Dodson v. Mohr

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICARDO VERNAIR

DODSON,

:

Plaintiff,

Case No. 2:18-cv-908

Judge Sarah D. Morrison

v.

Magistrate Judge Sharon L.

Ovington

GARY C. MOHR, et al., :

Defendants.

OPINION AND ORDER

Plaintiff Ricardo Vernair Dodson, a state prison inmate proceeding without

the assistance of counsel, brought this action under 42 U.S.C. § 1983 against a

number of Defendants associated with the Ohio Department of Rehabilitation and

Corrections (“ODRC”) and the Ohio Adult Parole Authority (“OAPA” or “Parole

Board”). On February 19, 2021, Magistrate Judge Ovington issued a Report and

Recommendation recommending that summary judgment be entered in favor of

Defendants on Mr. Dodson’s sole remaining claim that, in July 2018, Defendants

violated his constitutional right to meaningful parole consideration. (ECF No. 122.)

Mr. Dodson filed his Objections to the Magistrate Judge’s Report and

Recommendation (Objs., ECF No. 127) and Defendants filed a Response (ECF No.

128). Mr. Dodson has since filed several supplemental motions, including a Motion

for Leave to Supplement the Summary Judgment Record (ECF No. 125), a Motion

for Leave to File Out of Time Reply and Objection to Defendants’ April 16, 2021

Response to Plaintiff’s Objections (ECF No. 130), and two motions related to a May

17, 2021 decision of the OAPA (ECF Nos. 131, 132).

For the reasons set forth below, the Court OVERRULES Mr. Dodson’s

objections (ECF No. 127) and ADOPTS and AFFIRMS the Magistrate Judge’s

Report and Recommendation (ECF No. 122).

I. BACKGROUND

In 1991, Mr. Dodson was convicted of rape and, in a separate case, of

kidnapping, rape, and attempted rape. (ECF No. 83-2, 1.) He was sentenced to “an

indeterminate sentence of 56 to 130 years.” (ECF No. 46, ¶ 12.) In 2000, and every

three years since, Mr. Dodson has appeared before the Parole Board. On each

occasion, he was denied parole.

Mr. Dodson’s sole remaining claim centers on his July 2018 parole

proceedings, and the resulting denial of parole. After the July 2018 proceedings, Mr.

Dodson received a copy of the Parole Board’s Decision and Minutes. (ECF No. 83-2,

PAGEID # 869–70.) That document reflects the Parole Board’s conclusions that:

There is substantial reason to believe that the inmate [(Mr. Dodson)]

will engage in further criminal conduct, or that the inmate will not

conform to such conditions of release as may be established under

[Ohio’s Administrative Code;]

There is substantial reason to believe that due to the serious nature of

the crime, the release of the inmate into society would create undue risk

to public safety, or that due to the serious nature of the crime, the

release of the inmate would not further the interest of justice or be

consistent with the welfare and security of society.

(Id., PAGEID # 869.) The Parole Board further reasoned:

Inmate Dodson has been assessed as having an elevated risk for

reoffending. Inmate Dodson’s case is aggravated by the case-specific

factors of violence, brutality, multiple occurrences, multiple victims, and

extensive victimization. Inmate Dodson has completed some relevant

programs to address his risk factors for reoffending; however, the

serious nature of the crimes and the aggravated circumstances in the

offenses do outweigh the efforts presented by inmate Dodson. The

aggravating circumstances in this case lead the Board to concluded that

release would demean the seriousness of the offenses and not further

the interest of justice. After weighing relevant factors, the Board does

not consider the Inmate suitable for release at this time and assesses a

three year continuance.

(Id.) The Parole Board’s Vote Sheet from that proceeding, which is not typically

provided to the subject inmate, reflects some additional details related to the

offense conduct, Mr. Dodson’s criminal history, behavior and programming while

incarcerated, release plan, offender change, general observations, and final action

and rationale. (Id., PAGEID # 871–73.)

II. STANDARD OF REVIEW

If a party objects within the allotted time to a report and recommendation,

the Court “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28

U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or recommendations made

by the magistrate judge.” 28 U.S.C. § 636(b)(1).

III. ANALYSIS

Mr. Dodson makes the following objections to the Magistrate Judge’s Report

and Recommendation. The objections are presented as written and as numbered:

A. The Magistrate Judge abused her discretion and erred as a matter of

law where she erroneously-improperly failed to correctly apply the

burden of proof standard as set forth in State ex rel. Keith v. Ohio

Adult Parole Authority, 141 Ohio St. 3d 375 (2014) on the claim that

Plaintiff kidnapped and raped a mental [sic] retarded female[.]

