“The separation of powers between a state trial judge and state parole board members is a matter of state law.” (citing Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000))
How later courts described this case
- “The separation of powers between a state trial judge and state parole board members is a matter of state law.” (citing Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000))
- “The district court properly found that the disputed state [parole] laws did not implicate federal separation of powers principles.” (citing Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957))
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charles Keith Wampler,
Plaintiff, Case No. 2:21-cv-5852
Vv. Judge Michael H. Watson
Alicia Handwerk, et al., Magistrate Judge Vascura
Defendants.
OPINION AND ORDER
Inmate Charles Wampler (“Plaintiff’) sues Alicia Handwerk (“Handwerk”),
Lance Pressley (“Pressley”), Kathleen Kovach (“Kovach”), Mare Houk (“Houk’),
Scott Widmer (“Widmer’), Steve Herron (“Herron”), and Lisa Hoying (“Hoying,”
collectively, “Defendants”) under 42 U.S.C. § 1983. Compl., ECF No. 1. The
Magistrate Judge screened Plaintiffs pro se Complaint under 28 U.S.C. § 1915A
and issued a Report and Recommendation (“R&R”) recommending the Court
dismiss the same. R&R, ECF No. 2. Plaintiff timely objected. Obj., ECF No. 3.
For the following reasons, the Court ADOPTS IN PART the R&R but
RECOMMITS this matter to the Magistrate Judge for an analysis of Plaintiff's
remaining claims.
I. FACTS
Defendants, who are all members of the Ohio Parole Board, denied
Plaintiff parole after a video parole hearing on September 20, 2021. Compl.,
ECF No. 1 at PAGEID # 19. Plaintiff alleges that Defendants denied him parole
partly because he maintained his innocence for the crime of conviction during the
hearing. /d. Plaintiff alleges the meeting minutes indeed reflect that Plaintiff was
denied parole because of the nature of his crime of conviction and because he
refused to accept responsibility for that crime. /d. at PAGEID # 20.
Plaintiff brings claims under the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and argues that the authority granted to the
Ohio Parole Board violates the separation-of-powers requirement in the United
States Constitution.
ll. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court reviews de
novo those portions of the R&R that Plaintiff specifically objected to. Fed. R. Civ.
P. 72(b)(3).
lll. ANALYSIS
The R&R recommended dismissing Plaintiffs separation-of-powers claim
because the separation-of-powers doctrine that applies to the federal
government is not mandatory for states. R&R 5, ECF No. 2. The R&R
recommended dismissing Plaintiffs due process claim because Plaintiff lacks a
protected liberty interest in parole. /d.
A. Separation of Powers
On objection, Plaintiff presses his argument that the function of the Ohio
Parole Board essentially usurps the role of the judiciary, in violation of the federal
Case No. 2:21-cv-5852 Page 2 of 5
Constitution’s separation-of-powers requirement. Obj. 2-3, ECF No. 3. Plaintiff
argues that the State of Ohio cannot act in contravention of the United States
Constitution; thus, any separation-of-powers violation by Ohio is a federal
violation. /d. at 3.
As Magistrate Judge Vascura explained, the federal Constitution requires
separation of powers within the federal government but does not require states to
follow that separation of powers within their own governments. See, e.g.,
Johnson v. Voinovich, 49 F. App’x 1, 3 (6th Cir. 2002) (“The district court properly
found that the disputed state [parole] laws did not implicate federal separation of
powers principles.” (citing Sweezy v. New Hampshire, 354 U.S. 234, 255
(1957))); Harris v. Wilson, No. 1:06 CV 2342, 2006 WL 3803410, at *5 (N.D. Ohio
Dec. 26, 2006) (“The separation of powers between a state trial judge and state
parole board members is a matter of state law.” (citing Austin v. Jackson, 213
F.3d 298, 302 (6th Cir. 2000))); Michael v. Ghee, 411 F. Supp. 2d 813, 823 (N.D.
Ohio 2006) (“The alleged violation of separation of powers doctrine relates to the
relationship between the branches of Ohio’s government: plaintiff's contention
being that the executive, through the APA, is taking over the job of the state
judiciary. Any alleged violation concerns only state law. Thus, § 1983 is
inapplicable.”), aff'd 498 F.3d 372, 376 (6th Cir. 2007). Because the federal
Constitution’s separation-of-powers requirement does not apply to state
governments, Ohio's scheme does not violate the federal Constitution’s
separation-of-powers doctrine. This objection is therefore OVERRULED.
Case No. 2:21-cv-5852 Page 3 of 5
B. Procedural Due Process
With respect to his Fourteenth Amendment procedural due process claim,
Plaintiff argues on objection that he is not asking the Court for a guarantee of
parole but rather asks the Court to prohibit the Ohio Parole Board from denying
parole without the due process guaranteed by the federal Constitution. Obj. □□□□
ECF No. 3. His claim is that the Ohio Parole Board denied him procedural due
process by: (1) considering the elements of Plaintiff's crime of conviction without
letting him present evidence of his innocence; (2) considering community
opposition to parole without letting Plaintiff face his accusers; and (3) violating
the separation of powers between the executive and judiciary. Compl., ECF
No.1 at PAGEID ## 15-16.
Those allegations, however, do not state a viable procedural due process
claim. “Procedural due process requirements only apply to deprivation of
interests in liberty and property.” Ghee, 411 F. Supp. 2d at 817 (citation omitted).
Neither the United States Constitution nor Ohio law create a liberty interest in
parole. /d. (citations omitted). “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.” /d. (citations omitted). Thus, as Magistrate Judge
Vascura correctly explained, R&R 4-5, ECF No. 2, the due process requirements
of the federal Constitution do not apply to Plaintiffs parole decision-making
process because Plaintiff lacks a liberty interest in parole. See also, e.g.,
Case No. 2:21-cv-5852 Page 4 of 5
Jergens v. Ohio Dept. of Rehab. & Corr. Adult Parole Auth., 492 F. App’x 567,
570 (6th Cir. 2012). Plaintiff's objection is therefore OVERRULED.
C. Remaining Claims
Upon review, it appears the R&R did not analyze Plaintiff's Fifth
Amendment, Eighth Amendment, or Fourteenth Amendment Equal Protection
claims. This aspect of Plaintiff's objection is therefore SUSTAINED, and the
Court RECOMMITS the matter to the Magistrate Judge to perform an initial
screen of those claims.
IV. CONCLUSION
The R&R is ADOPTED IN PART. The Court DISMISSES Plaintiff's
Separation of Powers claim and Procedural Due Process claim. The Court
RECOMNMITS the matter for additional review and issuance of an R&R consistent
with this Opinion and Order.
IT IS SO ORDERED. (| Mbt.
ICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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