Bailey v. Houk

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL K BAILEY,

Plaintiff,

Civil Action 2:21-cv-488

v. Judge James L. Graham

Magistrate Judge Kimberly A. Jolson

MARC HOUK, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court on Defendants Marc Houk’s and Kathleen Kovach’s Motion

to Dismiss for Failure to State a Claim (Doc. 6). For the following reasons, the Undersigned

RECOMMENDS Defendants’ Motion be GRANTED and this case be DISMISSED.

I. BACKGROUND

Plaintiff, a pro se prisoner currently incarcerated at Marion Correctional Institution, brings

this action against Ohio Parole Board (“OPB”) members Marc Houk and Kathleen Kovach. (Doc.

3). Plaintiff alleges Defendants relied on “substantive inaccuracies” during his parole hearings

and transmitted that inaccurate information to the Governor to support their recommendations that

he be denied executive clemency. (See generally Doc. 3). Plaintiff is currently serving a life

sentence for an aggravated murder committed in 1974. (Id., ¶ 7).

While Plaintiff does not dispute his conviction, he does dispute how OPB describes his

crime. (Id., ¶ 4, 5). He alleges OPB improperly relied on this mischaracterization to repeatedly

deny him parole and executive clemency. (Id.). Plaintiff learned about these alleged inaccuracies

in 2016. (Id., ¶ 22). “Two years before, the Ohio Supreme Court [] ruled that Ohio prisoners had

a right under Ohio law to a factually accurate parole record.” Bailey v. Wainwright, 951 F.3d 343,

345 (6th Cir.), cert. denied, 141 S. Ct. 316 (2020) (citing State ex rel. Keith v. Ohio Adult Parole

Auth., 24 N.E.3d 1132, 1137 (2014)). After this ruling, Plaintiff and several other Ohio prisoners,

“successfully petitioned OPB for their parole candidate information sheets, which include a

description of prisoner’s offense.” Id. After reviewing his parole candidate information sheet,

Plaintiff realized OPB’s description of his crime did not match his recollection. (Doc. 3 at ¶ 22).

Plaintiff reached out to OPB in an effort to have these alleged inaccuracies changed, and the two

corresponded for the next several months. (Id., ¶¶ 23–26).

While OPB eventually updated Plaintiff’s parole candidate information sheet, the

description of his crime remained the same. (Id., ¶¶ 26–27). At this point, Plaintiff attempted to

meet with an OPB representative to discuss his belief that the description of the crime was

inaccurate, and also filed a motion with the Lucas County Court of Common Pleas to correct his

parole record. (Id., ¶ 28). Both the motion and the request to meet with an OPB representative

were denied. (Id., ¶ 29). While Plaintiff appealed the Court’s decision, an Ohio appellate court

affirmed the Lucas County Court’s denial, and the Ohio Supreme Court denied his request for a

discretionary appeal. (Id., ¶ 30).

On April 18, 2018, Plaintiff filed a habeas petition in the United States District Court for

the Northern District of Ohio, asking the Court for “immediate release based on [] OPB’s ongoing

violation of constitutional law.” (Id., ¶ 31; see also Bailey v. Wainwright, No. 3:18 CV 881, 2018

U.S. Dist. LEXIS 73655 (N.D. Ohio May 1, 2018)). The district court dismissed Plaintiff’s

petition and his motion for reconsideration on the ground that he failed to state a claim for habeas

corpus relief. Wainwright, 2018 U.S. Dist. LEXIS 73655 at * 2. The Sixth Circuit affirmed the

District Court’s ruling, while noting that “[n]othing prevents [Plaintiff] from using § 1983 to raise

these or similar claims.” Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir.), cert. denied, 141 S.

Ct. 316 (2020).

The allegations in the instant action generally stem from Plaintiff’s ninth parole hearing

and executive clemency denial, both of which occurred in 2020. (Doc. 3 at ¶ 45). Specifically, he

states that Defendants violated his constitutional rights when they “used falsehoods they knew to

be false [in] each of those [proceedings][.]” (Id., ¶ 48). Plaintiff seeks both monetary and

injunctive relief. (Id., ¶¶ 50–54).

After being served with the Complaint on May 12, 2021, Defendants moved to dismiss.

