United States District Court, S.D. Ohio, Eastern Division
OVINGTON MAGISTRATE JUDGE
C. SMITH, JUDGE UNITED STATES DISTRICT COURT
December 9, 2019, the United States Magistrate Judge issued a
Report and Recommendation recommending that
Defendants' Motion to Dismiss be granted in part and
denied in part. (See Report and Recommendation, Doc.
31). The parties were advised of their right to object to the
Report and Recommendation and of the consequences of
their failure to do so. This matter is now before the Court
on Plaintiff's objections to the Magistrate Judge's
Report and Recommendation. (Doc. 34) and
Defendants' objections to the Report and
Recommendation. (Doc. 37).
Plaintiff's Objections to the Report and
first objects to the dismissal of his retaliation claim
arguing that the âMagistrate Judge did not review and
consider each claim/issued raised relating to the retaliation
claim.â (Doc. 34 at 1). Plaintiff acknowledges that the
Magistrate Judge addressed claim one (reporting staff
misconduct to the parole panel), however, he argues that âthe
magistrate did not address claims 2 and 3 (Retaliation for
being terminated and failure to complete the program) prior
to recommending dismissal of the entire retaliation claim.â
(Doc. 34 at 2).
Magistrate Judge in the Report and Recommendation
grouped Plaintiff's retaliation claims together and
ultimately found that collateral estoppel precluded him from
relitigating the issue again. In Plaintiff's previous
case, the Sixth Circuit found that Plaintiff's First
Amendment retaliation claim was properly dismissed because he
had not engaged in protected conduct. That remains the case
here with his new allegations in the Complaint. Plaintiff has
failed to allege that he engaged in constitutionally
protected conduct and therefore his retaliation claim fails.
also objects to the dismissal of his Fourteenth Amendment
claims on the basis that “there is no practical method
of separating out what information was in the parole file
before the July 2018 parole hearing.” The Magistrate
Judge reasoned that “[t]he clock cannot be turned back
to those parole denials to provide him with relief connected
to a Fourteenth Amendment violation that might, might not,
have occurred then.” (Doc. 31 at 18). The Court agrees
with the Magistrate Judge that if Plaintiff were to prevail
on this claim, the remedy would be correction of his current
parole record and a new parole hearing, therefore dismissal
of Plaintiff's claims concerning the Parole Board's
pre-July 2018 decisions to deny him parole is justified.
Plaintiff objects to the Magistrate Judge's failure to
consider his substantive due process claim. Plaintiff asserts
that he raised this claim in his Complaint and in response to
Defendant's Rule 12(b)(6) Motion. The Court has carefully
reviewed Plaintiff's Complaint and there is no enumerated
count for violation of his substantive due process rights.
Therefore, the claim was not properly before the Court and
there was no error by the Magistrate Judge in failing to
address it. To the extent Plaintiff has pled such a claim, it
will be adequately addressed with Plaintiff's Fourteenth
Amendment claim. Therefore, Plaintiff's objections are
Defendants' Objections to the Report and
object to the Magistrate Judge's recommendation of denial
of dismissal on Plaintiff's Fourteenth Amendment claims.
Specifically, Defendants assert the Magistrate Judge applied
the incorrect standard in expecting evidentiary support for
Defendants' arguments and that Plaintiff failed to allege
a constitutional violation and has not met his burden of
showing that he was denied “meaningful consideration of
parole. (Doc. 37).
with respect to the discussion in the Report and
Recommendation regarding reference to the record, documents
in the parole file, or other evidentiary matters, the Court
agrees that any such requirement is not appropriate for
consideration of a Rule 12(b)(6) Motion. However, any such
reference was harmless.
Defendants argue that Plaintiff has failed to show that he
was denied a meaningful consideration of parole and therefore
establishing a constitutional violation. The Court agrees
that there is no constitutional or statutory right to release
on parole. State ex rel. Henderson v. Ohio Dept. of
Rehab. & Corr., 81 Ohio St.3d 267, 268 (1998).
However, the Court is presently only charged with
consideration of whether Plaintiff has sufficiently alleged
facts to maintain a claim. Here, Plaintiff has alleged that
there may be substantive errors in his records and Defendants
have not disputed this. Therefore, at this stage in the
proceedings, the Magistrate Judge correctly concluded that
Plaintiff has sufficiently pled a claim for violation of his
Fourteenth Amendment rights. Accordingly, Defendants'
objections are overruled.
for the reasons stated in the Magistrate Judge's
Report and Recommendation, this Court finds that
Plaintiff's and Defendants' objections are without
merit and are hereby OVERRULED. The
Report and Recommendation, Document 31, is hereby
ADOPTED and AFFIRMED.
Defendants' Motion to Dismiss is hereby GRANTED
IN PART AND DENIED IN PART. It is hereby Ordered
Defendant's Motion to Dismiss (Doc. #22) be
GRANTED in part, and Plaintiff's
First-Amendment retaliation claim against Defendants Alice
Handwerk, Ron Nelson, Jr., Tracy L. Reveal, Shirley A. Smith,
and Ellen Venters be DISMISSED;
Plaintiff's claims against Defendant Mohr be