Michael v. Ghee, 3:01 CV 7436.

• Decision Date: 01 February 2006
• Docket Number: No. 3:01 CV 7436.,3:01 CV 7436.
• Citation: 411 F.Supp.2d 813
• Parties: Dennis MICHAEL, et al., Plaintiffs, v. Margarette GHEE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

411 F.Supp.2d 813

Dennis MICHAEL, et al., Plaintiffs, v. Margarette GHEE, et al., Defendants.

No. 3:01 CV 7436.

United States District Court, N.D. Ohio, Western Division.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Norman L. Sirak, Cleveland, OH, Peter J. Wagner, Toledo, OH, for Plaintiff Dennis Michael, A218318.

Anthony M. Hoepf, 259-692, Southern Ohio Correctional Facility, Lucasville, OH, Pro Se.

James Eric Holloway, Isaac, Brant, Ledman & Teetor, Philip A. King, Office of the Attorney General, State of Ohio, Todd R. Marti, Office of the Attorney General, State of Ohio, Corrections Litigation Section, Columbus, OH, for Defendant Margarette Ghee, Chairperson, Ohio Adult Parole Authority.

Frankie E. Lee, # 439809, Chillicothe Correctional Institution, Chillicothe, OH, Pro Se.

ORDER

CARR, District Judge.

These are claims under 42 U.S.C. § 1983 brought by inmates confined in Ohio penal institutions. Plaintiffs allege the state's parole system violates the U.S. and Ohio Constitutions, as well as state law.

Jurisdiction exists under 28 U.S.C. § 1331.

Pending are the State's motions to dismiss, for summary judgment, and to exclude certain of plaintiffs' exhibits.

For the following reasons, the State's motions to dismiss and for summary judgment are granted, and the motions to exclude shall be overruled as moot.¹

Background

Plaintiffs are "old law" inmates who were prosecuted under Ohio's former sentencing law, which expired in 1996. Doc. 140 at 6. The former sentencing law used indeterminate sentences: an inmate was given a minimum and a maximum sentence, such as five to twenty-five years. Id. at 10. These inmates were then subject to the Ohio Adult Parole Authority (APA), which determined when — between the minimum and maximum sentence — release was appropriate. Doc. 140 at 10-11. Inmates became eligible for parole on serving their minimum sentences, less credit for good behavior. Id. at 12-13.

In 1995, the Ohio legislature passed a new sentencing law. Under that law, the judge determines the exact sentence and parole is no longer available. Doc. 140 at 16. The law did not, however, retroactively eliminate parole for old law inmates or alter such inmates' parole eligibility dates.

In 1998, the APA adopted guidelines to channel the discretion of parole officials making release decisions for old law inmates. Doc. 39 at 10. The 1998 guidelines are similar to those used by the U.S. Parole Commission. Id. at 11. The new guidelines use two factors, outlined on a grid, to determine how long a prisoner should be incarcerated before parole. Id. The first factor is the offense behavior — the seriousness of the crime. Id. at 12. The second factor is the "risk of reoffense," which is based primarily on an inmate's prior criminal conduct and performance on probation and parole. Id. at 13.

"The presumptive amount of time an inmate should serve before parole is determined by finding the intersection between his offense category and the risk level on the grid." Doc. 39 at 13. Parole officials can, however, depart from the guidelines based on numerous factors, such as misconduct in prison and outstanding achievement in rehabilitative programming. Id. The guidelines do not enable the prison system to hold an inmate beyond the maximum sentence set by court. Id.² The new guidelines did not alter the inmates' parole eligibility dates. The APA applied, and continues to apply, the 1998 guidelines to inmates sentenced before the guidelines' adoption.

Plaintiffs challenge many APA practices, procedures, and proceedings. Plaintiffs claim the guidelines, practices, procedures, and proceedings deny them, or will in the future deny them, consideration for parole in a manner that violates: 1) due process; 2) equal protection; 3) the Ex Post Facto Clause of the Federal Constitution; and 4) various provisions of state law. Plaintiffs also assert that the APA improperly promulgated the 1998 sentencing guidelines and those guidelines as written and as applied violate state law.