B. The Magistrate Judge abused her discretion and erred as a matter of

law when she relied on clearly erroneous findings of fact, used hearsay

statements, improperly applied the law, and used an erroneous legal

standard in determining summary judgment on the claim that Plaintiff

kidnapped and raped a mentally retarded white female[.]

C. The Magistrate Judge abused her discretion and erred as a matter of

law where she ignored and/or refused to apply clearly established state

and United States Supreme Court law in determining summary

judgment on the claim that Plaintiff caused the victim to become

pregnant with an African-American child resulting in placing the child

up for adoption[.]

E. The Magistrate Judge abused her discretion and erred as a matter of

law when she relied on clearly erroneous findings of fact, improperly

applied the law, and used an erroneous legal standard in her review of

Plaintiff’s claim that the Parole Board in 2015 and 2018 relied on false

information that community member(s) had previously objected to

release on parole[.]

F. The Magistrate Judge abused her discretion and erred as a matter of

law when she relied on clearly erroneous findings of fact in her review

of Plaintiff’s claim that his parole records falsely report that he was

convicted of domestic violence[.]

G. The Magistrate Judge abused her discretion and erred as a matter of

law when she relied on clearly erroneous findings of fact, improperly

applied the law, and used and [sic] erroneous legal standard in her

review of Plaintiff’s claim that the denial of parole based on factors of

violence, brutality was based on false information/reports[.]

H. The Magistrate Judge abused her discretion and erred as a matter of

law when she relied on clearly erroneous findings of fact, failed to

apply the correct legal standard, and disregarded the jury verdict in

her review of Plaintiff’s claim that the Parole Board relied on false

information to deny parole based on violence and brutality.

I. The Magistrate Judge abused her discretion and erred as a matter of

law where she intentionally failed to consider and analyze Plaintiff’s

claim Number #1 in his summary judgment arguing that he was

denied meaningful and fair parole consideration where Defendants

withheld and/or intentionally concealed, or failed to give Plaintiff

notice of all the grounds considered to deny parole[.]

K. The Magistrate Judge abused her discretion and erred as a matter of

law here she failed to determine whether the Parole Board has the

initial burden of proof to show with clear and convincing evidence that

the grounds used to deny parole are supported by sufficient evidence of

accuracy[.]

(Objs., generally.) The objections can be distilled into two general categories:

• The Magistrate Judge failed to consider Mr. Dodson’s argument that

Defendants violated his rights by “with[olding] and/or intentionally

conceal[ing]” the basis for their decision.

• The Magistrate Judge failed to properly apply the law set forth in

Keith and, thus, erred in finding that his parole record did not contain

substantive errors of fact, as to:

o Past community objection to Mr. Dodson’s release;

o Mr. Dodson’s criminal history;

o Mr. Dodson’s victim’s intellectual disability;

o Mr. Dodson’s victim’s pregnancy following the rape and the

paternity of the child born therefrom; and

o The nature of Mr. Dodson’s crimes.

Upon a de novo review of the record, the Court finds Mr. Dodson’s objections

unpersuasive. They are addressed, in turn, below.

A. Mr. Dodson was fully informed of the basis upon which he was

denied parole.

Mr. Dodson objects to the Magistrate Judge’s Report and Recommendation on

the basis that she “failed to consider and analyze his very first claim asserting:

Plaintiff was denied menaingful [sic] and fair parole consideration where

Defendants withheld/concealed the actual grounds and basis upon which parole was

denied.” (Objs., 17.) Mr. Dodson is correct that the Report and Recommendation

does not address this argument head on.1 But the Court’s work is not done. See 18

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

In his motions for summary judgment, Mr. Dodson asserts that the Decision

and Minutes Sheet, which he admits having properly received after his 2018 parole

hearing, does not reflect the content of the Vote Sheets, which he obtained in

discovery. Specifically, he finds the following differences:

1. Offender Change – Dodson has limited insight into the commission

of his crime.

2. Offender Change – Dodson lacks relevant programming.

3. Offender Change – Dodson lacks positive Offender Change.

4. Case-Specific Details (Prior Hrg. Notes—EWV) – Community

members have objected to release in the past.

5. Observations – Insufficient time served on Conviction, Lacks insight,

Lacks Programming.

6. Rationale – Dodson has not served sufficient time on his conviction

in the interest of justice.

