Opinion
Case No. C2-02-479
July 16, 2002
ORDER
On May 31, 2002, the Magistrate Judge issued a Report and Recommendation (file doc. #5) recommending that all of plaintiff Rayshan Watley's ("Watley") claims be dismissed pursuant to 28 U.S.C. § 1915 (e)(2) and/or 1915A for failure to state a valid claim. On June 11, 2002, the Court received Watley's motion for leave to amend his complaint (file doc. #6), as well as his objections to the Report and Recommendation (file doc. #7). The matter is now before the Court to consider plaintiffs' objections de novo as well as the motion for leave to amend. For the following reasons, Watley's motion for leave to amend will be denied, the objections to the Report and Recommendation will be overruled, and the Report and Recommendation will be adopted in its entirety.
I.
Citing Fed.R.Civ.P. 15 and various Supreme Court precedent, Watley contends that the "district courts discretion to dismiss plaintiffs complaint without leave to amend is severely restricted" and that he should be given leave to amend his complaint to "cure the deficiency in the original filing." Motion for Leave to Amend Complaint at 1 (errors in original). Contrary to Watley's assertion, however, the Sixth Circuit has repeatedly held that a complaint subject to screening pursuant to 28 U.S.C. § 1915 (e)(2) and/or 1915A must be evaluated as of the time of filing and that, should one or both of these statutes require dismissal, amendments to cure any deficiencies in the initial complaint may not be considered to avoid dismissal. See, e.g., Benson v. O'Brian, 179 F.3d 1014, 1016 (6th Cir. 1999); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). Accordingly, Watley's motion to amend will be denied, and the Court may not consider any of its additional factual or legal arguments in considering whether to adopt the Report and Recommendation's conclusion that the initial complaint failed to state any valid claim.
II.
Watley objects to the Magistrate Judge's conclusion that the complaint fails to articulate any valid claim. Construed liberally, as this Court must, see Haines v. Kerner, 404 U.S. 519 (1972), Watley's 42 U.S.C. § 1983 complaint is premised on the recent application of DRC Policy 501-36 by the Ohio Parole Board and his recent denial of parole. He claims that his statutory rights under Ohio Revised Code § 2967.21 have been violated, that DRC Policy 501-36 constitutes an unconstitutional ex post facto law, and that his due process rights under the Fourteenth Amendment have been violated. He seeks immediate release on parole and injunctive relief preventing the Ohio Parole Board from applying these guidelines against any other prisoner.
A. Ohio Revised Code § 2967.21
Despite Watley's objections, the Magistrate Judge was correct in concluding that Ohio Revised Code § 2967.21 is not implicated by his claims. This statutory provision serves to ensure that a prisoner's term of imprisonment or eligibility for parole is not altered by a transfer between correctional facilities. First, Watley makes no allegation in his complaint that he has ever resided in more than one correctional facility in Ohio or, correspondingly, that he has ever experienced a transfer between institutions, a fact fatal to this claim. Furthermore, were the Court to assume that such facts had been pled, Watley appears, at best, to contend that his eligibility for parole changed after a transfer from one institution to another, rather than alleging that his eligibility changed because of a transfer from an institution with one policy to an institution with a different policy. All of Ohio's correctional facilities are covered by the DRC policy of which Watley complains, and he make no allegation that there is some other specific policy in place at his current institution that differs from those imposed at some former institution that altered his parole eligibility. Accordingly, this statute lends him no support.
B. DRC 501-36 and Denial of Parole
Plaintiff complains that DRC 501-36 unconstitutionally infringes on his eligibility for parole. Watley contends that this policy, entitled "Parole Board Hearing Policy," has prevented him from obtaining release. It provides, in relevant part:
Appropriate conduct and adherence to institution rules and regulations are necessary for the orderly and safe operation of a correctional institution. Inmates who present an unacceptable risk to other inmates and staff represent an unacceptable risk to the community. Any inmate with a maximum security classification or any other classification title utilized to denote the most serious security risk inmates, at the time of release eligibility, shall not be granted release. A continued date shall be established which, to the extent possible, gives at least sufficient time for the inmate to be eligible for a security classification review which may lead to a security classification reduction.
DRC 501-36. He claims that it is an unconstitutional ex post facto law and that it violates various state statutory and federal constitutional rights he enjoys to provide him with parole. Fundamentally, the Court may not consider these arguments in the instant 42 U.S.C. § 1983 action.
Watley makes his contention quite clear in his complaint: "[I]f defendants policy would not have been emplemented plaintiff would have been granted on emediate release and will be granted on emidiate release if this policy gets lifted. . . . [D]efendants policy is preventing plaintiff from leaving prison." Complaint (file doc. #3) at 3 (errors in original). He seeks immediate release from prison based upon these arguments. He is, fundamentally, attacking his denial of parole as a result of the application of DRC 501-36. The Supreme Court conclusively established in Heck v. Humphrey, 512 U.S. 477 (1994) that any case where a prisoner "challenges the fact or duration of his confinement and seeks immediate or speedier release" must be brought by habeas corpus action, "even though such a claim may come within the literal terms of § 1983." Heck, 512 U.S. at 480. Heck simply establishes an insurmountable bar to bringing the instant suit, and the Magistrate Judge correctly recommended that it should be dismissed.
III.
The Magistrate Judge was also correct in determining that Watley's claims, to the extent that they were arguably not barred by the sweep ofHeck, had fundamental substantive shortcomings. First, Watley cannot claim to have been deprived of any property interest in being released on parole because, simply put, he has no such property interest. See Jago v. Van Curen, 454 U.S. 14, 21 (1981); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7-12 (1979); Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authorit, 929 F.2d 233 (6th Cir. 1991); Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994); Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990). Watley seems to pin his argument upon a statement allegedly made by a member of the Parole Board that if it were not for the DRC provision at issue, they would have been obligated to release him from prison. Regardless of the truth of this statement, Ohio prisoners have no constitutional claim of entitlement to parole before the expiration of their maximum sentence of imprisonment even if the Ohio Parole Board has approved their release on or after a particular date. Inmates, 929 F.2d a 235; see also Jago, 454 U.S. at 20-21. Because Watley enjoys no liberty or property interest in parole, the application the DRC provision in question did not violate his federal due process rights. This claim is also clearly barred by Heck v. Humphrey. Second, to the extent he articulates some nebulous, equal protection claim that avoids the absolute bar of Heck, he fails Plead facts of discrimination which would allow him to raise a valid equal protection claim. See Herron v. Harrison, 3 F.3d 410, 417 (6th Cir. 2000); Chapman v. City of Detroit, 8 F.2d 459, 465 (6th Cir. 1986).
IV.
For the foregoing reasons, Watley's motion to amend (file doc. #6) is DENIED. Watley's objections the Report and Recommendation are OVERRULED, and the Magistrate Judge's Report and Recommendation (file doc. #5) is ADOPTED in its entirety. Plaintiff's claims are DISMISSED pursuant to 28 U.S.C. § 1915 (e)(2) and/or 1915A. The Clerk is instructed to mail a copy of the complaint to the defendants with a copy of the Report and Recommendation (file doc. #5) and a copy of this Order.