United States District Court, S.D. Ohio, Eastern Division
GREGORY L. SOLLY, Plaintiff,
CYNTHIA MAUSSER, et al., Defendants.
ELIZABETH P. DEAVERS MAGISTRATE JUDGE
OPINION AND ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
Gregory L. Solly, a Caucasian inmate in state custody who is
proceeding without the assistance of counsel, brings this
civil rights action under 42 U.S.C. § 1983 for
declaratory and injunctive relief against Gary Mohr, Director
of the Ohio Department of Rehabilitation and Corrections;
Cynthia Mausser, Chairperson of the Ohio Adult Parole Board
(“OAPB”); and ten individual OAPB members
(collectively, “Defendants”). This matter is
before the Court for consideration of Defendants' Motion
for Summary Judgment (ECF No. 67). For the reasons that
follow, Defendants' Motion for Summary Judgment is
a state inmate currently incarcerated at Allen Correctional
Institution (“ACI”), was convicted in 1980 of the
murder of a five-year old boy. (Affidavit of Brandon Allen,
ECF No. 67-4, ¶ 4 (“Allen Affidavit”).)
Plaintiff is serving an indefinite sentence of fifteen years
to life, with parole eligibility after serving fifteen years.
(Affidavit of Andrew Imbrogno, ECF No. 67-1, ¶¶ 7-8
August 8, 2013, the OAPB conducted a panel hearing to
consider Plaintiff's release on parole. (Imbrogno
Affidavit, ¶ 6; Fourth Amended Complaint, ECF No. 53,
¶ 9 (“Fourth Am. Compl.”).) Defendant Andrew
Imbrogno served as the lead panel member during that hearing
in which Plaintiff and Defendants OAPB members Ron Nelson,
Jr., Richard Cholar Jr., R.F. Rauschenberg, Ellen Venters,
and Trayce Thalheimer also participated. (Imbrogno Affidavit,
¶ 6; Fourth Am. Compl., ¶ 10.)
September 30, 2013, Plaintiff was denied parole. (OAPB
Decision and Minutes, ECF No. 67-3.) Plaintiff's next
hearing was continued for ten years to August 1, 2023.
(Id. at 1.) In reaching this decision, the OABP
considered the following:
The inmate is incarcerated for his role in the death of a
male child. The inmate has completed several risk-relevant
programs. The inmate recognizes the wrongfulness of his
actions and is remorseful. However, this serious offense is
aggravated by several of its characteristics, including its
extreme callousness, its duration, and the vulnerability of
the young victim. For that reason and after weighing all
relevant factors, the Parole Board determines that the inmate
is not suitable for release at this time.
(Id.) The OAPB therefore concluded as follows:
There is substantial reason to believe that due to the
serious nature of the crime, the release of the inmate into
society would create undue risk to public safety, or that due
to the serious nature of the crime, the release of the inmate
would not further the interest of justice or be consistent
with the welfare and security of society.
March 18, 2015, Plaintiff filed his Complaint, alleging that
during the parole interview, OAPB members asked him a variety
of questions relating to the circumstances surrounding the
crime for which he was convicted and also a number of
questions concerning the civil suit he had filed in 1994.
(ECF No. 3.) He also alleged that OAPB members made a number
of comments that reflected that they were relying on false
information and denying him a meaningful and fair parole
hearing. (Id.) Plaintiff further alleged that during
the hearing and in subsequent correspondence, he inquired as
to why African Americans with similar crimes and prison
records were granted parole at higher ratios than Caucasian
Americans, but that Defendants refused to respond.
(Id.) According to Plaintiff, Defendants abused
their discretion in denying his parole because they relied
upon false information, retaliated against him for filing a
civil suit, and applied stricter standards because he was
Caucasian. (Id.) He asserted claims of retaliation,
equal protection, due process, and separation of powers.
(Id.) Plaintiff sought declaratory and injunctive
November 6, 2015, the Court dismissed Plaintiff's
due-process and separation-of-powers claims. (ECF No. 10.)
Thereafter, upon unopposed motions (ECF Nos. 21, 32, 41, 49),
the Court granted Plaintiff leave to amend the Complaint on
four occasions to clarify the identity of John Doe
Defendants. (ECF Nos. 28, 34, 42, 52.) On November 4, 2016,
Plaintiff filed the Fourth Amended Complaint, asserting
claims of retaliation, equal protection, due process, and
separation of powers. (ECF No. 53.) Plaintiff seeks
declaratory and injunctive relief. (Id.) Defendants
have filed a Motion for Summary Judgment on Plaintiff's
claims (ECF No. 67), which Plaintiff opposes (ECF No. 73
(“Opposition”)). With the filing of
Defendants' Reply (ECF No. 79 (“Reply”)),
this matter is ripe for resolution.
Federal Rule of Civil Procedure 56, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “The moving party has the initial burden of
proving that no genuine issue of material fact exists, and
the court must draw all reasonable inferences in the light
most favorable to the nonmoving party.” Stansberry
v. Air Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th
Cir. 2011) (internal quotations omitted); cf. Fed.
R. Civ. P. 56(e)(2) (providing that if a party “fails
to properly address another party's assertion of
fact” then the Court may “consider the fact
undisputed for purposes of the motion”).
the moving party meets its initial burden, the nonmovant must
‘designate specific facts showing that there is a
genuine issue for trial.'” Kimble v.
