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Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 1 of 50

RECEIVED

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APR ... 5 2005
Clerk's Offloe

Bt-;hit5

1-1 U.S. District Court ArlnArbor. MI

KENNETH FOSTER-BEY, JOHN ALEXANDER, WAYMON KINCAID, WILLIAM SLEEPER, ROBERT WEISENAUER, ERIC MCCULLUM, GERALD LEE HESSEL, on behalf of themselves and all others similarl y situated,
Plaintiffs,
VS.
JOHN S. RUBITSCHUN, Chair, .lAMES ATTERBERRY, MIGUEL BERRlOS, CHARLES BRADDOCK, STEPHEN DEBOER, ENID LIVINGSTON, JAMES QUINLAN, MARIANNE SAMPER, BARBARA SAMPSON, ARTINA HARTMAN, individually and in their of11cial capacities as members of the Michigan Parole Board, and PATRICIA L. CARUSO, individually and in her ofIicial capacity as director of the Michigan Department of Corrections,

05-71318
File No. ___________
Han. NANLY G. EDMUNDS
u.s Mag, Judge VIRGINIA MORGAN
FILED
APR - 5 2005
CLERK'S OFFICE U.S. DISTRICT COURT
ANN ARBOR, MI

Defendants.
-------~------------------/
CLASS ACTION COMPLAINT

The plaintiffs, by their counsel, state the following tbr their complaint:

Introduction

1. This is an action for declaratory and injunctive relief under 42 U.S.C. § 1983.

TIle plaintiffs are prisoners in the custody of the Michigan Department of Corrections (MDOC)

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 2 of 50
who were convicted before October 1, 1992, and who were sentenced to parolable life. 2. The plaintitTs seek relief for the derendants' retroactive use of substantive parole
standards that were not in effect when the plaintiffs were convicted, in violation of the ex post facto and due process clauses of the United States Constitution.
3. Specifically, aller October 1, 1992, the Michigan parole board adopted a policy that "life means life." The new policy precludes meaningful parole review tor parolable lifers and effectively converts their sentences to mandatory life terms.
4. The plaintiffs also seek relief for the defendants' retroactive use of parole laws and policies that were not in effect when the plaintiffs were convicted. The cumulative changes
have created a different parole regime, in violation of the ex post facto and due process clauses of
the United States Constitution. S. The changed standards, laws, and policies have deprived the plaintiffs of effective
parole consideration, have created a parole system for liters in which the parole board no longer exercises discretion in individual cases, and have made a parolable life sentence the equivalent of a mandatory life sentence in Michigan.
6. The changed standards, laws, and policies all but guarantee that the plaintiff's will never be paroled, or will not be paroled until years later than they would have been paroled under the substantive parole standards and the laws and policies that were in effect when the plaintiffs were convicted.
7. The plaintiffs do not seek their release. Instead they seek parole consideration using the substantive stalldards and the law and policy protections that were in effect when the plaintiffs were convicted.
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Conditions Precedent to this Action

8. The plaintiffs, by previously having filed this complaint in the form ofadministra-

tive grievances, which were denied at Steps I, IT, and III of the MDOC grievance process, have satisfied the pre-filing requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

See Exhibits 1-8, attached.

Jurisdiction and Venue

9. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331, which authorizes

federal courts to decide cases concerning federal questions, and by 28 U.S.C. § I 343(a), which

authorizes federal courts to hear civil cases brought under 42 U.S.C. § 1983.
10. Pursuant to the recent case or Wilkinson v. Dolson, u.s. _ , 2005 WL
516415 (317/05), challenges to parole procedures are permitted to be brought under § 1983.

I 1. Venue is proper in this Court because the defendants conduct their business across

the state., including in the Eastern District. In addition, some of the named plaintitTs and many of

the proposed class members are in custody in the Eastern District of Michigan. Thus their claims

arise in (he Eastern Dis(rict as well.

Parties

The Plaintiffs

12. PlaintiffKenne(h Foster-Bey is an inmate (#142187) in the custody of the MDOC

at the Ryan Correctional Facility in Dctroit, Michigan.

