Simmons v. Ohio Adult Parole Authority

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GRADY S. SIMMONS,

Plaintiff,

v. Civil Action 2:23-cv-1566

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

OHIO ADULT PAROLE AUTHORITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Grady S. Simmons, a state inmate who is proceeding without the assistance of

counsel, brings this action against the Ohio Adult Parole Authority (“OAPA”) alleging that

OAPA violated his procedural due process rights when denying Plaintiff’s application for parole.

(Compl., ECF No. 1.) This matter is before the Court for the initial screen of Plaintiff’s

Complaint under 28 U.S.C. § 1915A to identify cognizable claims and to recommend dismissal

of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915A(b); see also McGore v. Wrigglesworth, 114 F.3d 601, 608

(6th Cir. 1997). Having performed the initial screen, for the reasons that follow, the undersigned

RECOMMENDS that the Court DISMISS this action pursuant to § 1915A for failure to state a

claim on which relief may be granted.

I. STANDARD OF REVIEW

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on a

host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “to less stringent standards than formal pleadings drafted by lawyers.”

Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines

v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “courts should

not have to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App’x

975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff alleges that he was denied due process at his parole hearing because the OAPA

had pre-determined that it would deny Plaintiff’s request for parole, based on a “49-rule-

combination,” before Plaintiff’s parole hearing took place. (Compl., ECF No. 1.) Plaintiff seeks

immediate release from custody and $4.85 million in damages. (Id.)

Plaintiff has failed to allege a colorable due process claim. “A plaintiff bringing a § 1983

action for procedural due process must show that the state deprived him or her of a

constitutionally protected interest in ‘life, liberty, or property’ without due process of law.”

Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006) (citing Zinermon v. Burch, 494 U.S.

113, 125 (1990)). Thus, because Plaintiff seeks to establish a due process violation relating to the

OAPA’s consideration of his parole eligibility, he “must first show that he . . . has a protected

property or liberty interest in parole.” Settle v. Tenn. Dep’t of Corrs., 487 F. App’x 290, 290–91

(6th Cir. 2012) (citations omitted). “A liberty interest in parole eligibility derives only from state

law.” Id. at 291 (citations omitted); see also Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir.

2005) (“[T]here is no fundamental right to parole under the federal constitution.”). If a state’s

statutes vest complete discretion in the parole board to determine eligibility for parole, no liberty

interest exists. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 464–65 (1989) (discretionary

prison policies do not create liberty interests implicating the Fourteenth Amendment). Here,

“Ohio does not give inmates a right to parole; the Board has authority to grant or deny a

candidate’s application at its discretion.” Bailey v. Wainwright, 951 F.3d 343, 346 (6th Cir.

2020) (citing State ex rel. Keith v. Ohio Adult Parole Auth., 24 N.E.3d 1132, 1135–36 (2014)).

Because Ohio has a completely discretionary parole system, “Ohio law does not create a

protected liberty interest in release from parole.” Jergens v. State of Ohio Dep’t of Rehab. &

Corrs. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012). As a result, Plaintiff is unable

to state a viable § 1983 due process claim challenging the OAPA Board’s eligibility

determination. Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s due

process claim pursuant to § 1915A(b)(1).

III. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS

Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. § 1915A.

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 specified proposed findings or recommendations

to which objection is made. Upon proper objections, 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).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE