# Wampler v. Handwerk

> District Court, S.D. Ohio · December 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10381449

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10381449

## How later opinions describe it (automated extraction)

- finding certain claims challenging procedures for parole consideration, that did not depend on the innocence of the plaintiff, were cognizable under § 1983
- holding the Eighth Amendment prohibits mandatory life imprisonment without the possibility of parole for juveniles

## Opinion text

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
Magistrate Judge Vascura performed an initial screen of this pro se,
prisoner civil rights case under 28 U.S.C. § 1915A and issued a Report and
Recommendation (“R&R”) recommending the Court dismiss Plaintiffs Complaint
in its entirety. R&R, ECF No. 2. Plaintiff timely objected, Obj., ECF No. 3, and
the Court performed a de novo review pursuant to Federal Rule of Civil
Procedure 72(b)(3). The Court adopted the R&R insofar as it recommended
dismissal of Plaintiff's separation-of-powers claim and procedural due process
claim. Op. and Order, ECF No. 11. However, the Court determined that
Plaintiffs Complaint also raised claims under the Fifth and Eighth Amendments,
via the Fourteenth Amendment, and a claim under the Fourteenth Amendment's
Equal Protection clause. /d. The Court therefore recommitted the matter to the
magistrate judge for an initial screen of those claims.
Magistrate Judge Vascura has performed that screen and again
recommends dismissal. R&R, ECF No. 12. Plaintiff timely objected, Obj. 13, and

the State responded to the objection as an interested party, Resp., ECF No. 14.
Plaintiff replied. Reply, ECF No. 15. The Court once more determines de novo
the portions of the second R&R that were properly objected to. See Fed. R. Civ.
P. 72(b)(3).
Before turning to the merits of each claim, the Court addresses some
statements Plaintiff makes in his objections. This Court agrees that many
inmates have legitimate issues, relief for which require pursuit in court. Plaintiff is
also correct that inmates do not lose all constitutional rights upon conviction. It is
axiomatic that federal courts must ensure that every plaintiff—regardless of their
status—receives careful, impartial consideration. On the other hand, courts are
duty-bound to follow the law. In this case, the law does not support the claims
Plaintiff pursues, and the Court must dismiss the same. Each claim is addressed
in turn.
A. Fifth Amendment
The Court begins with Plaintiffs Fifth Amendment claim. As an initial
matter, Plaintiff mischaracterizes the R&R as concluding that an inmate loses the
protection against self-incrimination upon conviction. The R&R contains no such
conclusion. Rather, it recommends that the Fifth Amendment is not implicated in
parole hearings unless, at a minimum, the failure to admit guilt automatically
makes an inmate ineligible for parole. In other words, the R&R concludes that
the pressure to incriminate one’s self is not sufficiently compulsive, for purposes
of the Fifth Amendment, unless eligibility for parole at least requires such self-
Case No. 2:21-cv-5852 Page 2 of 10

incrimination; self-incrimination that merely enhances an inmate’s chances of
receiving parole is not sufficiently compulsory to implicate the Fifth Amendment.
Upon de novo review, the Court agrees with the R&R’s conclusion on this
issue. The Fifth Amendment does not protect against all self-incrimination; it
protects against only compelled self-incrimination. McKune v. Lile, 536 U.S. 24,
35-36 (2002) (Kennedy, J.) (plurality opinion) (citations omitted). Read together,
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) and the plurality
opinion in McKune suggest that, so long as parole is not automatically denied if

an inmate refuses to admit guilt, self-incrimination during a parole hearing is not
sufficiently “compulsory” as to rise to a Fifth Amendment violation. Cf Woodard,
523 U.S. at 288 (“[T]his pressure to speak in the hope of improving his chance of
being granted clemency does not make the interview compelled.”); McKune, 536
U.S. at 44 (“States may award good-time credits and early parole for inmates
who accept responsibility because silence in these circumstances does not
automatically mean the parole board, which considers other factors as well, will
deny them parole.” (citation omitted)).
The Sixth Circuit recently held that it would amount to compulsion to
render an inmate automatically ineligible for parole upon that inmate’s refusal to
participate in a sex-offender treatment program that required the admission of
guilt. Harper v. Arkesteyn, No. 19-1928, 2020 WL 4877518, at *4 (6th Cir. Apr.
28, 2020). The Sixth Circuit has never held, however, that admission of guilt that