(Docs. 5, 6). In so moving, Defendants argue Plaintiff fails to allege or explain how OPB’s

rationale for denying him parole in 2020 was based on substantive inaccuracies. (See generally

Doc. 6). Plaintiff filed his response on June 23, 2021 (Doc. 7), and Defendants filed their Reply

(Doc. 8) shortly thereafter. So Defendants’ Motion is ripe for review.

II. STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a

claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556

U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing

the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual

allegations as true. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added) (citing Twombly, 550

U.S. at 556). On the other hand, a complaint that consists of “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at

555; see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff

must give specific, well-pleaded facts, not just conclusory allegations). In other words, while

“detailed factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain

statement” rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 677–78 (quotation marks and citations omitted).

Further, although pro se complaints are to be construed liberally, Haines v. Kerner, 404

U.S. 519, 520 (1972), “basic pleading essentials” are still required, Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989). Stated differently, “[t]he requirement for liberal construction . . . does not

translate to ignoring a clear failure in the pleading to allege facts which set forth a cognizable

claim.” Kidd v. Neff, No. 1:12-cv-40, 2012 WL 4442526, at *2 (E.D. Tenn. Sept. 25, 2012

(dismissing pro se plaintiff's “incredibly vague” complaint), see also Smith v. Breen, No. 09-2770,

2010 WL 2557447, at *6 (W.D. Tenn. June 21, 2010) (collecting cases). Ultimately, to avoid

dismissal, a plaintiff’s complaint “must contain either direct or inferential allegations with respect

to all the material elements” of each claim. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902

(6th Cir. 2003) (citing Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)).

III. DISCUSSION

Defendants make two main arguments in support of dismissal; (1) Plaintiff’s official

capacity claims against Defendants are barred by sovereign immunity; and (2) Plaintiff’s

individual capacity claims fail because he has not sufficiently alleged or explained how OPB’s

rationale for denying him parole was based on substantive inaccuracies. (Doc. 6 at 4–6). The

Court addresses each argument in turn. Defendants also claim that parts of Plaintiff’s case are

barred by the statute of limitations. But, as explained, the Court does not need to resolve that issue.

A. Official Capacity Claims

Plaintiff seeks both monetary and injunctive relief from Defendants in their official and

individual capacities. (See Doc. 3 at ¶ 6 (naming Defendants in both their official and individual

capacities); id., ¶ 54 (seeking injunctive relief, in addition to $3,700,000 in compensatory damages

and $2,000,000 in punitive damages)). Defendants argue they are immune from lawsuits against

them in their official capacities. (Doc. 6 at 4). They are correct.

“‘[A] suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. As such, it is no different from a suit against

the State itself.’” Pullen v. Caldwell, No. 3:20-CV-198, 2021 WL 2952776, at *3 (S.D. Ohio July

14, 2021) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). Absent an express

waiver, the Eleventh Amendment to the United States Constitution bars suit against a State or its

agencies in federal court regardless of the nature of the relief sought. Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 58 (1996); see also Holson v. Good, 579 F. App’x 363, 364 (6th Cir. 2014)

(noting that the Eleventh Amendment bars “suits brought in federal court against a state and its

agencies”). Because the Adult Parole Authority “is undisputedly a state agency,” Holson, 579 F.

App’x at 364, and OPB is a section within the Adult Parole Authority, it too is a state agency

immune from relief. Mockbee v. Scioto Cty. Adult Parole Auth., No. 1:17-cv-254, 2017 WL

2222322, at *3 (S.D. Ohio May 22, 2017) (citing O.R.C. § 5149.02).

Neither the State of Ohio nor its agencies have waived their Eleventh Amendment

immunity for purposes of suits like this one, and the exceptions to immunity do not apply. See

Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Accordingly, the Eleventh Amendment bars

Plaintiff’s claims against Defendants in their official capacities, and it is RECOMMENDED those

claims be DISMISSED.

B. Individual Capacity Claims

Next, Defendants argue Plaintiff’s individual capacity claims fail because his Complaint

“contains no factual allegations which would permit the inference that he suffered any

compensable harm arising from the presence of any substantial errors in his parole records.” (Doc.

6 at 6). Additionally, they argue that “any substantive inaccuracies allegedly used . . . to deny

Plaintiff parole and/or clemency prior to February 2, 2019, are barred by the statute of limitations.”

