Canales v. Gabry

• Decision Date: 24 February 1994
• Docket Number: Civ. A. No. 93 CV 73203 DT.
• Citation: 844 F. Supp. 1167
• Parties: Jose CANALES, Plaintiff, v. Gary GABRY, Defendant.
• Court: U.S. District Court — Western District of Michigan

844 F. Supp. 1167

Jose CANALES, Plaintiff, v. Gary GABRY, Defendant.

Civ. A. No. 93 CV 73203 DT.

United States District Court, E.D. Michigan, S.D.

February 24, 1994.

Jose Canales, pro se.

Christine M. Campbell, Asst. Atty. Gen., Corrections Div., Lansing, MI, for defendant.

ORDER

GILMORE, District Judge.

The Court has reviewed the file, Magistrate Judge Virginia M. Morgan's Report and Recommendation, and Plaintiff's Objections submitted in the above captioned matter.

The Report and Recommendation regarding Defendants' Motion to Dismiss is hereby accepted and entered as the findings and conclusions of the Court:

Now, therefore, IT IS ORDERED that Magistrate Judge Morgan's Report and Recommendation be, and the same hereby is, ADOPTED, and that Defendants' Motion to Dismiss be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that Plaintiff's Complaint be, and the same hereby is, DISMISSED.

REPORT AND RECOMMENDATION

MORGAN, United States Magistrate Judge.

This matter is before the court on defendant's Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(6) and request for judgment as a matter of law. The sole defendant is Gary Gabry, Chairman of the Michigan Parole Board. Pursuant to an earlier order of partial dismissal, the claim against defendant is allowed only in his official capacity.

Plaintiff, Jose Canales, is a prisoner incarcerated at the Saginaw Regional Correctional Facility, Saginaw, Michigan. Plaintiff was sentenced to "parolable" life imprisonment for First Degree Criminal Sexual Conduct, September 14, 1978. Plaintiff filed this pro se, in forma pauperis complaint pursuant to 42 U.S.C. § 1983 alleging that the parole board violated his constitutional rights by extending the time between parole reviews. Plaintiff asks for injunctive relief, declaratory judgment, and costs.

For the reasons stated in this Report, it is recommended that defendant's motion to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6) be granted.

STANDARD OF REVIEW

Defendant contends that plaintiff's pro se complaint fails to state claims upon which relief can be granted. In reviewing the dismissal of a complaint under Fed. R.Civ.P. 12(b)(6), the court must construe the complaint liberally in plaintiff's favor and accept as true all factual allegations and permissible inferences therein. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Dismissals of complaints under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985), and pro se complaints are held to "less stringent standards" than those drafted by attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). However, it is not the role of the court to guess the nature of the claim(s) asserted. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A rule 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

In this case, none of the facts are in dispute. The issue is whether application of legislative amendments to parole procedures to plaintiff violates the ex post facto clause of the U.S. Constitution.

BACKGROUND OF THE CASE

Plaintiff was sentenced in 1978 for a crime other than first degree murder or drugs. At that time, M.C.L.A. § 791.234 provides for eligibility for parole consideration after 10 years, for prisoners serving a minimum term and prisoners like plaintiff who were serving "parolable" life sentences. Release of eligible inmates was strictly at the initiative of the parole board. M.C.L.A. § 791.235 provided for the parole board to bring an inmate before it at least one month "prior to the expiration of the minimum term, less good time" for review.

Plaintiff alleges that it was the policy of the defendant to set a new hearing date, "to be no more than 12 months from the minimum eligibility date or previous passover date." R791.7710(2)(c).

In 1982, the law was amended. The new law provided for an interview with one parole board member after four years imprisonment and then biennially thereafter until the prisoner was paroled, discharged, or deceased. However, he had no possibility of parole until after service of 10 calendar years of the sentence.

Plaintiff was interviewed March 15, 1984, by one member of the Board. Plaintiff contends he should have been interviewed by a quorum. Plaintiff was reinterviewed February 23, 1988, by one member, and December 4, 1990, by one member.

On September 22, 1992, M.C.L.A. § 791.234 was again amended. It provided for prisoners serving "parolable" life sentences who were sentenced for a crime committed before October 1, 1992, to be eligible for parole after 10 years. However, persons sentenced for crimes committed after October 1, 1992, were not eligible for parole until service of 15 years. The new amendments further provided that one member of the parole board shall interview the inmate at the conclusion of 10 calendar years, and then every 5 years thereafter. The interview schedule applied to all "parolable," non-drug, prisoners regardless of their sentencing date.

Plaintiff was advised of his next interview date of December, 1995.

ANALYSIS

In any Section 1983 action, the initial inquiry must focus on whether two essential elements are present: whether the conduct complained of was committed by a person acting under color of state law; and whether this conduct deprived the person of rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir.1988). Absent either element, a Section 1983 claim will not lie. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.1991), (citing Jones, supra).

Plaintiff claims that state created parole procedures enacted after his incarceration and which increase the time between parole hearings violates substantive due process and the ex post facto clause of the United States Constitution.

Several of defendant's arguments are unnecessary in light of the court's previous Order of Partial Dismissal. Plaintiff is not seeking money damages, and defendant would be immune from these and from costs, which plaintiff does seek. See, Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). Parole board members acting in their adjudicatory role have routinely been held entitled to absolute immunity from damages. See, Murray v. Miller, 891 F.2d 291 (6th Cir.1989), 1989 WL 149987, 1989 U.S.App. LEXIS 18799; Howard v. Hughes, 876 F.2d 894 (6th Cir.1989), 1989 WL 63330, 1989 U.S.App. LEXIS 8514 (Unpublished opinions holding that parole board members performing adjudicatory duties are absolutely immune from suits for damages under § 1983.). However, defendant in his individual capacity was already dismissed.

Defendant also submits that he is immune from suit according to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1983). Under that case, only where it can be shown that the state officer was acting ultra vires, that is, without any authority whatsoever or with a lack of delegated power, can the claim be pursued. Defendant claims that he was not acting ultra vires and the suit may not be predicated on state statutes which command discretionary duties. Defendant argues that the parole board statutes at issue grant parole board members broad discretion.

However, plaintiff is not claiming that defendant acted improperly under the current statute. The claim is that the statute itself violates the Constitution, and if so, then it cannot serve as a proper basis under which to delegate power to defendant. Whether the application of this law violates the ex post facto clause is the exact issue determined to remain by the court's order of partial dismissal.

VIOLATION OF EX POST FACTO CLAUSE

Plaintiff's claim is that his due process rights have been violated because the frequency of his hearings has increased his punishment. (Complaint at 9) Plaintiff alleges both a substantive due process claim (violation of ex post facto clause) and a procedural due process claim (no fair warning). (Complaint at 24(c))

To the extent that plaintiff has alleged a procedural due process claim, it must fail. The issue of due process rights in the context of parole decisions was addressed by the Supreme Court in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In that case, inmates had brought an action against the State Board of Parole alleging due process violations in the Board's consideration of the inmates' suitability for parole. The Court held that there was no federally protected right of a convicted individual to be conditionally released before the expiration of a valid sentence. Id. at 7, 99 S.Ct. at 2104.

The Court distinguished Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, where it had held that a parole revocation hearing must meet certain due process standards, noting that "parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires." Id. at 9, 99 S.Ct. at 2105. The Court also noted the differences in the nature of the decisions, one being a retrospective factual question in revocation and the other a prospective "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than singly what he has done." Id. at 9, 99 S.Ct. at 2105.

The Court held that a possibility of parole is no more than a mere hope and that such...