Case No. 2:21-cv-5852 Page 3 of 10

merely enhances one’s chances of obtaining parole is sufficiently “compulsory” to
implicate the Fifth Amendment.
Here, Plaintiff does not allege that he was automatically rendered ineligible
for parole due to his refusal to admit guilt at the parole hearing; rather, he alleges
only that his refusal to accept responsibility for the crime of conviction was one of
the reasons parole was denied. Indeed, Plaintiffs Complaint expressly alleges
that parole was also denied, in part, due to the severity of the crime of conviction
and community opposition to release. See, e.g., Compl. J] 1, 4-6, ECF No. 1.
Accordingly, Woodard and McKune suggest that Plaintiff was not “compelled” to
incriminate himself, and the Court so holds. This is also consistent with pre-
McKune Sixth Circuit law. See Hawkins v. Morse, No. 98-2062, 1999 WL
1023780, at *2 (6th Cir. Nov. 4, 1999) (‘“[I]t cannot be said that the alleged
pressure to admit that he committed the crime for which he is incarcerated in
order to improve his chances for parole forces Hawkins to incriminate himself in
violation of the Fifth Amendment.”). It is also consistent with the approaches by
at least the First, Third, Tenth, and D.C. Circuits. See Redmond v. Fulwood, 859
F.3d 11, 15 (D.C. Cir. 2017) (“[NJo First or Fifth Amendment law prohibited [the
parole commission chairman's] consideration of [plaintiff's] refusal to
acknowledge culpability” when denying [plaintiff's] request for reconsideration of
parole denial); Roman v. DiGuglielmo, 675 F.3d 204, 214 (3rd Cir. 2012)
(‘[Plaintiff's] Fifth Amendment claim [on habeas] fails because the consequence
he faces—the repeat denial of parole for refusing to participate in the sex
Case No. 2:21-cv-5852 Page 4 of 10

offender treatment program—does not rise to the level of compulsion necessary
to violate the Fifth Amendment.”); Carroll v. Simmons, 89 F. App’x 658, 662 (10th
Cir. 2004) (rejecting Fifth Amendment claim even where prisoner's refusal to
admit guilt, and subsequent inability to participate in rehabilitation program,
resulted in ineligibility for parole); Ainsworth v. Stanley, 317 F.3d 1, 4-6 (1st Cir.
2002) (holding, post McKune, that reduced likelihood of parole for refusing to
participate in program requiring admission of guilt does not constitute compelled
self-incrimination).
At bottom, although Plaintiff surely faced a difficult dilemma during his
parole hearing, he was not compelled to incriminate himself, and his Fifth
Amendment claim fails.
B. Eighth Amendment
Regarding his Eighth Amendment claim, Plaintiffs Complaint states, “the
Ohio Parole Board punished [Plaintiff] for not claiming guilt for a crime of which
he is not guilty.” Compl. 3, ECF No. 1. He further explains his theory: an
“innocent person’ is cruelly punished when he is forced to choose between either
(1) falsely confessing to the crime of conviction in the hopes of receiving parole
or (2) remaining steadfast in his assertion of innocence, knowing parole will be
denied. Compl. 3, ECF No. 1.
Magistrate Judge Vascura recommends dismissing this claim as barred by
Heck v. Humphrey, 512 U.S. 477 (1994). R&R 7, ECF No. 12.