The State claims its actions are legal and proper, stating: 1) the majority of plaintiffs' claims raise issues that only involve state law, and therefore cannot be challenged via § 1983; 2) retroactive application of the 1998 guidelines does not violate the Ex Post Facto Clause because the guidelines are not "laws;" 3) inmates do not have a liberty interest in parole implicating the Due Process Clause; and 4) parole procedures do not violate the Equal Protection Clause because the suggested reasons for treating inmates differently, based on the sentencing law applicable at the time, are rationally related to a legitimate government objective.

Discussion

A. Federal Constitutional Claims

I will address plaintiffs' fifth, sixth, and seventh causes of action first because they allege federal constitutional violations by their own terms and are therefore cognizable under § 1983. The sixth cause of action argues that the State's parole procedures violate due process. The seventh alleges that the State violates equal protection by treating old law inmates different from new law inmates. The fifth contends that retroactive application of the 1998 guidelines violates the Ex Post Facto Clause. None of these claims states a valid cause of action.

1. Sixth Cause of Action — Procedural Due Process

Procedural due process requirements only apply to deprivation of interests in liberty and property. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The U.S. Constitution does not require states to provide due process absent such interests. Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (stating that the purpose of process is to protect recognized liberty and property interests); Bd. of Regents, 408 U.S. at 569, 92 S.Ct. 2701. The threshold question, thus, is whether plaintiffs have a protected liberty or property interest. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).

The U.S. Constitution does not create a liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Because Ohio law makes parole discretionary, inmates do not have a liberty interest in parole under state law. Jago v. Van Curen, 454 U.S. 14, 20, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981); Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235-36 (6th Cir.1991); Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979); State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 125-26, 630 N.E.2d 696 (1994).³

If inmates do not have a liberty interest in parole itself, they cannot have a liberty interest in parole consideration or other aspects of parole procedures. Brandon v. Dist. of Columbia Bd. of Parole, 823 F.2d 644, 648 (D.C.Cir.1987); see also Olim, 461 U.S. at 250, 103 S.Ct. 1741 (state hearing requirements do not create a liberty interest absent an underlying liberty interest in the subject matter of the hearing); Banner v. Bradley, 28 F.3d 1213, 1994 WL 375895, at *3 (6th Cir.1984) (table) (because Tennessee did not create a liberty interest in parole, inmates had no liberty interest in receiving a proper parole hearing as required by a state statute).

Because plaintiffs have no liberty interest in parole, their procedural due process claim fails.⁴

2. Seventh Cause of Action — Equal Protection

Plaintiffs argue the State violates the Equal Protection Clause because it distinguishes between old and new law inmates by, inter alia, giving new law inmates fixed sentences and old law inmates indeterminate sentences. Other alleged equal protection violations against old law inmates include: 1) promulgation of Ohio Admin. Code § 5120-2-03, which requires inmates to serve consecutively any sentences imposed for crimes committed on parole; 2) adoption of the 1998 parole guidelines; and 3) consideration by parole officials of prison misconduct in setting release dates.

Old law inmates do not have a fundamental right to release at the end of their minimum sentence. The U.S. Supreme Court has held there "is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 6, 99 S.Ct. 2100; Jackson v. Jamrog, 411 F.3d 615, 618-19 (6th Cir. 2005). In addition, inmates are not a suspect class for Equal Protection Clause purposes. Jackson, 411 F.3d at 618-19. If state actions do not affect a suspect class or implicate a fundamental right, rational basis review applies. Id. Because the plaintiffs are not members of a suspect class and, as discussed above, parole does not implicate a fundamental right, the rational basis standard applies. Greenholtz, 442 U.S. at 6, 99 S.Ct. 2100; Jackson, 411 F.3d at 618-19.

Under rational basis review, courts will uphold governmental policy if there is a rational relationship between the state action and some legitimate government purpose. Midkiff v. Adams County Reg'l Water Dist., 409 F.3d 758, 770 (6th Cir.2005). Rational basis review is deferential: "the governmental policy at issue will be afforded a strong presumption of validity [...]" Id. "[U]nder rational basis review, a purported rational basis may be based on rational speculation unsupported by evidence or empirical data and need not have a foundation in the record." Id. (quotations and citations omitted). This standard places a "severe burden" on plaintiffs such that they "must negate all possible rational justifications" of the state action. Id. (quotations and citations omitted).

Here, rational bases exist for each of the State's actions at issue.

a. Different Treatment of Inmates Based on Date of Conviction

First, defendants note there are several rational reasons that could have motivated the Ohio's legislature to require old law inmates to continue to serve their indeterminate sentences subject to Parole Board determina...