13. Plaintiff John Alexander is an inmate (#163875) in the custody of the MDOC at

the Gus Harrison Correctional Facility in Adrian, Michigan.

14. PlaintiffWaymon Kincaid is an inmate (#137927) in thc custody orthe MDOC at

the Marquette Branch Prison in Marquette, Mk,higan.

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15. Plaintiff William Sleeper is an inmate (#116539) in the custody of the MDOe at the Macomb Correc.(ional Facility ill New Haven, Michigan.
16. Plaintiff Robert Weisenaueris an inmate (#157085) in the custody of the MDOC at the Thumb Correctional Facility in Lapeer, Michigan.
17. Plaintiff Eric McCullum is an inmate (#120287) in the custody of the MDOC at the Mound Correctional Facility in Detroit, Michigan.
18. Plaintiff Gerald Lee Hessell is an inmate (#150163) in the custody of the MDOC at the Carson City Correctional Facility in Carson City, Michigan.
Class Allegations 19. The proposed class definition, as set forth in the accompanying motion, is: All parolable lifers in the custody of the Michigan Department of Corrections who were convicted before October I, 1992, and whose parole the "new" parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. 20. The class is so numerous that joinder of all members is impraclicab1c. 21. There are questions of law and fact common to the class. 22. The claims of the named plaintiffs ate typical of the claims of the class members. 23. The named plaintiffs will fairly and adequately protect the interests of the class. 24. Class counsel have the time, resources, and expertise to represent the class. 25. lfthe Michigan parole board had applied the snbstantive parole standards and the parole laws and policies that were in effect when the plaintiffs were convicted, they would have been paroled long ago, and/or they would have a reasonable chance for parole within 12-20 years of incarceration. 26. Even if their parole remained uncertain, their parole is being decided under substantive parole standards and under parole laws and policies that were not in etl'ect when they
4

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were convicted, that deprive them of meaningful parole review, and that effectively guarantee the denial of their parole.
The Defendants 27. Defendant John S. Rubi1.sehun is the chainnan of the Michigan parole board. 28. Defendants James Atterberry, Miguel13errios, Charles Braddock, Stephen De-
Boer, Enid Livingston, James Quinlan, Mariarme Samper, Barbara Sampson, and Arlina Hart-
man are members of the Michigan parole board. 29. The Michigan parole board, under the authority ofMCL 791.234, decides which
Michigan prisoners lo parole, and when to parole them. 30. Defendant Patricia L. Caruso is the director of the Michigan Department of Cor-
rcctions. In that capacity she has authority over the Michigan parole board. MCL 791.231 (a). Factual AlIce;ations of Named Plaintiff Kenneth Foster-Bey
31. Kenneth Foster-Bey was convicted in Detroit Recorder's Court of two counts of second-degree murder, MCL 750.317, in 1975. For these convictions, on July 16, 1975, Judge
Robert J. Columbo sentenced Mr. Foster-Bey to two concurrent life sentences with the possibil-
ity of parole. 32. Under MCL 791.234, in 1975, a recipient of a parolable life sentence came within
the jurisdiction of the parole board (and thus was eligible for parole) after ten years in prison. 33. In 1975, rehabilitated prisoners serving parolable life sentences were routinely
paroled within 12-20 years. 34. At Mr. FostercBey's sentencing hearing, Judge Colombo told Mr. Foster-Bey: This offense is parolable within ten years. [I' you become rehabilitated within that period oftime, I state publicly here on the record that I have no objection to your parole. I state that because I may not be here in ten years, but any judge who is looking at this record will know what I had in mind at the time I sentenced you.
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In 1975, in deciding whether or not to grant parole to a parolable lifer after ten
years, the parole board used essentially the same substantive standards that it used for prisoners who had been sentenced to long indeterminate terms (like 25-40 years).
36. During (he time of his confinement, Mr. Foster-Bey has compiled an exemplary
record of achievement, including attainment of a G.E.D. in 1982, an associate's degree in 1985, a
bachelor's degree in 1993, and nearly 50 certificates and awards recognizing various social and vocational aptitudes.
37. By the time of his first parole review, Mr. Foster-Bey had demonstrated enough
rehabilitation and maturation that his warden (Gary Wells) requested special parole for him. 38. Mr. Foster-Bey has long had ajob assured him upon his release from prison.
39. The Honorable Robert J. Columbo, Mr. Foster-Bey's sentencing judge, wrote a
letter to Mr. Foster-Bey on July 24, 2001. In that letter, Judge Columbo stated: At the time of sentencing not only I, but the va~t majority of trial judges in the State of Michigan were aware that by imposing life ~entences rather than determinative sentences of minimums and maximums, the Michigan Parole Board at that time was able to parole defendants who had made substantial progress toward rehabilitation upon completion of a term of tcn years. It was with that in mind that I imposed a sentence of Life for Second Degree in the case of Mr. Foster.... The reason 1did this was also to encourage Mr. Foster to take advantage of all the programs (he Corrections Department had for selt~ improvement which apparently Mr. Foster has done with outstanding success. . .. Mr. Foster is caught in the middle of it having served now over 27 years for a crime that I never would have intended him (0 serve that long.... Moreover, I would never have sentenced Mr. Foster to a term of more than two concurrent (erms of25 to 30 years.... Mr. Kenneth Foster is serving a sentence of life which the Parole Board now treats as life, sonl<lthing this sentenl'lng Judge never expected or intended to happen when he sentenced him in 1975. 40. Since 1994, the Michigan parole board has denied parole for Mr. Foster-Bey. At
cach review it has either (a) exercised no discretion at all, but simply passed on his case because
of his status as a lifer, or (b) retroactively applied substantive standards and parole laws and poli-
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Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 7 of 50

cies that were not in effect when Mr. Foster-Bey was convicted, and that are far more stringent

than the standards, laws, and policies that were in effect in 1975.

41. Mr. Foster-Bey has now served over 30 years in prison. Under current board

policy he has no realistic chance for parole. Factual Allegations of Named Plaintiff .John Alexander

42. Plaintiff John Alexander was convicted of second-degree murder, MeL 750.317, and felony firearm posses~ion, MeL 750.227b, in 1981. For these convictions, on March 25,

1981, Judge Michael F. Sapala sentenced Mr. Alexander to parolable life plus a two-year term

for the weapons charge. 43. At Mr. Alexander's sentencing hearing, Judge Sapala told Mr. Alexander:

I'm going to leave the detem1ination of release to the parole board by the sentence that I will fashion. If you show them the kind of progress some ycars downlhe line that indicates that you should be released, they will release you. But 1 will leave it up to their discretion.
44. During the time of his confinement, Mr. Alexander has compilcd an excellent

record of educational, social, emotional, and vocational growth. 45. In 200 I, Mr. Alexander tiled a motion for fe-sentencing under MeR 6.500, the

state habeas provision for collateral attacks on convictions.
46. Onl'v1arch 13,2002, Judge Sapala, Mr. Alexander's original senlencingjudge,

granted the motion and agreed to re-sentence him to an indeterminate term of years, so that he

would no longer be effectively precluded from paroie eligibility because of his parolable lifer

status. 47.

Judge Sapala stated his reasons for granting relief as follows:

Obviously, in 1981, no judge, in imposing a life sentence, could see down the road, ifI could put it this way, that the Parole Board would change to the extentlhat it wouldn't simply change policies, but, in fact, would ignore the law.... It was clearly my intent in

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this case ... that I intended that should Mr. Alexander be in a position to show the Parole Board that he should be released, that he should be. That was my intention.... [I]f I wanted to make sure he stayed in prison the rest of his life, I would have imposed those kinds of sentenccs ... like 80 to 150 years, but I did not do that. ... [W]e can say with confidence this man will not be released under the current policy of the Parole Board. That's contrary to this Judge's sentence.
48. Judge Sapala's decision to rc-scntence Mr. Alexander was reversed on appeal by
the Michigan Court of AppeaJs, based on People v. Moore, 468 Mich. 573 (2003), which held

that, as a matter of stclle law, state trial courts lacked jurisdiction to re-sentence parolable lifers.