(ECF Nos. 109 and 110, 7 (citing ECF No. 81, PAGEID # 817).) Mr. Dodson further

argues that even the Minutes Sheets did not disclose the following “ground[] for

denial of parole”:

Plaintiff kidnapped and raped a mentally retarded white female causing

her to become pregnant with an African-American child resulting in the

victim placing the child up for adoption.

1 Curiously, Defendants’ response to Mr. Dodson’s motions for summary

judgment is also silent on this argument. Their failure to respond does not,

however, foreclose the matter. Cf. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611,

630 (6th Cir. 2014) (“[E]ven where a motion for summary judgment is unopposed, a

district court must review carefully the portions of the record submitted by the

moving party to determine whether a genuine dispute of material fact exists.”).

(Id.) In Mr. Dodson’s view,

Defendants hid this ground under the ruse of extensive victimization in

the Decision and Minutes form. Plaintiff would not have been aware of

the meaning except for receiving his parole file. Defendants did not

provide actual meaning. . . . They simply withheld the information and

placed that information in parole record which they knew inmates won’t

have access to.

(Id., 7–8.)

The record belies Mr. Dodson’s allegations. “Due process in parole

proceedings is satisfied as long as the procedure used affords the inmate an

opportunity to be heard, and, if parole is denied, the parole board informs the

inmate of the basis upon which it denied parole.” Swihart v. Wilkinson, 209 F. App’x

456, 459 (6th Cir. 2006) (citing Greenholtz v. Inmates of the Neb. Penal and Corr.

Complex, 442 U.S. 1, 19 (1979)). As to the grounds for denial of parole purportedly

withheld from the Minutes Sheet, but which appear in the Vote Sheet, they are

captured in the Vote Sheet’s summary conclusion, which is reproduced near-

verbatim on the Minutes Sheet:

Inmate Dodson has been assessed as having an Elevated Risk for

reoffending. Inmate Dodson’s case is aggravated by the case-specific

factors of violence, brutality, multiple occurrences, multiple victims, and

extensive victimization. In the Interest of Justice, inmate Dodson has

not served sufficient time on his convictions. Inmate Dodson has

completed some relevant programs to address his risk factors for re-

offending; However, the Serious Nature of the Crimes and the

aggravating circumstances in the offenses do outweigh the efforts

presented by inmate Dodson. The aggravating circumstances in this

case lead the Board to conclude that release would demean the

seriousness of the offenses and not further the interest of justice. After

weighing relevant factors, the board does not consider the Inmate

suitable for release at this time and assesses a three year continuance.

(ECF No. 81-6, PAGEID # 817. See also ECF No. 81-6, PAGEID # 813.) As to the

grounds for denial of parole that were purportedly obfuscated, the Court has no

basis—let alone a reasonable one—to infer that Defendants were anything short of

fully candid with Mr. Dodson as to the reasons for their denial.2 Mr. Dodson was

informed of the basis upon which he was denied parole, in satisfaction of his due

process rights.

Mr. Dodson’s objection related to the alleged failure of the Parole Board to

inform him of the reasons for denial is OVERRULED.

B. The Magistrate Judge accurately stated and appropriately

applied the Keith standard.

Mr. Dodson next takes issue with the Magistrate Judge’s application of the

law set forth in Keith. The Court finds no error in the Magistrate Judge’s statement

and application of the law. As the Magistrate Judge explained:

A prisoner has no federal constitutional right to parole. See [Greenholtz,

442 U.S. at 7] (“[t]here is no constitutional or inherent right of a

convicted person to be conditionally released before the expiration of a

valid sentence.”). “‘[T]he [S]tate of Ohio has not created a liberty interest

in parole eligibility, as it has a completely discretionary parole system.’”

Jergens v. Ohio Dep’t of Rehab. & Corr. Adult Parole Auth., 492 F. App’x

567, 570 (6th Cir. 2012) (quoting Michael v. Ghee, 498 F.3d 372, 378 (6th

Cir. 2007)). But Ohio law “create[s] a minimal due-process expectation

that the information [in an inmate’s parole file] will actually and

accurately pertain to the prisoner whose parole is being considered.”

[Keith, 141 Ohio St.3d at 381]; see Jergens, 492 F. App’x at 570. Thus,

“even though Ohio prisoners have no liberty interest in parole itself,

they do possess a liberty interest in being free from ‘parole decisions . . .