Case No. 2:21-cv-5852 Page 5 of 10

Plaintiff objects that Heck does not apply because he does not seek
damages and does not ask the Court to nullify his conviction. Obj. 4-5, ECF No.
13.
Upon de novo review, the Court agrees that Plaintiff lacks standing to
assert this claim unless he is innocent of the crimes for which he has been
convicted. As noted above, Plaintiff's Eighth Amendment claim rests on the
premise that it is cruel and unusual to punish an innocent person who maintains
their innocence by denying that person parole. Unless Plaintiff is himself
innocent, he does not have the Article III standing to litigate such a theory. And
this Court cannot presume Plaintiffs innocence unless and until his conviction is
overturned. Because Plaintiff cannot even advance this theory unless he is
innocent, the claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).'
To the extent Plaintiff's Eighth Amendment claim can be re-framed to not
necessarily rest on his status as an innocent person, it is not barred by Heck.
That is, Heck would not bar an Eighth Amendment claim that it is cruel and
unusual to punish an inmate (regardless of guilt) for refusing to accept guilt at a
parole hearing by denying parole. Success on such a claim would not guarantee
a speedier release; it would merely guarantee that the parole board could not

1 The Court notes for completeness that neither Graham v. Florida, 560 U.S. 48, 74-75
(2010) (holding the Eighth Amendment prohibits a sentence of life without parole for
juveniles convicted of non-homicide offenses) nor Miller v. Alabama, 567 U.S. 460, 479
(2012) (holding the Eighth Amendment prohibits mandatory life imprisonment without
the possibility of parole for juveniles) are relevant to this case. Plaintiff was convicted of
aggravated murder and has the possibility of parole.
Case No. 2:21-cv-5852 Page 6 of 10

deny Plaintiff parole as punishment for his refusal to admit his guilt during a
parole hearing, even if he is, in fact, guilty. See Hill v. Snyder, 878 F.3d 193,
209-10 (6th Cir. 2017) (finding certain claims challenging procedures for parole
consideration, that did not depend on the innocence of the plaintiff, were
cognizable under § 1983).
However, the Court holds as a matter of law that, even if the Eighth
Amendment applies in the context of discretionary parole decisions,” it is not
cruel and unusual to condition parole on a convict’s willingness to accept
responsibility for the crime of conviction. “The Eighth Amendment's prohibition of
cruel and unusual punishment guarantees individuals the right not to be
subjected to excessive sanctions.” Miller, 567 U.S. at 469 (internal quotation
marks and citation omitted). The concept has evolved from prohibiting merely
barbaric modes of punishment to prohibiting sentences that are disproportionate
to the crime and offender. Graham, 560 U.S. at 59.

2 The Sixth Circuit appears to conclude that the denial of parole does not itself implicate
the Eighth Amendment, but parole procedures may. Compare, e.g., Carnes v. Engler,
No. 03-1212, 2003 WL 22177118, at *3 (6th Cir. Sept. 19, 2003) (“[T]he denial of the
plaintiffs’ parole does not implicate the Eighth Amendment's prohibition against cruel
and unusual punishment. The Eighth Amendment prohibits conduct that involves the
unnecessary and wanton infliction of pain. The denial of parole clearly does not fall
under this umbrella.” (citation omitted)); and Kordenbrock v. Brown, 469 F. App’x 434,
435 (6th Cir. 2012) (holding denial of parole did not implicate Eighth Amendment where
inmate would end up serving a sentence within the statutory maximum); with Weshe v.
Combs, 763 F.3d 500, 505-06 (6th Cir. 2014) (remanding for consideration of the
plaintiffs claim that a state's parole procedures violated the Eighth Amendment, in light
of Graham v. Florida). Plaintiffs re-framed claim here would arguably implicate the
Eighth Amendment.
Case No. 2:21-cv-5852 Page 7 of 10

It is neither barbaric nor disproportionate to require someone convicted of

a crime to accept responsibility for that crime as a condition to returning into
society. Plaintiff cites no case that has ever held to the contrary, and the Court's
independent research reveals none. In fact, the most analogous caselaw
supports the Court’s conclusion. E.g., Robins v. Wetzel, No. 22-1006, 2022 WL
4533850, at *2 (3rd Cir. Sept. 28, 2022) (“[R]equiring an admission of guilt, even
falsely, did not deprive [the plaintiff] of the minimal civilized measure of life’s
necessities.” (internal quotation marks and citation omitted)); Kikuchi v. Bauman,
No. 20-1593, 2020 WL 7587156, at *2 (6th Cir. Oct. 22, 2020) (“[Alny directive by
the parole board that Kikuchi participate in the Sex Offender Treatment Program
as a prerequisite to consideration of parole did not result in an equal protection
violation, a due process violation, a Fifth Amendment violation, or an Eighth
Amendment violation of Kikuchi’s constitutional rights.” (citation omitted)), cert.
denied, 141 S. Ct. 2679 (2021); Alexander v. Vittitow, No. 17-1075, 2017 WL
7050641, at *5 (6th Cir. Nov. 9, 2017) (holding that where a state’s parole system
does not create a liberty interest in parole, it is not cruel and unusual to impose a
finding of misconduct, even if it may prevent parole).
Accordingly, Plaintiff's Eighth Amendment claim, as framed, fails for lack of
standing. Any alternative framing of the claim fails as a matter of law.
C. Fourteenth Amendment: Equal Protection
The Magistrate Judge acknowledged that Plaintiff purported to raise a
Fourteenth Amendment Equal Protection claim but found his theory was more
Case No. 2:21-cv-5852 Page 8 of 10

appropriately addressed as a substantive due process claim. R&R 7-8, ECF No.
12. She recommended dismissing the substantive due process claim. /d.
Plaintiff objects that “[t]his is clearly an equal protection issue and should
be addressed as such.” Obj. 5-6, ECF No. 13. The remainder of his objection
argues that the discretionary power of the Parole Board inherently violates the
Equal Protection Clause. /d.
Upon de novo review, the Court agrees with the Magistrate Judge.
Despite the label Plaintiff puts on his claim, he has not alleged that he was
denied a fundamental right, is a member of a suspect class, or that anyone
otherwise similarly situated was granted parole because they admitted guilt (let
alone that there is no rational basis for treating differently, for parole purposes,
those inmates who accept responsibility for their crime of conviction and those
who do not). He has thus not stated a viable claim under the Equal Protection
Clause. Cf. Robins, 2022 WL 4533850 at *2 (rejecting similar Equal Protection
claim); Mann v. Mohr, 802 F. App’x 871, 875 (6th Cir. 2020) (upholding dismissal
of inmate’s Equal Protection claim vis-a-vis parole under rational basis test);
Marshall v. Mausser, No. 1:13-cv-847, 2015 WL 105032, at *6 (S.D. Ohio Jan. 7,
2015), R&R adopted by 2015 WL 457302. Accordingly, to the extent Plaintiff
brings his claim under the Equal Protection Clause, it fails.
Moreover, as the Magistrate Judge noted, where, as here, the theory is
that discretionary power inherently leads to arbitrary and capricious decision-
making, the claim is more appropriately analyzed as a claim for violation of
Case No. 2:21-cv-5852 Page 9 of 10

substantive due process. And the R&R correctly notes that “although other
circuits have found that arbitrary parole denials may . . . violate a plaintiffs
substantive due process rights” notwithstanding the lack of a protected interest in
parole, the Sixth Circuit has not adopted that reasoning. Sturgis v. Mich. Parole
Bd., No. 18-1554, 2019 WL 2156429, at *1 (6th Cir. Feb. 1, 2019) (citations
omitted). Nor is the Court aware of any caselaw holding that a discretionary
parole system, itself, shocks the conscience. Therefore, to the extent Plaintiff
chailenges the parole board’s discretionary power under the Substantive Due
Process Clause, this claim also fails.°
D. Conclusion
For the above reasons, the Court DISMISSES Plaintiff's Complaint.
The Clerk shall enter judgment for Defendant and terminate the case.
IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

3 The Sixth Circuit has left open the possibility that arbitrary denials of parole based on
impermissible criteria amount to a substantive due process violation, “even where a
prisoner may not have a protected liberty interest[.]’ C.f, e.g., Mayrides v. Chaudhry,
43 F. App’x 743, 746 (6th Cir. 2002). Thus, if it was unconstitutional to consider
protestations of innocence when considering parole (i.e., if Plaintiff succeeded on his
Fifth Amendment claim), then Plaintiff might have stated a viable substantive due
process Claim that the denial of his parole due, in part, to the exercise of his Fifth
Amendment rights shocked the conscience.
Case No. 2:21-cv-5852 Page 10 of 10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381449. Public record. Not legal advice.