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McKinney v. Schulman

United States District Court, W.D. Kentucky, Louisville Division

April 10, 2014



THOMAS B. RUSSELL, Senior District Judge.

Plaintiff Robert Willis McKinney, a convicted prisoner currently incarcerated in the Roederer Correctional Complex, filed a pro se complaint under 42 U.S.C. § 1983. This matter is before the Court for initial review of the complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that follow, the Court will dismiss the complaint.


Plaintiff identifies the one Defendant in this action, Daniel J. Schulman, as the administrative law judge who presided over a preliminary parole revocation hearing to determine whether there was probable cause to revoke Plaintiff's parole. Plaintiff sues Defendant in both his individual and official capacities. He seeks monetary damages, punitive damages, injunctive relief in the form of referring his "case to the Kentucky Bar, " and for this Court to bar Defendant from "acting as Administrative Duties for one year and certify training before serving again."

In his complaint, Plaintiff alleges that Defendant violated his Fourteenth Amendment right to due process in three respects. First, Plaintiff complains that Defendant allowed a parole agent who had no prior contact with Plaintiff and had not "filed the complaint and request for the Parole Board Warrant" to testify at the revocation hearing. According to Plaintiff, his counsel objected to this testimony and the lack of presence of the parole officer who had initiated the revocation. Plaintiff contends that Defendant's denial of his counsel's motion for a continuance until this parole officer could be present to testify violated his " right to cross-examine the adverse witness with out a showing of good cause. " Second, Plaintiff states that at his preliminary parole revocation hearing, he presented his "SAP AFTERCARE CONTRACT' (Substance Abuse Program)" as evidence that Plaintiff did not fail to follow aftercare recommendation as charged. Plaintiff contends that the contract did not require him to complete SAP Aftercare until 2022; thus it showed Plaintiff could not have violated this parole condition. According to Plaintiff, Defendant omitted the contract from evidence which "clearly presented an augment of innocents of the [Plaintiff]" and deleted this evidence from his " FINDINGS OF FACT AND CONCLUSIONS OF LAW. " Doing so, according to Plaintiff, was "a due process violation and arbitrary at the very least." Third, Plaintiff states that Defendant also omitted evidence "from the record by failing to include it in his FINDINGS OF FACT AND CONCLUSION OF LAW '" that would have exonerated Plaintiff from the "Failure to Report Citation." This evidence, according to Plaintiff, was testimony given by the parole agent during the revocation hearing that Plaintiff contacted the "Duty Officer"; thus he was "in compliance with that one."

According to Plaintiff, Defendant failed "to allow the cross-examination of the adverse witness without cause and fail[ed] to submit a complete and accurate record of the Preliminary Parole Revocation Hearing of all evidence submitted by the Parole authority." These actions on the part of Defendant, Plaintiff contends, violated his Fourteenth Amendment right of due process. Plaintiff further contends that Defendant "failed to follow specified procedures to adequately protect a parolee's against revocation of parole in an unconstitutionally unfair manner that has been prescribed many times over." Additionally, Plaintiff alleges that Defendant's actions "are a clear showing of arbitrary and capricious actions or abuse of discretion that has harmed [Plaintiff]...."

Plaintiff states that there is no appeal of a preliminary parole revocation hearing, but the "Administrative Law Judge renders his/her Findings of Fact and Conclusions of Law ' to the Parole Board." According to Plaintiff, he requested leniency of the Parole Board "that resulted in a twelve (12) month deferment based on a fraudulent and incomplete report." It was clear, Plaintiff contends, that the Parole Board did not entertain Plaintiff's arguments about the inaccuracies in Defendant's findings and conclusions.


Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. 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 v. Wrigglesworth, 114 F.3d at 604.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

"[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). "But the district court need not accept a bare assertion of legal conclusions.'" Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court's duty "does not require [it] to conjure up unpled allegations, " McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the Court "to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


A. Individual-Capacity Claim

Defendant is immune from liability in his individual capacity. "Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 ...

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