Wasylyshyn, 439 F. App'x 492, 495-96 (6th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)); see also Fed. R. Civ. P. 56(c) (requiring a
party maintaining that a fact is genuinely disputed to
“cit[e] to particular parts of materials in the
record”). “The nonmovant must, however, do more
than simply show that there is some metaphysical doubt as to
the material facts, . . . there must be evidence upon which a
reasonable jury could return a verdict in favor of the
non-moving party to create a genuine dispute.” Lee
v. Metro. Gov't of Nashville & Davidson Cnty.,
432 F. App'x 435, 441 (6th Cir. 2011) (internal quotation
marks and citations omitted). “When a motion for
summary judgment is properly made and supported and the
nonmoving party fails to respond with a showing sufficient to
establish an essential element of its case, summary judgment
is appropriate.” Stansberry, 651 F.3d at 486
(citing Celotex, 477 U.S. at 322-23).
brings his claims against Defendants under 42 U.S.C. §
1983, which provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for
first asserts a violation of his procedural due process
rights under the Fourteenth Amendment to the United States
Constitution relating to Defendants' consideration of his
parole eligibility. (See generally Fourth Am.
Compl.) Plaintiff, however, asserted a procedural due process
claim in his original Complaint (ECF No. 3), which the Court
previously considered and rejected (ECF Nos. 4, 10.) In
dismissing this claim, the Court reasoned as follows:
If a state statute vests 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); see also
Jergens v. Ohio Dep't of Rehab. & Corr. Adult Parole
Auth., 492 F. App'x 567, 569-70 (6th Cir. 2012)
(holding that because Ohio has a completely discretionary
parole system, Ohio law creates no protected liberty interest
in release from parole).
Although inmates have no liberty interest in parole, the Ohio
Supreme Court has held that inmates have a right to accurate
parole records. State ex rel. Keith v. Ohio Adult Parole
Auth., 24 N.E.3d 1132, 1137 (Ohio 2014) (“[I]n any
parole determination involving indeterminate sentencing, the
OAPA may not rely on information that it knows or has reason
to know is inaccurate.”). Therefore, “knowing
reliance on false information in a parolee's file, which
the Parole Authority has no discretion to do under state law,
can constitute a due process violation.” Kinney v.
Mohr, No. 2:13-CV-1229, 2015 WL 1197812, at *4 (S.D.
Ohio Mar. 16, 2015) (citing Keith, 24 N.E.3d at 1137
and Ohio Rev. Code § 2967.03). But although Plaintiff
alleges that Defendants relied on false information in
denying him a meaningful parole hearing, he does not describe
the nature of the false information or how it was used
against him. Such a “naked assertion devoid of
further factual enhancement” is insufficient to state a
plausible claim for relief. Iqbal, 556 U.S. at 678
(internal quotation marks and citation omitted); see also
Jergens, 492 F. App'x at 571 n.5 (noting that a
parole board's reliance on false information in the
parole file could constitute a due-process violation but
holding that “in this case, [the plaintiff's]
nonspecific allegations of falsity simply fail to make out
such a claim”).
In his Objection [to the Report and Recommendation (ECF No.
4)], Plaintiff cites Wilkinson v. Dotson, in which
the Supreme Court held that constitutional challenges to
parole-board procedures are cognizable under § 1983 as
long as the action's success is not dependent on
demonstrating the invalidity of confinement. 544 U.S. 74,
81-82 (2005). But Plaintiff has not asserted that
“OAPA's actions were grounded in constitutionally
impermissible considerations.” Jergens, 492 F.
App'x at 571 n.5. Therefore, Dotson is not
controlling here. Plaintiff fails to state a colorable
due-process claim under § 1983.
(ECF No. 10 at 5-6 (emphasis in original).)
original Complaint's due process allegations are the same
or substantially similar to his due process assertions
contained in the Fourth Amended Complaint. (Compare
original Complaint, ECF No. 4, with Fourth Am.
Compl., ECF No. 53.) Nothing in Plaintiff's Opposition,
which provides little, if any, discussion of this claim,
persuades this Court that its prior decision is erroneous or
is not equally applicable to the procedural due process claim
raised in the Fourth Amended Complaint. Accordingly, as it
relates to Plaintiff's procedural due process claim,
Defendants' Motion for Summary Judgment is
Separation of Powers
next raises “a violation of the Separations [sic] of
powers in violation of the Fourteenth Amendment to the United
States Constitution[, ]” seeking declaratory relief
that Defendants violated “a separation of powers . . .
.” (Fourth Am. Compl., PAGEID # 468.) Defendants
correctly note that Plaintiff raised the same claim in his
original Complaint (ECF No. 3, PAGEID # 30), which the Court
previously considered and dismissed. (ECF No. 10 at 6-7.)
Like his prior claim, Plaintiff does not advance any
supporting factual allegations. (See generally
Fourth Am. Compl.) Notably, Plaintiff appears to abandon this
claim in his Opposition by failing to identify it when
listing his other claims. (Opposition at PAGEID ## 830-31.)
Moreover, as this Court previously recognized, “a
separation-of-powers claim is not cognizable in federal court
because ‘the doctrine of separation of powers embodied
in the Federal Constitution is not mandatory on the
States.' Whalen v. United States, 445 U.S. 684,
689 n.4 (1980).” (ECF No. 10 at 6.) For all of these
reasons, as it relates to Plaintiff's
separation-of-powers claim, Defendants' Motion for
Summary Judgment is GRANTED.
alleges that Defendants violated his rights under the Equal
Protection Clause of the Fourteenth Amendment when they
treated him differently than similarly situated individuals
and denied him parole. (See generally Fourth Am.
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution forbids discrimination that
“‘burdens a fundamental right, targets a suspect
class, or intentionally treats one differently than others
similarly situated without any rational basis for the
difference.'” Loesel v. City of
Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012) (quoting
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673,
681-682 (6th Cir. 2011)). The ...