Opinion
Case No. 1:08-cv-556.
July 15, 2008
REPORT AND RECOMMENDATION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has been ordered to pay the initial partial filing fee when funds become available. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, I recommend that Plaintiff's complaint be dismissed for failure to state a claim.
Discussion
I. Factual allegationsPlaintiff Richard Brown Taylor presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Earnest C. Brooks Correctional Facility. He sues Michigan Governor Jennifer Granholm, Michigan Board of Parole (BOP) Chairperson Barbara S. Sampson, MDOC Director Patricia L. Caruso, and unspecified director Jim Armstrong.
Plaintiff complains that, on May 20, 2008, the BOP submitted to the Governor a report and recommendation that she decline to commute Plaintiff's sentence. Plaintiff contends that he was not provided with a copy of the report and was not given an opportunity to participate in its development, in violation of his rights to both procedural and substantive due process. He further suggests that the report and recommendation is inaccurate and that he was not allowed to respond to any inaccuracies. Plaintiff seeks injunctive relief only.
II. Failure to state a claim
A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff claims that his procedural and substantive due process rights were violated when, consistent with Michigan Parole Board (MPB) procedures, Defendants did not provide Plaintiff with a copy of the MPB report and recommendation to the Governor that Plaintiff's sentence not be commuted. He further claims that he has been denied his due process rights to challenge the contents of the recommendation.
A. Procedural Due Process
To establish a procedural due process violation, a petitioner must prove that (1) he was deprived of a protected liberty or property interest, and (2) such deprivation occurred without the requisite due process of law. Club Italia Soccer Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir. 2006); see also Swihart v. Wilkinson, 209 F. App'x 456, 458 (6th Cir. 2006). Plaintiff fails to raise a claim of constitutional magnitude because he has no liberty interest in the commutation of his sentence. The Supreme Court has recognized that "`an inmate has no "constitutional or inherent right" to commutation of his sentence.'" Ohio Adult Parol Auth. v. Woodard, 523 U.S. 272, 280 (1998) (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)) (quoting Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979) (holding that an inmate has no constitutional entitlement to release on parole))). Clemency proceedings ordinarily are left to the discretion of the executive and "`are rarely, if ever, appropriate subjects for judicial review.'" Woodard, 523 U.S. at 280 (quoting Dumschat, 452 U.S. at 464); see also Workman v. Summers, 111 F. App'x 369, 371 (6th Cir. 2004); Workman v. Bell, 245 F.3d 849, 851 (6th Cir. 2001). While judicial intervention may be appropriate in extraordinary death penalty cases to ensure that the procedure is not entirely arbitrary, non-death cases do not implicate any federal interest. See Woodard, 523 U.S. at 289 (O'Connor, J., concurring with three other Justices and distinguishing Dumschat, a non-death case); Workman, 245 F.3d at 851.
Because Petitioner has no constitutional right to commutation of his sentence, a liberty interest is present only if state law entitles an inmate to clemency. States may create a protectable liberty interest through the enactment of regulations and procedural rules that limit the discretion of state officials in making parole or commutation decisions. Greenholtz, 442 U.S. at 7; Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). However, the Supreme Court has recognized that such liberty interests ordinarily involve only those restrictions that place "atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Woodard, 523 U.S. at 283. "Thus, Sandin teaches that we should be hesitant to find a protected liberty interest in policy directives governing parole or commutation hearings, given that a change in the state's procedures typically will not cause a significant hardship on the inmate in relation to the ordinary incidents of prison life." Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); see also Woodard, 523 U.S. at 283.
Under the Michigan Constitution, the Governor has the exclusive power to grant commutations and pardons:
The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor.
MICH. CONST. 1963, art. 5, § 14. The Governor's constitutional power to commute sentences is broadly discretionary. See id. In light of this discretion, the Sixth Circuit has concluded that Michigan prisoners do not have a state-created liberty interest in the Michigan Parole Board's procedures in recommending to the Governor whether a sentence should be commuted. See Moran, 1996 WL 304344, at *2 (citing Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (finding no constitutionally protected interest in any parole board procedure)); see also Goree v. Burt, No. 05-CV-74592, 2006 WL 3832814, at * 1 (E.D. Mich. Dec. 28, 2006) (rejecting the proposition that MICH. PAROLE BD. POLICY DIRECTIVE 45.12 creates a liberty interest in eligibility for sentence commutation). As the Dumschat court concluded about Connecticut commutation procedures, a Michigan "felons expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope." Dumschat, 452 U.S. at 464 (footnote omitted). Because Plaintiff has no liberty interest in the commutation of his sentence, he fails to state a procedural due process claim.
B. Substantive Due Process
Plaintiff broadly argues that his inability to have unfettered access to and influence on the BOP's recommendation concerning the commutation of his sentence violates his right to substantive due process. "A plaintiff asserting a substantive due process claim faces a virtually insurmountable uphill struggle. He must show that the government conduct in question was so reprehensible as to `shock the conscience' of the court." Rimmer-Bey v. Brown, 62 F.3d 789, 791 n. 4 (6th Cir. 1995) (citing Rochin v. California, 342 U.S. 165 (1952); Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir. 1993)); see also Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir. 1997). Plaintiff's allegations in this case fall far short of meeting this formidable standard. He therefore fails to state a claim that his substantive due process rights were violated.
Recommended Disposition
Having conducted the review now required by the Prison Litigation Reform Act, I recommend that Plaintiff's complaint be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). Should this report and recommendation be adopted, the dismissal of this action will count as a strike for purposes of 28 U.S.C. § 1915(g). I also recommend that Plaintiff's motion to extend time and to amend the complaint be denied.I further recommend that the Court find no good-faith basis for appeal within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).