49. Since 1994, the parole board has dcnied parole for Mr. Alexander. Each time it
has either (a) exercised no discretion at all, but simply passed on his case because of his status as

a lifer, or (b) retroactively applied substantive standards and parole laws and policies that were not in effect when Mr. Alexander was convicted, and that are 1ill more stringent than the stan-

dards, laws, and policies that were in cffect in 1981 . 50. Mr. Alexandcr has now served ovcr 23 years in prison. Under current board

policy he has 110 realistic chance for parole. .Factual Allegations of Named Plaintiff William Sleeper

51. Mr. Sleeper pled guilty to sccond-degree murder, MeL 750.317, in 1966, when

he was 17 years old. Although he had no prior criminaJ record, he was sentenced to parolable

life. 52.

Mr. Sleeper's last disciplinary misconduct report in prison was written in August

of 1967. 53.

For much of the 1970s and early 1980s, Mr. Sleeper was assigned to trustee divi-

sions of the state prison system. 54. For scveral years he served as the imnate fire chief for the Jackson facilities. In

that capacity he had access to the prison lire trucks and regularly drove without supervision on

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public roads. 55. He also worked as a chef at a restaurant in Brighton, as a scale operator at the
Grass Lake weigh station on [-94, as a sidewalk paver for the Department of Natural Resources, and as a driver for the MDOe.
56. In every setting, his work reports were excellent and he was rewarded with more and more responsibility; in some ofthcse jobs he drove unsupervised all aCross the state.
57. Tn 1984, lifers were barred from prison work-release programs. 58. Mr. Sleeper has completed nearly every prison educational and rehabilitation program that it is possible for an inmate to complete. 59. On July 11, 1974, aller eight years in prison, Mr. Sleeper was told that he would be recommended for "positive action" by the parole board at the end often years. 60. In 1976, a board member told him thaI he would be paroled at 15 years. 61. On May 26, 1988, in executive session, the full parole board voted unanimously (5-0) that Mr. Sleeper's parole should go forward to public hearing. 62. For unexplained reasons - what was later described as a "clerical error" - the public hearing was never scheduled. 63. In 1992, Mr. Sleeper's warden personally contacted the parole board to try to gel the publie hearing process started. 64. In July 1992, the full board again voted (5-0) to proceed to public hearing, and told Mr. Sleeper thai it would "begin active processing of your case in thc next few months." 65. In the interiw, tbe "new" parole board, created by the October 1, 1992, amend· ments to the parole law, came into being, and the parole process for parolable liters was stalled. 66. The "new" board vetoed his parole and gave him a five-year tlop.
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In 1998, (he board expressed "no interest" and gave him a five-year flop. 68. In 2003, the board expressed "no interest" and gave him a five-year flop. Mr. Sleeper is not scheduled for parole review again until February 2008. 69. Since 1994, the parole board has denied parole for Mr. Sleeper. Each time it has either (a) exercised no discretion at all, but simply passed on his case because of his status as a lifer, or (b) retroactively applied substantive standards and parole laws and policies that were not in effect when Mr. Sleeper was convicted, and that are far more stringent than the standards, laws, and policies that were in effect in 1966. 70. Mr. Sleeper has now served over 38 years in prison. Under current board policy he has no realistic chance for parole.
Factual Allegations on Behalf of the Other Named Plaintiffs 71. The four additional named plaintiffs all have facts similar to those of Mr. FosterBey, Mr. Kincaid, and Mr. Sleeper. (To avoid repetition, their specific facts will be reserved.) 72. Since 1994, the parole board has denied them parole. Each tinlc the board has either (a) exercised no discretion at all, but simply passed on their cases because of their status as lifers, or (b) retroactively applied substantive standards and parole laws and policies that were not in effect when they were convicted, and that are far more stringent than the standards, laws, and policies that were in effect when they were convicted. 73. Cumulatively, Messrs. Kincaid, Weiscnauer, McCullum, and Hessell have now served approximately 119 years in prison - 29 years apiece on average. Under current board policy they have no realistic chance for parole. 74. All of the named plaintiffs have superb institutional records. But Ibr the board's ref\L~alto exercise discretion, or but for the retroactive application of the post-1994 substantive
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parole standards, and but for the retroactive application of the cumulative changes (0 Michigan's parole laws and policies, the named plaintiffs would havc been paroled by 2005.
Factual Allegations on Behalf of the Proposed Class Changes iu Substantive Parole Standards
75. Under Michigan law, all members of the proposed class came within the jurisdiction 0 f the parole board after ten years of incarceration.
76. At the same time, prisoners with long indeterminate sentences (like 25-40 years) were not eligible for parole under Michigan law until they had served their mandatory minimum (e.g., 25 years) less good time.
