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Darcy Perkins A/K/A Darnell Perkins v. Larry Chandler et al.

May 10, 2013

DARCY PERKINS A/K/A DARNELL PERKINS PLAINTIFF
v.
LARRY CHANDLER ET AL.
DEFENDANTS



MEMORANDUM OPINION

This matter is before the Court for initial review of Plaintiff Darcy Perkins's pro se amended complaint*fn1 (DN 10) pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the action will be dismissed.

I.

Plaintiff filed his amended complaint pursuant to 42 U.S.C. § 1983 against Kentucky Parole Board (Parole Board) Chairman Verman Winburn and Parole Board Members George Carson, Monica Edmonds, and Larry Chandler. He sues all Defendants in their individual and official capacities, and as relief, Plaintiff seeks punitive damages and release on parole.

According to the allegations in the complaint,*fn2 Plaintiff was placed in administrative segregation in October 2007 "pending the completion of an administrative investigation of homosexual activity allegations, which developed into the unfounded submission of a written disciplinary report that was dismissed upon investigation adjustment committee on or about 10/14/07." In August 2008, Plaintiff "was interviewed by the Parole Board Committee which then deferred him 30 months." He reports submitting several written responses to Defendants "as to the falsity of the homosexual allegations, as his religion is Islamic, which he faithfully practices, and such unfounded homosexual accusations was intended as a defamation of his religion."

Thereafter, on February 17, 2011, Plaintiff states that he was again interviewed by the Parole Board. "Committee members included named respondents Carson and Edmonds, who deffered his conditional release 18 months based on 'poor institutional adjustment' and recommended [Plaintiff] enter a sex offender treatment program while [his] institutional record reflects 10 months of clear conduct." Plaintiff asserts that prior to this Parole Board review, he had never been convicted of any sex offense criminally or institutionally. Thus, claims Plaintiff, "it is obvious that the respondents continued to employ the knowingly false information of homosexual activity and/or to retaliate against him for the practice of his Islamic religion."

Plaintiff, who reports being convicted of a marijuana offense, alleges that during the same February 17, 2011, parole "hearing session as when [he] was denied parole, several inmates with either violent crimes, involving firearm(s) and/or deadly weapons were granted parole, released by the board back into society." He, therefore, claims that the seriousness of the crime, poor institutional adjustment, prior felony and misdemeanor convictions, or probation violation are "not the true basis the board members would deny [him] parole, and place the public at a much higher risk by granting parole to those prisoners with far greater potential to danger to the public." Rather, claims Plaintiff, the Parole Board members' decision to deny him parole was motivated by "a hidden and personal vendetta."

Plaintiff states that KRS § 439.330 mandates that the Parole Board "'study the case histories of persons eligible for parole, and deliberate on that record.'" He claims that this statute "required the board members to consider 'that record' before them, and not the recorded false and unsupported, and dismissed allegation of homo sexual activity that should not have been contained in the record before them." Plaintiff states that he made an open records request for a copy of the dismissed prison disciplinary report containing the sexual allegations and was informed that no such disciplinary report was contained in his prison file. Thus, claims Plaintiff, "the parole board members only had one other source to learn of the false allegation of homo sexual disciplinary report, from parole board member Larry Chandler who was the warden of [KSR] at time the homo sexual activity allegation." Plaintiff also alleges that he did not receive the written notice of the Parole Board's decision until about 30 days after the hearing in violation of state law. He reports filing a request for reconsideration "[w]hich he received no response from the board's chair person until he then submitted a written complaint to the Governor's Office."

Based on the foregoing allegations, Plaintiff asserts that his First Amendment to the U.S. Constitution "right to the free exercise of his religion and the right to petition the government, for a redress of grievance was violated by the Respondents continuing to punish him based on a recorded unfounded allegations of homosexual activity behavor and when the government refused to redress [his] petition of complaint of the unconstitutional parole board hearing"; that his "U.S. Constitutional 14th Ammendment rights to practice and free exercise of his religion and the right to petition the government and his rights to due process . . . and to equal protection of the laws were violated by the Respondents when they refused and/or aquiescenced to the refusals to grant him a fair, equal consideration of parole"; that his "right to due process were further violated when the Governor himself refused to entertain the non-voting state citizen's petition of complaint"; that the Parole Board "is breaking the Fifth Amendment on Double Jeopardy grounds every time they say someone is defered for 'seriousness of crime'"; and that his rights under Section 1 of the Kentucky Constitution were violated.

II.

Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the amended complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See § 1915A(b)(1), (2); McGore, 114 F.3d at 604.

A. 42 U.S.C. § 1983 Claims

1. Injunctive Relief

Plaintiff seeks release on parole. "[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Because Plaintiff seeks an immediate or speedier ...


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