2 To the extent that Mr. Dodson argues he was not informed that the Parole

Board was aware of, or considered, his victim’s intellectual disability, subsequent

pregnancy, or release of the child for adoption in pre-2018 parole hearings, the

argument is not properly before the Court. Mr. Dodson’s Fourteenth Amendment

claims concerning the Parole Board’s pre-2018 decisions were dismissed as

incapable of redress. (See ECF No. 31, 18. See also ECF No. 39, 4.)

made in reliance on information that the Parole Board [knew was]

inaccurate or ha[d] reason to know [was] inaccurate.’” Jackson v.

Hudson, No. 2:18-cv-1319, 2019 WL 3521745, [at] *3 (S.D. Ohio Aug. 2,

2019) (Watson, J.) (quoting Kinney v. Mohr, No. 2:13cv1229, 2015 WL

1197812, at *4 (S.D. Ohio 2015) (Marbley, J.)).

What controls determination of whether the parole board or the Ohio

Adult Parole Authority (OAPA) relied on information it knew, or had

reason to know, was inaccurate? Keith is instructive. The Ohio Supreme

Court explained in Keith that the parole board was not required to

“conduct an extensive investigation on the information it reviews for

every prisoner to ensure accuracy . . .” and it was not required to “credit

every unsupported allegation by a prisoner that the information is

inaccurate.” 141 Ohio St.3d at 380. “But where there are credible

allegations, supported by evidence, that the materials relied on at a

parole hearing were substantively inaccurate, the OAPA has an

obligation to investigate and correct any significant errors in the record

of the prisoner.” Id. The Ohio Supreme Court observed that Keith

presented more than mere allegations; he “made a showing that there

may be substantive errors in his record that may influence the OAPA’s

consideration of his parole.” Id. at 381 (emphasis added). The

substantive error in Keith’s parole record indicated he had been paroled

eight times when he had been paroled only six times. The remedy: an

Order requiring the OAPA to “conduct an investigation into Keith’s

allegations and correct any substantive errors in the record it uses to

consider him for parole.” Id. at 381 (emphasis added).

In a more recent parole-due-process case, the Ohio Supreme Court

provided insight into what amounts to “substantive error”: “The

question is whether the alleged error, supported by evidence, may have

affected the outcome of the parole hearing.” State ex rel. Cobb v. Ohio

Adult Parole Auth., 155 Ohio St.3d 527, 530 (2018). “‘[S]ubstantive error’

in this context to mean ‘substantial error,’ or ‘an error that affects a

party’s substantive rights or the outcome of the case and, as a

consequence, may require reversal on appeal.’” Al’Shahid v. Hudson,

2:18cv33, 2020 WL 469876, at *5 (S.D. Ohio 2020) (Deavers, M.J.)

(quoting Cobb, 155 Ohio St.3d at 529).

In the end:

The OAPA has and retains wide-ranging discretion in

parole matters. A prisoner lacks any constitutional or

statutory right to parole. However, having established a

parole system, and having put in place statutory and

regulatory language requiring the OAPA to consider

relevant information regarding a prisoner it is considering

for parole, the state has created a minimal due-process

expectation that the information will actually and

accurately pertain to the prisoner whose parole is being

considered.

Keith, 141 Ohio St.3d at 381.

(ECF No. 122, 6–8.)

Applying Keith, the Magistrate Judge concluded that Mr. Dodson had not

made “credible allegations, supported by evidence,” that any information in his

parole record was inaccurate, or that Defendants knew or should have known that

any such information was inaccurate. (See, e.g., id., 11 (“Dodson does not otherwise

rely on affirmative or probative evidence that indicate Defendants knew, or

reasonably should have known, his victim [did not have] an intellectual disability.”)

(emphasis added); 12 (“[Dodson] fails to point to evidence within or outside his

parole records sufficient to either cast doubt on his victim’s statements or create a

reasonable inference that Defendants knew, or should have known, her information

was false.”) (emphasis added); 14 (“Dodson has not . . . produced evidence upon

which a jury could reasonably conclude that in 2018, Defendants denied him parole

in 2018 based on information they knew, or should have known, was false.”)

(emphasis added); 14 (“[T]here is no evidentiary support for Dodson’[s] assertion

that the 2018 Parole Board relied on false information concerning a purported

domestic-violence conviction.”) (emphasis added); 15 (“Dodson . . . has not presented

affirmative evidence tending to show that the Parole Board relied on false facts

when it considered the case-specific factors of violence, brutality, and extensive

victimization of the crimes he committed.”) (emphasis added); 16 (“Dodson has not

presented any . . . evidence indicating that his parole records contain false

information about his termination from the Comprehensive Sex Offender

Program.”) (emphasis added).)