77. As a result of this anomaly in the law, parolable lifers became subject to parole
review, and could in fact be paroled, sooner than prisoners serving long indeterminate sentences.
78. Up until 1993-94, in deciding whether or not parolable lifers should go forward in the parole process (10 he paroled), the hoard used essentially the same substantive standards for parolable liters that it used in making the parole decisions for prisoners serving long indeterminate sentences who had completed their mandatory minimum, less "good time."
79. Throughout the period when the proposed plaintiff class committed their crimes, the parole board routinely paroled rehabilitated parolable lifers within 12-20 years.
80. This was so precisely because parolable Wers got before the parole board sooner than long term-of-years prisoners, and because the parole board used essentially the same substantive standards with both groups of prisoners in deciding whom to parole.
81. Indeed, for a parolable lifer to serve 20-25 years would have been viewed as an
unusually long sentence, reserved tbr someone who had adjusted poorly to prison, or who had other signitlcant problems in his or her file, apart from the fact of the parolahle life sentence.
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82. Beginning in 1993-94, and continuing to the present day, the Michigan parole board radically altered the substantive standards it used to decide parolable lifer cases.
83. Beginning in 1993·94, and continuing to the present day, the parole board adopted an explicit poliey that "life means life."
84. Under the "new" board's substantive standards, it almost never grants parole to parolable lifers, except for tenninally ill prisoners, or as a reward for heroic acts like saving the Ii re of a corrections officer.
85. From 1994 to the pres.,nt, the parole board has essentially eonflated the meaning of parolable life and mandatory life in Michigan.
86. As a result, the parole board has stopped exercising its discretion in parolable lifer cases, because the fact of the parolable Ii f'e sentence alone dictates the result in nearly every case.
87. Tn some cases co-defendants were charged with the same crime. The more culpable person was sentenced to mandatory life or was given a very long term-of-years sentence (like 60-80 years), while the less culpable person was given a reduced sentence of parolable life.
88. Under the board's post-l 994 substantive standards, the two are now treated the same, or in some cases the more culpable defendant may be released before the parolable lifer.
89. The radical change in the parole board's substantive standards was intended to increase retroactively the punislmlent for the crimes committed by the plaintiff class, without regard to the norms of practice in place - as understood hy prosecutors, judges, probation departments, defense counsel, the public, and the defendants themselves - when the members of the plaintiff class were convicted.
90. The radical change in the parole board's substantive standards has retroactively increased the punishment for the crimes committed by the plaintiff class.
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Changes in Parole Law and Policl: 91. Beiore October 1, 1992, by law or policy, most ofthe proposed class members were entitled to parole review starting in the fourth or seventh year of incarceration that is, even before the prisoner came within the formal jurisdiction of the board (after the tenth year). 92. The purpose of the pre-parole review was for the board 10 get to know the prisoner and for the prisoner to learn - even before coming within the parole board's formal jurisdiction - what the board wanted the prisoner 10 do in order to maximize his or her chances for parole. 93. Due to a mushrooming prison population and an overworked parole board, many members ofthe proposed class never got the required lifer hearings that they were supposed to get during the first len years oftheir incarceration. 94. Before October 1, 1992, by law or policy, the proposed class members were elltilled to parole review after ten years of incarceration no less frequently than every other year. 95. Today, Michigan's parolc laws and policies have changed to reduce the frequency of review for parolable lifers to every five years instead of every two years. l 96. Before October I, 1992, by law or policy, Ihe proposed class members were entitled to parole review that included an in-person hearing with a member of the parole board. 97. Today, Michigan's parole laws ami policies have changed so thaI the parole board need not ever meet personally with parolable lifers, but instead can conduct file or paper reviews. 98. Before October I, 1992, by law or policy, all proposed class members were entitled to written reasons for the denial ofparolc ifthe board expresscd "no interest" in moving the prisoner forward to a public hearing, or otherwise rejected the prisom:r's parole.
I This change - in and of itsclf- was held not 1.0 violate the ex post facto clause, on t.he proofs available as of1997. See Shabazz v. (iahry, 123 FJd 909 (6th CiT. 1997), cert. denied, 522 U.S. 1120 (1998).
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99. Today, the parole board's expression of no interest, or a pass-over, does not require written reasons.
100. Belorc October 1, 1992, by law or policy, all proposed class members were entitled to parole review in which a statement of no interest or a pass-over was considered to be a fonnal decision of the board, namely a denial of parole.
101. Today, the parole board's expression of no interest or a pass-over is not viewed as a denial of parole; indeed, it is not even viewed as a decision or the board.
102. Before October 1, 1992, by law or policy, the proposed class members were entitled to parole review in which a statement of no interest or a pass-over was subject to judicial review in state circuit court, with I'urthcr appeal available to the state appellate courts.
103. Today, the parole board's expression of no interest or a pass-over is not subject to judicial review of any kind in any state court, except that the prosecutor or the victim can appeal a parole decision in the prisoner's favor.
104. Before October I, 1992, the parole board was established as an independent entity subject to state civil service rules, which insulated it from political influence.
105. Today, the parole board is under the direct authority of an executive department, subject to political influence.
106. All of the change~ described above were applied retroactively to the plaintiffs. 107. All of the changes described above were intended (a) to lengthen the prison sentences of the plaintiff class, (b) to limit the discretion ofthe parole board, and (c) to take parole policy out orthc hands of an autonomous body (insulated from political inlluence) and to place it instead in an executive department (subject to political influence). 108. All of the changes described above had the effect of (a) lengthening the prison
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sentences of the plaintiff class, (b) limiting the discretion oftha parole board, and (c) taking parole policy out of the hands of an autonomous body (insulated from political influence) and placing it directly in an executive department (subject to political influence).
109. The combined cumulative changes in the state's suhstantive parole standards and in the state's parole laws and policies have deprived the plaintiffs of the opportunities for meaningful parole review that they were promised when they committed their crimes and were sentenced.
110. The combined cumulative changes in the state's substantive parole standards and in the state's parole laws and policies have increased the sentences of the named plaintiffs by up to 12 years (and counting), and have made the plaintiff class effectively ineligible for parole.
Irreparable Harm 111. The named plaintiffs and the proposed plaintiff class have suffered irreparable harm, in that they are subject to substantive parole standards and parole laws and policies that are far more stringent than were in effect when they were convicted. 112. The retroactive changes in Michigan's substantive parole standards and in the state's parole laws and policies make it nearly impossible for these prisoners (0 be paroled, with the result that (hey have served, arc serving, and will serve sentences far longer than what their sentencing judges intended or anticipated.
Relit ted Cases 113. Plaintiffs Waymon Kincaid and John Alexander have hab(!(.18 corpus petitions pending in this Court, raising substantially the same issues as are raised here. See Kincaid v. Jones, File No. 04-CV-71090-DT (Hon. Avem Cohn) and Alexander v. Birkett, File No. 04-CV73953-DT (Hon. Robert Cleland).
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Claims Ex Post Facto Violations
114. The changes to Michigan's substantive parole standards and to the state's parole laws and policies, described above, ejfectively alter or extcnd the plaintiffs' prison terms, in vio-
lation of the expostfiJCto clause of the U.S. Constitution, Article 1, Section 10, Clause 1. Due Pl'Ocess Violations
115. The changes to Michigan's substantive parole standards and to the state's parole laws and policies, described above, could not havc been foreseen by the state court trial judges when they sentenced the plaintiffs.
116. Where state court trial judges sentenced the plaintiffs under one parole regime, and where a far different regime came into effect years latcr and was applied retroactively, and where the state supreme court has denied all state-law bascd relief, the plaintiffs rights have been
violated undcrthe due process clause of the U.S. Constitution, Amendment XIV.
117. The changes to Michigan's substantive parole standards and to the state's parole laws and policies, described above, have deprived the plaintiffs of meaningful parole review, and have resulted in a system in which the parole board no longer exercises discretion in lifer cases,
in violation of the due process clause of the U.S. Constitution, Amendment XIV.
Relief Requested Wherefore, the plaintiffs, on behalf ofthemsel ves and the plaintiff class, ask the Court to: (a) certify this action as a class action, pursuant to the accompanying 111otion; (b) enter declaratory relief finding that the defendants' retroactive use ofthe post-1992
substantive parole standards, combined with the defendants' retroactive use of the
cumulative post-1992 changes to Mic,higan's parole laws and policies, violates the ex
poSI,!{lCto and due process clauses ofthe U. S. Constitution;
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(e) enter injunctive relief barring the defendants from using the post-1992 substantive
parole standards and the cumulative changes to the state's parole laws and policies, as
applied to the named plaint! rts and the plainIi ff class;