(Doc. 8 at 2).

1. Failure to Plead

As detailed below, Plaintiff’s due process claims stemming from the recommendation to

deny clemency and his ninth parole hearing are timely. Accordingly, the Undersigned must now

evaluate whether Plaintiff’s claim is sufficiently plausible to survive dismissal. Defendants argue

it is not. (See generally Doc. 6). Plaintiff, conversely, argues that his Complaint is “replete with

factual allegations permitting the inference that he suffered compensable harm arising from the

presence of substantial factual misrepresentations in his parole records and that the two named

defendants personally engaged in causing some of that harm.” (Doc. 7 at 10).

To begin, the Court notes Plaintiff’s claim is procedural, not substantive. In the context of

parole, “substantive due process protects inmates from arbitrary denials of parole based on

impermissible criteria such as race, political beliefs or frivolous factors[.]” Mayrides v. Chaudhry,

43 F. App’x 743, 746 (6th Cir. 2002). Plaintiff makes no such allegation here. Instead, he argues

the procedures followed by the state were not constitutionally sufficient. (See generally Doc. 3).

Accordingly, Plaintiff’s claim is for an alleged violation of his right to procedural due process.

See Jergens v. Ohio Dep’t of Rehab. & Corr. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir.

2012) (recognizing that when an inmate brings a due process claim alleging false information was

used against him in a parole hearing, such a claim is procedural in nature); see also Jackson v.

Hudson, No. 2:18-CV-1319, 2019 WL 3521745, at *2 (S.D. Ohio Aug. 2, 2019) (same).

In evaluating whether a cognizable procedural due process claim exists, the Court “first

ask[s] whether there exists a liberty [] interest of which a person has been deprived, and if so[,]

[were] the procedures followed by the State [] constitutionally sufficient.” Swarthout v. Cooke, –

–– U.S. ––––, 131 S. Ct. 859, 861 (2011). As to the first requirement, it is well established that

Ohio prisoners have “no constitutional or statutory right to parole.” State ex rel. Keith v. Ohio

Adult Parole Auth., 24 N.E.3d 1132, 1137 (Ohio 2014). Still, prisoners can “raise certain

procedural challenges to the methods used to reach a parole decision.” Jackson, 2019 WL

3521745, at *3; see also Dotson v. Wilkinson, 329 F.3d 463, 472 (6th Cir. 2003) (“[W]here a

prisoner does not claim immediate entitlement to parole . . . but instead lodges a challenge to the

procedures used during the parole process as generally improper or improper as applied in his case

. . . such a challenge [is] cognizable under section 1983.”).

While Ohio prisoners have no liberty interest in parole itself, they do possess a liberty

interest in being free from “parole decisions . . . made in reliance on information [] the Parole

Board [knew][,] or ha[d] reason to know [was] inaccurate.” Kinney v. Mohr, No. 2:13-cv-1229,

2015 WL 1197812, at *4 (S.D. Ohio Mar. 16, 2015); see also State ex rel. Keith, 24 N.E.3d at

1137 (“[I]n any parole determination involving indeterminate sentencing, the [parole board] may

not rely on information that it knows or has reason to know is inaccurate.”). Accordingly, a

prisoner may have a cognizable procedural due process claim where they can show there were

“verifiable errors” in their parole file and that the parole board knowingly relied on these errors in

making its determination. Kinney, 2015 WL 1197812, at *4.

Plaintiff’s Complaint does not allege any specific “verifiable error” that Defendants

knowingly used to make their parole determination or their clemency recommendation. While

Plaintiff repeatedly alleges that Defendants “relied on falsehoods” and “lies” and “contradictory

evidence” (see generally Doc. 3), he does not specifically say what these “lies,” or “falsehoods”

were. At no point does Plaintiff state facts contradicting Defendants’ characterization of his

offense. These “‘[n]aked assertions’ are insufficient to state a plausible claim for relief.” Jackson,

2019 WL 3521745, at *3 (quoting Iqbal, 556 U.S. at 678) (finding plaintiff failed to state a

substantive due process claim where he only alleged “the criminal history contained in his record

was of an erroneous nature”); see also Jergens, 492 F. App’x at 571 n.5 (finding plaintiff’s

allegation the parole board relied on “false information [in his] criminal record and history” was

too vague to make out a claim); Solly v. Mausser, No. 2:15-cv-956, slip op. at 5–6 (S.D. Ohio Nov.