Mr. Dodson’s objections center on the Magistrate Judge’s insistence that the

alleged inaccuracies in his parole record be backed by proof. The objection is without

merit. The Ohio Supreme Court was clear that the OAPA need not “conduct an

extensive investigation on the information it reviews for every prisoner to ensure

accuracy,” or “credit every unsupported allegation by a prisoner that the

information is correct.” Keith, 141 Ohio St.3d at 380. Instead, “where there are

credible allegations, supported by evidence, that the materials relied on at a parole

hearing were substantively inaccurate, the OAPA has an obligation to investigate

and correct any significant errors in the record of the prisoner.” Id. As the

Magistrate Judge correctly concluded, Mr. Dodson failed to put forth credible

allegations, supported by evidence, of inaccuracies in his parole record.

Mr. Dodson’s disagreement with the Magistrate Judge as to the weight of the

“evidence” he does proffer—including the absence of a conviction under Ohio Rev.

Code §§ 2907.02(A)(1)(c), 2903.11, or 2903.13(A), an affidavit stating his own belief

that he did not impregnate his victim, a letter indicating the birthdate of the child

born therefrom, and a thickheaded soliloquy demonstrating a failure to

acknowledge that his crimes were indeed violent and brutal3—finds no purchase

3 The language of Mr. Dodson’s argument is jarring, and warrants

reproduction here for context:

with the Court. (See Objs., generally. See also ECF No. 125.) His further concern

that the law, as applied by the Magistrate Judge, would permit the OAPA to litter

prisoners’ parole records with inaccurate information is misplaced. (See Objs., 18.

See also ECF No. 130-2, 4.) Keith leaves no room for such misconduct. Instead, it

imposes an affirmative obligation on the OAPA to exclude known inaccuracies from

consideration.

Mr. Dodson’s objections related to the statement and application of Keith are

OVERRULED.

IV. CONCLUSION

Based upon the foregoing, and pursuant to Rule 72(b) of the Federal Rules of

Civil Procedure, after a de novo determination of the record, this Court concludes

that Mr. Dodson’s objections to the Report and Recommendation are without merit.

The Court therefore OVERRULES Mr. Dodson’s objections and ADOPTS and

AFFIRMS the Magistrate Judge’s Report and Recommendation. Accordingly:

• Defendants’ Motion for Summary Judgment (ECF No. 83) is

GRANTED;

• Mr. Dodson’s Motions for Summary Judgment (ECF Nos. 109, 110) are

DENIED;

The Magistrate used as an example, the claim that plaintiff was talking

about killing the victim (how is this violent or brutal?); started to throw

victim out of window but did not (how is this brutal?); forced vaginal

intercourse (how is this violent and brutal?) While plaintiff admit that

rape (forced intercourse) is terrible and should have never happened to

the victim for which I trully apologize, however, I did not beat her, I did

not cause any physical harm, no hospital stay, I forced intercourse on

her.

(Objs., 14.)

• Mr. Dodson’s Motion Requesting Leave to Submit and Argue in his

Motion for Summary Judgment New Evidence Discovered in

Defendants’ Summary Judgment Motion (ECF No. 103) is GRANTED

to the extent his arguments have been considered, and otherwise

DENIED;

• Mr. Dodson’s Motion to Seek Further Discovery Pursuant to Fed. R.

Civ. P 56 (ECF No. 106) is DENIED; and

• Mr. Dodson’s Objection to and Request to Strike Defendants’ Response

in Opposition to his Motion for Summary Judgment (ECF No. 119) is

OVERRULED and DENIED as moot.

Further, as to the motions filed after publication of the Report and

Recommendation:

• Mr. Dodson’s Motion for Leave to Supplement the Summary Judgment

Record Pursuant to Fed. R. Civ. P. 56(e)(1) (ECF No. 125) is

GRANTED to the extent his arguments have been considered, and

otherwise DENIED;

• Mr. Dodson’s Motion for Leave to File Out of Time Reply and Objection

to Defendants’ April 16, 2021 Response to Plaintiff’s Objection to the

Magistrate Judge’s Report and Recommendation (ECF No. 130) is

GRANTED to the extent his arguments have been considered, and

otherwise DENIED; and

• Mr. Dodson’s motions pertaining to the May 17, 2021 decision of the

OAPA (ECF Nos. 131, 132) are DENIED.

The Clerk is DIRECTED to ENTER JUDGMENT in accordance with this

Opinion and Order and TERMINATE this case from the docket of the United

States District Court for the Southern District of Ohio.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE