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Solly v. Mausser

United States District Court, S.D. Ohio, Eastern Division

February 27, 2018

GREGORY L. SOLLY, Plaintiff,
CYNTHIA MAUSSER, et al., Defendants.




         Plaintiff, 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 GRANTED.


         Plaintiff, 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 (“Imbrogno Affidavit”).)

         On 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.”).)[1] 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.)

         On 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.


         On 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 relief. (Id.)

         On 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.


         Under 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”).

         “Once 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).


         A. Due Process

         Plaintiff 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 redress.

         Plaintiff 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).)

         The 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 GRANTED.

         B. Separation of Powers

         Plaintiff 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.

         C. Equal Protection

         Plaintiff 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. Compl.)

         The 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 ...

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