United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
ZOUHARY U.S. DISTRICT JUDGE
pro se Scott Kelly Hansen, an Ohio inmate, brings this
Section 1983 action against Defendants Ronald Nelson, Brian
Wittrup, and Jill DeWitz, employees of the Ohio Department of
Rehabilitation and Corrections (ODRC) and the Ohio Adult
Parole Authority (OAPA). The Complaint alleges constitutional
rights violations in connection with the revocation of
Hansen's parole in 2014 and subsequent denial of release
on parole in 2016. Specifically, Hansen contends Defendants
wrongfully revoked his parole due to a “false”
technical rule infraction (Doc. 4 at 3-8), then wrongfully
denied him release on parole based on his earlier federal
offenses (id. at 9-16). Hansen also claims he was improperly
classified as a level-four inmate and has been held in
segregated confinement without a hearing since 2014 (id. at
17-22). He seeks monetary damages and injunctive relief (id.
at 23). Hansen moves to proceed in forma pauperis (Doc. 1);
that Motion is granted.
October 1991, while on parole from an earlier state sentence,
Hansen was convicted of bank robbery in Ohio federal court
and sentenced to eleven years in prison. The OAPA issued a
state detainer warrant, but the BOP inadvertently released
Hansen from federal custody in October 1997. In April 1998,
the OAPA declared Hansen a violator at large. In 1998 and
1999, Hansen was charged in Rhode Island federal court with
seven counts of bank robbery and one charge of escape from
the institution in which he was detained (id. at 4). See
Hansen v. Lappin, 800 F.Supp.2d 76, 80 (D.D.C.
2011). He was sentenced to 221 months in prison, and the OAPA
again issued a detainer warrant. Id.
completion of Hansen's federal sentence and return to
Ohio custody, the OAPA held a parole violation hearing in
September 2014 (Doc. 4 at 6). Following the hearing, the OAPA
found Hansen guilty of a parole violation based on the 1998
escape charge -- a charge he disputes. Nevertheless, the OAPA
revoked Hansen's parole and denied his parole eligibility
for 24 months (id. at 7-8). In August 2016, the OAPA held a
parole hearing (id. at 10). It denied release and continued
further consideration of parole until August 2018 (id. at
12). Hansen's maximum state sentence expires in 2035 (id.
Hansen alleges that upon his return to Ohio custody, he was
given a level-four security classification. As a result, he
claims he has been held in “segregated punitive
solitary confinement” since September 2014 (id. at 18).
He suggests this security classification was based on the
OAPA determination that he previously escaped detention in
April 1998, but he alleges he has been denied “any
form” of hearing (id. at 19-20).
contends that (1) the 2014 revocation of parole, (2) the 2016
denial of parole, and (3) the security classification and
placement in segregation each violate his constitutional
rights under the Eighth and Fourteenth Amendments. He also
claims Defendants retaliated against him for filing other
Section 1983 lawsuits (id. at 21).
pleadings are liberally construed. Boag v.
MacDoughall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972). This
Court, however, must dismiss an action under 28 U.S.C.
§§ 1915(e) and 1915A if it fails to state a claim
upon which relief may be granted or lacks an arguable basis
in law or fact. Neitzke v. Williams, 490 U.S. 319,
325 (1989). An action has no arguable basis in law when a
defendant is immune from suit or when a plaintiff claims a
violation of a legal interest which clearly does not exist.
Id. at 327. An action has no arguable factual basis
when the allegations are “delusional” or
“wholly incredible.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
Court must construe the Complaint in the light most favorable
to Hansen, accept all factual allegations as true, and
determine whether the Complaint contains “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A complaint need not contain detailed
factual allegations, but its “allegations must be
enough to raise a right to relief above the speculative
level.” Id. A claim is plausible when the
complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
and Denial of Parole (Claims 1-4)
Supreme Court has definitively held that “[t]here is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence.” Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 7-11 (1979) (“That the
state holds out the possibility of parole provides no more
than a mere hope that the benefit will be obtained.”).
Simply put, there is no federal constitutional right to
parole. See Gavin v. Wells, 914 F.2d 97, 98 (6th
Cir. 1990). Nor does Ohio law create a protected liberty
interest in parole, as the decision to grant or deny parole
lies wholly within the discretion of the OAPA. See
Jergens v. Ohio Dep't of Rehab. & Corr., 492 F.
App'x 567, 569-70 (6th Cir. 2012). Hansen therefore fails
to state a cognizable constitutional claim based on his 2016
denial of parole.
also fails to state a claim based on his 2014 revocation of
parole. He does not allege that he was deprived of the
procedural protections recognized in Morrissey v.
Brewer,408 U.S. 471, 490-91 (1972). In fact, he
acknowledges that he received a parole violation hearing in
response to a written charge (see Doc. 4 at 6-7). Further,
“claims which challenge the revocation of parole are
not cognizable under § 1983 until the parole revocation
has ‘been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus.'” Johnson v. Wilkinson,
2000 WL 553929, at *2 (6th Cir. ...