United States District Court, S.D. Ohio, Eastern Division
Vascura, Magistrate Judge.
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
initial screening, Magistrate Judge Vascura issued a Report
and Recommendation that recommended the Court dismiss
Plaintiffs pro se prisoner civil rights complaint
for failure to state a claim. R&R, ECF No. 6. Pursuant to
the prisoner mailbox rule, Lewis Mclntyre, Jr.
("Plaintiff") has timely objected. Obj., ECF No. 7.
Judge Vascura issued the R&R pursuant to Federal Rule of
Civil Procedure 72(b) and 28 U.S.C. § 636(b). Under Rule
72(b), the Undersigned must determine de novo any
part of the Magistrate Judge's disposition that has been
properly objected to. Fed.R.Civ.P. 72(b)(3). The Undersigned
may accept, reject, or modify the R&R, receive further
evidence, or return the matter to the Magistrate Judge with
instructions. Id. Upon de novo review, the
Court AFFIRMS and ADOPTS
Court turns first to Plaintiff's contention that the
R&R made an error of fact. Plaintiff objects that the
R&R factually erred in stating, "[i]n response to
the February 2016 order, the Ohio Parole Board held a parole
consideration hearing in March 2016." R&R 6, ECF No.
6. Plaintiff argues that the March 2016 parole eligibility
hearing was not premised on the February 2016 order but
rather the 1991 order that Plaintiff contends is null and
void. In support, Plaintiff cites an Ohio Department of
Rehabilitation & Correction Notice of Scheduled Parole
Release Consideration Hearing, dated January 25, 2016, which
advised Plaintiff of a parole eligibility hearing to be held
in March of 2016. Obj. Ex. F, ECF No. 7-1, PAGEID # 155.
Plaintiff contends that the March 2016 hearing, which was
noticed as early as January of 2016, could not have been held
in response to an Order that was issued in February of 2016.
objection is OVERRULED as irrelevant.
Plaintiffs ultimate contention, and his second objection, is
that the R&R erred in its legal determination that he
failed to state a claim for violation of due process and
right to be free from cruel and unusual punishment. Even if
the contested sentence in the R&R is factually
inaccurate, and the March 2016 parole hearing was not held on
the February 2016 order, the R&R accurately understood
and set forth the basis of Plaintiffs claim-that Plaintiff
has a due process right to a parole eligibility consideration
on the February 2016 order and that the denial of that right
violated due process and amounted to cruel and unusual
punishment. R&R 6, ECF No. 6.
the R&R correctly concluded that Plaintiff failed to
state a claim for either a due process or Eighth Amendment
violation. "To establish a due process violation [based
on a denial of a parole hearing], a complainant must first
show that he or she has a protected property or liberty
interest in parole." Settle v. Tenn. Dep't of
Corn, 487 Fed.Appx. 290, 2012 WL 5477117, at *1 (6th
Cir. 2012) (citations omitted). "A liberty interest in
parole eligibility derives only from state law."
Id. (citations omitted). "Ohio law does not
create a liberty interest in parole eligibility or release on
parole." Johnson v. Mohr, No. 2:15-cv-86, 2015
WL 1526804, at *3 (S.D. Ohio April 3, 2015) (citing
Jergens v. State of Ohio Dep't of Rehab, and Corn
Adult Parole Auth., 492 Fed.Appx. 567, 570 (6th Cir.
the Sixth Circuit has rejected an inmate's claim that
Ohio law creates a liberty interest in a meaningful parole
process and that the denial of a meaningful parole hearing
therefore violated his due process rights. Jergens,
492 Fed.Appx. at 569-71. After finding that Ohio law does not
recognize a liberty interest in release on parole, the Sixth
Circuit stated in Jergens that state-mandated
procedural requirements-such as for meaningful consideration
for parole-"do not, in and of [themselves], create a
protected liberty interest." Id. at 571
(citation omitted). Thus, the court rejected the inmate
plaintiffs claim "that, as a procedural matter, he was
denied the meaningful hearing that is required under Ohio
law" finding that "in the absence of a protected
liberty interest, his purely procedure-based claim must
fail." Id. at 571 n.5; See also Willis v.
Capots, 902 F.2d 1570 (Table), 1990 WL 63551, at *1 (6th
Cir. May 15, 1990) ("First, [Plaintiff] has no protected
right to a parole hearing. Ohio law does not create a liberty
interest in a parole hearing. [The Ohio revised code] is
purely discretionary and neither creates an expectation of
parole nor guarantees due process in the parole determination
process." (citation omitted)). The Sixth Circuit has
also explicitly rejected the argument Plaintiff makes
here-that Ohio Administrative Code § 5120:1-1-10 creates
a liberty interest entitled to constitutional due process
protection. Willis, 1990 WL 63551, at *1.
"Since [Plaintiff] has neither an inherent
constitutional right to parole nor a protected liberty
interest created by mandatory state parole laws, he cannot
maintain a due process claim based upon the denial of a
parole hearing." Utleyv. Rose, 201 F.3d 442,
1999 WL 1252880, at *1 (6th Cir. Dec. 14, 1999) (analyzing
Tennessee law which, like Ohio law, does not create a liberty
interest in parole eligibility). Accordingly, the R&R
correctly concluded that Plaintiff failed to state a due
the Sixth Circuit has held that "the decision to
postpone [a plaintiff's] parole hearing indefinitely does
not constitute cruel and unusual punishment."
Willis, 1990 WL 63551, at *1. Thus, the R&R also
correctly concluded that Plaintiff failed to state an Eighth
reasons set forth above, Plaintiff's objections are
OVERRULED. The R&R is
ADOPTED and AFFIRMED, and
Plaintiffs Complaint is DISMISSED pursuant
to § 1915(e)(2).