6, 2015) (dismissing a procedural due process claim when plaintiff “allege[d] [] Defendants relied

on false information in denying him a meaningful parole hearing” but did “not describe the nature

of the false information or how it was used against him”). At base, Plaintiff’s conclusory

allegations of unconstitutional conduct, without specific factual allegations, fail to state a claim

under § 1983, and the Undersigned RECOMMENDS they be DISMISSED.

While Plaintiff’s failure to comply with the basic pleading standards, as detailed above, is

sufficient grounds to grant Defendants’ Motion, the Court finds it prudent to highlight another

important detail regarding Plaintiff’s allegations. As Plaintiff himself represents, in both his ninth

parole hearing and the 2020 recommendation to deny clemency, OPB acknowledged the allegation

of inaccuracies in Plaintiff’s parole file and afforded him the opportunity to clarify those

allegations. (See Doc. 3 at ¶ 43 (showing that OPB’s recommendation to deny Plaintiff executive

clemency in 2020, specifically acknowledged that “the applicant makes notice that his parole file

contains inaccurate information,” and directed the Governor’s Office to “refer to the application

packet for additional information” on that claim); see also id., ¶ 46 (representing that at Plaintiff’s

ninth parole hearing, Defendant Houk acknowledged Plaintiff’s claim that the parole file contained

inaccurate information, and asked Plaintiff “to tell the Board what happened in his own words”)).

Clearly, Plaintiff was “allowed an opportunity to be heard and was provided a statement of the

reasons why parole was denied[,]” as the Constitution requires. Swarthout v. Cooke, 131 S.Ct.

859, 862 (2011). And, for this additional reason, Plaintiff’s pleadings are insufficient to allege a

cognizable procedural due process violation.

2. Statute of Limitations

Defendants also argue that Plaintiff has a timeliness problem. The allegations in Plaintiff’s

Complaint stem back as far as 2014. (See Doc. 3 at ¶¶ 50–51 (alleging Defendants relied on these

alleged “substantive inaccuracies” during Plaintiff’s 2014 parole hearing)). In Ohio, there is a

two-year statute of limitations on claims raised under § 1983. Browning v. Pendleton, 869 F.2d

989, 991 (6th Cir. 1989) (noting that Ohio’s two-year statute of limitations for personal injury

claims applies to § 1983 actions)). The statute of limitations begins to run when the plaintiff knew

or should have known of the injury forming the basis of his claims. Jefferson v. Mohr, No. 2:16-

CV-0369, 2017 WL 194350, at *3 (S.D. Ohio Jan. 17, 2017), report and recommendation adopted,

No. 2:16-CV-369, 2017 WL 2992506 (S.D. Ohio July 13, 2017).

Plaintiff filed the instant action on February 2, 2021. (See Doc. 1). And he acknowledges

that he became aware of these alleged inaccuracies in his parole candidate information sheet no

later than April 14, 2016. (See Doc. 7 at 4). So Defendants argue that claims before February 2,

2019, are time-barred. (See Doc. 6 at 2; Doc. 8 at 2).

Importantly, however, there is no dispute that Plaintiff’s claims relating to the January 14,

2020, recommendation to deny clemency (Doc. 3, at ¶ 45), and his ninth parole hearing on January

22, 2020 (id.), are timely. (See Doc 6 at 2). Further, Plaintiff argues that his entire case is timely

because he brought similar claims though a petition for habeas corpus, and the Sixth Circuit

“allow[ed] [him] to pursue this cause of action.” (Doc. 7 at 1 (citing Bailey v. Wainwright, 951 F.

343 (6th Cir. 2020))).

Yet, the Court does not need to resolve the timeliness question presented here. This is so

because Plaintiff has failed to state a claim upon which relief can be granted. Said differently,

Plaintiff has not stated a claim related to any of his parole denials, and that is enough reason to

dismiss the entire case.

IV. CONCLUSION

For the foregoing reasons, the Undersigned RECOMMENDS Defendants’ Motion (Doc.

6) be GRANTED and Plaintiff’s claims be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence, or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: October 18, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE