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Harris v. Karl

August 16, 2006

DWAYNE HARRIS, PLAINTIFF,
v.
OLIVIA KARL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Norah McCann King United States Magistrate Judge

JUDGE GEORGE C. SMITH

Magistrate Judge Norah McCann King

ORDER AND REPORT AND RECOMMENDATION

This is a civil rights action under 42 U.S.C. §1983 ("Section 1983"), in which plaintiff, a prisoner of the State of Ohio, alleges that the Ohio Adult Parole Authority ("OAPA") violated his constitutional rights and acted in breach of his plea agreements by considering at his parole hearing an aggravated assault conviction for which the sentence had expired. This matter is before the Court on Defendants' Motion to Dismiss, Doc. No. 7, Plaintiff's Motion for Summary Judgment, Doc. No. 11, and Plaintiff's Motion for Leave to File an Amended Complaint to Include a Writ of Habeas Corpus Claim, Pursuant to 28 U.S.C. 2254 and 28 U.S.C. 2241(c)(3) ("Plaintiff's Motion for Leave to File an Amended Complaint"), Doc. No. 24. For the reasons that follow, Plaintiff's Motion for Leave to File an Amended Complaint is DENIED and it is RECOMMENDED that Defendants' Motion to Dismiss be GRANTED and that Plaintiff's Motion for Summary Judgment be DENIED as moot.

I. FACTS

The relevant facts in this action are undisputed. Plaintiff is currently incarcerated at the Richland Correctional Institution ("RCI") in Mansfield, Ohio. Complaint p.3. Plaintiff is incarcerated for three sets of convictions. Id. ¶ 8, pp. 9-10 and Exhibit B. The first set includes convictions for kidnapping, rape and felonious assault, with a gun specification for which plaintiff was sentenced to an additional 3 years, 13 to 25 years each for the rape and kidnapping convictions and 12 to 15 years for the felonious assault conviction. Id. The second set includes convictions for kidnapping and rape, resulting in a concurrent 10 to 25 year sentence. Id. and Exhibit C. The third set consists of a separate aggravated assault conviction stemming from an attack on another inmate while plaintiff was awaiting disposition of the first two sets of convictions. Id. and Exhibit D. Plaintiff received a 1 1/2 year definite sentence for that conviction, which was to run concurrently with the sentences imposed in the other cases. Id.

Plaintiff was granted his first parole hearing in December 2000. Id. ¶ 9, pp. 10-11 and Exhibit E. At that time, plaintiff had served the 1 1/2 year definite sentence for the aggravated assault conviction. Id. Plaintiff was denied parole at that time and the parole board scheduled plaintiff's next parole release hearing after he had served a total of 263 months. Id. and Exhibit F. In deferring plaintiff's next hearing, the Parole Board considered all plaintiff's convictions for which he was incarcerated, including the aggravated assault conviction. Id.

On February 21, 2001, plaintiff filed an action in the Franklin County Court of Common Pleas ("state court action"), complaining that the OAPA's consideration of his aggravated assault conviction in its decision setting the date of his next parole hearing violated the constitutional doctrine of separation of powers. Exhibit H attached to Complaint, Harris v. Wilkinson, 2001-Ohio-4052; Exhibit L attached to Complaint, Harris v. Wilkinson, 2005-Ohio-6104, 2005 Ohio App. LEXIS 5506, ¶ 4. Plaintiff also complained in that action that the OAPA "violated the terms of the plea agreements by considering the aggravated assault conviction for which the sentence already expired, and is a separate conviction from the others that he pled guilty to and was sentenced in 1989 that have unexpired sentences." Exhibit L attached to Complaint, Harris v. Wilkinson, 2005-Ohio-6104, 2005 Ohio App. LEXIS 5506, ¶ 10. The Franklin County Court of Common Pleas rendered judgment on May 7, 2001, dismissing the state court action. Exhibit H attached to Complaint, Harris v. Wilkinson, 2001-Ohio-4052, 2001 Ohio App. LEXIS5257.

Plaintiff appealed the trial court's dismissal of his state court action to the Court of Appeals for the Tenth Appellate District, Franklin County, which, on November 21, 2001, affirmed and reversed in part the trial court's judgment and remanded the case. Id. On remand, the trial court again entered judgment in defendants' favor. Id.

On December 18, 2002, the Ohio Supreme Court issued a decision which affected the parole eligibility of certain Ohio inmates, including plaintiff. Lanye v, Ohio Adult Parole Authority, 97 Ohio St.3d 456, 2002-Ohio-6719 (2002); Complaint ¶10, pp. 12-13 and Exhibit I. The parole board reconsidered plaintiff's parole in April 2003 and decided that plaintiff should serve 245 months of his sentence for his other crimes before being granted another parole hearing, establishing June 2009 as the date for his next parole hearing. Id. In making that decision, the parole board again took into account all plaintiff's convictions, including the aggravated assault conviction. Id.

Plaintiff appealed the second judgment of the trial court, rendered following the earlier remand. Exhibit L, Harris v. Wilkinson, 2005-Ohio-6104, 2005 Ohio App. LEXIS 5506. The appellate court considered the appeal in light of Lanye v, Ohio Adult Parole Authority, supra, and on November 17, 2005, the appellate court affirmed the trial court's decision. Id.

On December 15, 2005, plaintiff appealed his state court action to the Ohio Supreme Court. Exhibit M, Ohio Supreme Court Entry. On March 4, 2006, the Ohio Supreme Court declined to entertain the action because it did not involve "any substantial constitutional question." Id.

On December 19, 2005, plaintiff filed the instant action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the OAPA violated his constitutional rights and acted in breach of his plea agreements by considering the aggravated assault conviction at his parole hearings and in setting his next parole eligibility hearing.

On February 10, 2006, defendants filed Defendants' Motion to Dismiss. Doc. No. 7. On February 23, 2006, plaintiff filed Plaintiff's Opposition to Defendants' Motion to Dismiss, Doc. No. 8, and on March 1, 2006, defendants filed Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss, Doc. No. 10.

On March 22, 2006, plaintiff filed Plaintiff's Motion for Summary Judgment, Doc. No. 11, and on July 7, 2006, plaintiff filed Plaintiff's Motion for Leave to File an Amended Complaint, Doc. No. 24. These two motions are also fully at issue.

II. STANDARDS

A. 42 U.S.C. § 1983

To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Section 1983 is a vehicle for vindicating federal ...


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