole hearing. The hearing lasted 45 minutes and the board questioned Moore "at length about the [offense] and his reintegration plan." (Mar. 8, 2022 Compl. at ¶ 30.) The board ultimately denied Moore's request for parole and determined he must serve an additional 95 months before his next parole hearing. Moore applied for reconsideration on March 3, 2021, and the board denied his request for reconsideration on April 6, 2021.
{¶ 3} Moore alleged in his complaint that the board did not provide him, in advance of the hearing, the documents the board planned to rely on related to his parole, depriving him of the ability to contest "the accuracy and validity of these documents." (Compl. at ¶ 31.) Additionally, Moore alleged in the complaint that the board failed to consider the documentation he provided to the board regarding his suitability for parole. He also alleged the board's continuance for 95 months is excessive given Moore's engagement in programming and his lack of institutional disciplinary action.
{¶ 4} Moore states in the complaint he was able to obtain certain documents the board considered and relied upon through a public records request. However, Moore alleged the board relied on additional "undisclosed materials" and those materials contained false and misleading allegations related to his wife's murder. (Compl. at ¶ 38.) Finally, Moore alleged the board has an "unwritten policy" to deny parole to all first-time parole-eligible offenders convicted of a violent crime. (Compl. at ¶ 44.) Moore asserts this so-called "first flop" policy was a material fact in the board's decision to deny him parole. (Compl. at ¶ 45.) Moore attached to his complaint the board's decision and minutes denying his parole, his request for reconsideration, the board's letter denying his request for reconsideration, a copy of his current institutional report summary with his program participation, and a news article with the title "Ohio Parole Board member quits, calls agency toxic and secretive." (Ex. 9, Compl.)
{¶ 5} The board responded to Moore's complaint in an April 7, 2022 motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). The board argued Moore did not allege any details or specific information that he was denied meaningful consideration for parole and merely speculates the information the board relied upon was inaccurate or misleading since he was not afforded an opportunity to review the information before his hearing. Further, the board noted incarcerated individuals eligible for release on parole have no right to review confidential board records prior to their hearings. The board also noted Moore makes an unsupported assertion that the board has a "first flop" policy. Ultimately, the board asserts that Moore's complaint demonstrates the board properly considered the factors for parole eligibility, and Moore did not allege any facts to support his speculation that the board relied on inaccurate or misleading documents in making its decision. Thus, the board argued the trial court must dismiss Moore's complaint for failure to state a claim. Moore filed a memorandum contra the board's motion to dismiss, arguing he set forth sufficient allegations under Ohio's notice pleadings requirements to survive a motion to dismiss.
{¶ 6} In a September 7, 2022 decision, the trial court granted the board's Civ.R. 12(B)(6) motion to dismiss Moore's complaint. The trial court concluded Moore did not plead any specific facts to support his speculative allegation that the board relied on false or misleading reports or used a "first flop" policy to deny his parole. Accordingly, the trial court determined Moore failed to allege any facts to support his claim that he was denied meaningful consideration for parole. Thus, the trial court granted the board's motion to dismiss the complaint in its entirety pursuant to Civ.R. 12(B)(6). Moore timely appeals.
II. Assignment of Error
{¶ 7} Moore assigns the following sole assignment of error for our review: The trial court erred in granting defendant's motion to dismiss.
III. Discussion
{¶ 8} In his sole assignment of error, Moore argues the trial court erred in granting the board's motion to dismiss his complaint for declaratory judgment.
{¶ 9} Under Civ.R. 12(B)(6), a defendant may move to dismiss a complaint for failure to state a claim upon which relief can be granted. A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a motion to dismiss, pursuant to Civ.R. 12(B)(6), the court must construe the complaint in a light most favorable to the plaintiff, presume all factual allegations in the complaint are true, and make all reasonable inferences in favor of the plaintiff. Mitchell, Admr., v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). The dismissal of a complaint for failure to state a claim is proper when it appears, beyond doubt, that the plaintiff can prove no set of facts entitling him to relief. Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12 (11th Dist.). When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, this court's standard of review is de novo. Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
{¶ 10} A declaratory judgment action is a civil action that provides a remedy in addition to other legal and equitable remedies that may be available. Burge v. Ohio Atty. Gen., 10th Dist. No. 10AP-856, 2011-Ohio-3997, ¶ 7, citing Victory Academy of Toledo v. Zelman, 10th Dist. No. 07AP-1067, 2008-Ohio-3561, ¶ 8. The purpose of the Declaratory Judgments Act, codified at R.C. Chapter 2721, is "to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations," and courts are to liberally construe and administer it. One Energy Ents., L.L.C. v. Ohio Dept. of Transp., 10th Dist. No. 17AP-829, 2019-Ohio-359, ¶ 30, citing Swander Ditch Landowners' Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs., 51 Ohio St.3d 131, 134 (1990). A party seeking declaratory judgment must demonstrate: (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Burge at ¶ 7, citing Walker v. Ghee, 10th Dist. No. 01AP-960, (Jan. 29, 2002). A trial court properly dismisses a complaint for declaratory judgment where there is no real controversy or justiciable issue between the parties. Norman v. Franklin Cty. Prosecuting Atty., O'Brien, 10th Dist. No. 16AP-191, 2016-Ohio-5499, ¶ 9, citing Burge at ¶ 7. A "justiciable issue" for the purpose of a declaratory judgment requires the existence of a legal right or interest. JBK Ventures, Inc. v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-184, 2021-Ohio-2046, ¶ 6, citing Festi v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1372, 2005-Ohio-3622, ¶ 11.
{¶ 11} "A prisoner has no constitutional or statutory right to parole." State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, ¶ 19, citing State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81 Ohio St.3d 267, 268 (1998). Because there is no constitutional or statutory right to be released on parole, the denial of parole does not deprive an inmate of liberty so long as the state makes the parole decision discretionary. Id., citing Henderson at 125. In Ohio, the Ohio Adult Parole Authority has "wide-ranging discretion in parole matters." Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-6719, ¶ 28; R.C. 2967.03. Thus, because parole decisions in Ohio are discretionary, the denial of parole cannot constitute a deprivation of liberty or denial of due process. Phelps v. Ohio Parole Bd., 10th Dist. No. 22AP-175, 2023-Ohio-284, ¶ 13, citing R.C. 2967.03; Keith at ¶ 19, citing State ex rel. Hattie v. Goldhardt, Acting Chief, Adult Parole Auth., 69 Ohio St.3d 123, 126 (1994).
{¶ 12} Nonetheless, the parole authority does not have unlimited discretion. State ex rel Bailey v. Ohio Parole Bd., 152 Ohio St.3d 426, 2017-Ohio-9202, ¶ 10. "The Revised Code creates an inherent expectation 'that a criminal offender will receive meaningful consideration for parole.'" (Emphasis sic.) Id., quoting Layne at ¶ 27. The Supreme Court of Ohio has explained "[t]his principle of 'meaningful consideration' is violated, for example, when officials evaluate an inmate's parole eligibility based on an 'offense category score' that does not correspond to the actual offense(s) of which the inmate has been convicted." Id., citing Layne at ¶ 27. Additionally, an inmate has not been provided meaningful consideration for parole "if the parole authority bases its decision on information in an inmate's file that is substantively incorrect." Id., citing Keith at ¶ 23.
{¶ 13} In his complaint for declaratory judgment, Moore alleged the board denied him meaningful consideration for parole. Specifically, Moore asserts the board denied him meaningful consideration when it: (1) failed to provide him with copies of all reports, documents, or other information that the board considered at the parole hearing or in making its decision to deny his parole; and (2) used a "first flop" policy to predetermine his parole should be denied as it was Moore's first eligibility for parole.
{¶ 14} Moore first argues he has set forth sufficient factual allegations to survive the board's motion to dismiss because he stated in his complaint that the board did not provide him with copies of all documents and information it considered in denying his parole. However, an inmate seeking parole has no clear legal right to review his or her parole record prior to the scheduled hearing. State ex rel. Brust v. Chambers-Smith, Dir., 156 Ohio St.3d 331, 2019-Ohio-857, ¶ 21. Additionally, the parole authority is "not required to conduct an extensive investigation in every prisoner's case to ensure the accuracy of its files." Id., citing Keith at ¶ 27. Instead, the Supreme Court has explained that "each inmate is permitted to respond to the factual information discussed at the [parole] hearing and to submit verbally or in writing any additional information that is pertinent." Id.
{¶ 15} Turning to the specific allegations in the complaint, Moore stated that after his hearing he requested copies of the materials the board considered and relied upon when it made the parole determination. Moore states the board provided him with some documents but withheld others on the grounds they were not subject to a public records request or that Moore did not identify the documents with enough specificity. In his complaint for declaratory judgment, Moore still does not identify any of the withheld documents with specificity. Instead, he asserts he cannot identify the documents with specificity because he does not have them. Stated another way, Moore's argument is that he has no way to know if the board relied on incorrect information when it denied his parole because the board did not provide him with all the documents it considered when making its parole decision.
{¶ 16} Notably, Moore does not allege the board failed to consider the factors mandated under Ohio Adm.Code 5120:1-1-07. Moreover, beyond his unsupported belief that the board must have relied on incorrect information, Moore does not allege with specificity in his complaint that the board relied on substantively incorrect information, as in Keith, or that the board used the wrong offense category score, as in Layne. Instead, Moore's position is that he should be able to obtain all the documents the board considered in order for him to determine if the board relied on any inaccurate information in denying his parole. As we explained above, an inmate seeking parole does not have such a right. Brust at ¶ 21, citing Keith at ¶ 27. An inmate does have a right to respond to the factual allegations discussed at the parole hearing, and Moore did apply for reconsideration of the board's decision. Brust at ¶ 21. However, though Moore disagrees with the board's ultimate decision, he does not allege in his complaint there was any factual error in the board's decision.
{¶ 17} Thus, construing the complaint in a light most favorable to Moore and presuming all factual allegations as true, Moore has not alleged any set of facts demonstrating the board relied on incorrect information. At best, Moore has alleged only a conclusory allegation, without accompanying underlying factual assertions, that the board relied on substantively incorrect information and that the matter should proceed to the discovery phase so he may learn whether the board did, in fact, consider substantively incorrect information. As this court has stated, however, "the purpose of discovery is not to permit one party to conduct a 'fishing expedition' for evidence to support his or her claim." Beard v. New York Life Ins. & Annuity Corp., 10th Dist. No. 12AP-977, 2013-Ohio-3700, ¶ 28, citing Winkle v. Southdown, Inc., 2d Dist. No. 92-CA-107 (Sep. 3, 1993). To survive a Civ.R. 12(B)(6) motion to dismiss, the plaintiff must set forth sufficient factual allegations in the complaint, itself, including the documents attached to the complaint. See State ex rel. Nyamusevya v. Franklin Cty. Court of Common Pleas Honorable Judge Daniel R. Hawkins, 10th Dist. No. 22AP-327, 2023-Ohio-840, ¶ 30, citing Civ.R. 10(C) ("[a] motion to dismiss for failure to state a claim is procedural and tests the sufficiency of the complaint itself and any attached documents"). "Permitting discovery when the allegations in the complaint are insufficient to state a claim would be improper." Beard at ¶ 28.
{¶ 18} Additionally, Moore alleges in his complaint that he was denied meaningful consideration for parole because the board allegedly has an unwritten policy to deny parole the first time an offender is eligible for parole. Moore asserts this policy means the board did not give him meaningful consideration for parole because the board had predetermined that the seriousness of his offense would outweigh all other information at the parole hearing.
{¶ 19} We find the Supreme Court's decision in Bailey, to be instructive. In Bailey, five inmates filed an original action seeking a writ of mandamus against the board alleging they were denied meaningful consideration for parole because the board allegedly had an unwritten policy of denying parole to so-called "old-law offenders," or those offenders sentenced to an indeterminate prison term for a crime committed prior to the enactment of the July 1, 1996 sentencing reforms. Id. at ¶ 2. The inmates alleged that the board had predetermined that, with respect to every remaining old-law offender, the seriousness of their offenses outweighs all other factors. In affirming the appellate court's dismissal of the complaint, pursuant to Civ.R. 12(B)(6), the Supreme Court determined the inmates' allegation of an unwritten policy to deny parole to old-law offenders did not state a claim upon which relief could be granted. Bailey at ¶ 12. The Supreme Court noted the inmates failed to allege that the board held them to account for offenses more serious than the ones they actually committed or based their decisions on factually inaccurate information. Id. Rather, the Supreme Court stated, even by the very terms of the complaint, the inmate's sole allegation is that the board "overvalue[d] the seriousness of the crimes, as compared to whatever evidence of rehabilitation the inmates have presented. But that weighing process is precisely the point at which the parole board exercises its discretion." Id. Thus, the Supreme Court held "[s]o long as each assessment rests on correct facts and falls within permissible guidelines, an inmate has no basis to challenge the [parole] decision." Id.
{¶ 20} Thus, Moore's reference to the existence of a "first flop" policy represents his disagreement with the board's weighing of the parole factors, but it does not create a set of facts that could establish he was denied meaningful consideration for parole. We also note that although Moore attached to his complaint a news article related to the parole process to support his allegation of an unwritten policy, the article does not create a set of facts that could establish he was denied meaningful consideration for parole. Pursuant to the exhibits Moore attached to his complaint, the board considered the circumstances unique to Moore's conviction and his own efforts at rehabilitation. The board then weighed those factors and determined Moore was not suitable for parole. Though Moore disagrees with the board's decision, he does not allege any set of facts that would demonstrate he was denied meaningful consideration for parole.
{¶ 21} Finally, to the extent Moore argues his complaint is sufficient to survive a motion to dismiss based on his statement that the board denied him meaningful consideration for parole, we are mindful that a court need not accept as true unsupported and conclusory legal propositions set forth in the complaint. Colvin v. Ctr. for Dev. & Property Solutions., L.L.C., 10th Dist. No. 20AP-535, 2021-Ohio-4392, ¶ 8, citing Bullard v. McDonald's, 10th Dist. No. 20AP-374, 2021-Ohio-1505, ¶ 11. Though Moore uses pertinent legal language in his complaint, he does not support this language with any relevant facts that would entitle him to relief.
{¶ 22} Having reviewed the record, we agree with the trial court that Moore failed to raise a cognizable claim that the board denied him meaningful consideration for parole. Because Moore failed to plead a justiciable controversy, he therefore failed to state a valid claim for a declaratory judgment upon which relief may be granted. Accordingly, the trial court did not err in granting the board's Civ.R. 12(B)(6) motion to dismiss. We overrule Moore's sole assignment of error.
IV. Disposition
{¶ 23} Based on the foregoing reasons, the trial court did not err in granting the board's Civ.R. 12(B)(6) motion to dismiss Moore's complaint for declaratory judgment. Having overruled Moore's sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
EDELSTEIN and LELAND, JJ., concur.