(d) order the defendants [0 conduct new parole hearings for the named plaintiffs and the plaintiff class, using the pre-1992 substantive parole standards and the parole laws and policies that were in effect when the plaintiffs committed their crimes;

(e) grant the plaintitTs their costs and reasonable attorneys' fees as permitted by federal law, including 42 U.S.C. § 1988; and

(1) grant such further relief as the Court deems fair and just.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM
:v~::" ~iJJ)

By: Paul D. Reingold (P27594)

Attorney for Plaintiff

363 J.egal Research Building

80 I Monroe Street

Ann Arbor, MI 48109-1215

(734)~9
({Yb"1 /W,,£

~ 11. d 1

\) Rachcl'TUrow and Caleb Weiner

. Student Attorneys

Dated: April 4, 2005

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

REceIVED
APR - s 2005

SOUTHERN DIVISION

Clerk's Office U.S. District Court
Ann.Arbor, MI

KENNETH FOSTER-BEY, JOHN ALEXANDER, WAYMON KINCAID,

FileNo. _0_5_-_7_1_3_1 8

WILLIAM SLEEPER, ROBERT WEISENAUER,

. . HO_I!. ----'NANCt'="-'---=S:....;:E. D:;;:;.-M_U_N_DS_

ERlC MCCULLUM, GERALD LEE HESSEL,

U.S Mag. Judge VIRGINIA MORGAN

on behalf ofthemselves and all others

similarly situated,
VS.

Plaintiffs,

FILED

JOHN S. RUB1TSCHUN, Chair, JAMES ATTERBERRY, MIGUEL BERRlOS, CHARLES BRADDOCK, STEPHEN DEBOER, ENID LIVINGSTON, JAMES QUINLAN, MARlANNE SAMPER, BARBARA SAMPSON, ARTINA HARTMAN, individually and in their official capacities as members ofthe Michigan Parole Board, and PATRlCIA L. CARUSO, individually and in her official capacity as director of the Michigan Department of Corrections,

APR - 5 2005
CLERK'S OFFICE U.S. DISTRICT COURT
ANN ARBOR. MI

Defendants. _________________________1

EXHIBlTS FOR CLASS ACTION COMPLAINT

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 19 of 50
Index of Exhibits 1. Keruleth Foster-Dey's grievance, Step I - Step TIl, with responses 2. John Alexander's grievance, Step I Step Ill, with responses 3. Waymon Kincaid's !,'I'ievance, Step I Step III, with responses 4. William Sleeper's grievance, Step 1- Stcp ITT, with responses 5. Robert Weisenauer's grievancc, Step I - Step III, with responscs 6. Eric McCullum's grievance, Step I Step TTl, with responses 7. Gerald Lee Hessell's grievance, Step I - Step III, with rcsponses

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 20 of 50
/

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 21 of 50

MlCHIGAN DEPARTMENT OF CORRECTIONS
PRISONER/PAROLEE GRIEVANCE FORM
Date Received at Step I !JUL· 0 1 2004 Grievance Identifier:

483~-4247 10,94 CS]·247A

KENNETH A. FOSTER BEY

23 04

What attempt did you make to resolve this issue prior to writing this grievance? On what date? 01/08/2004 A.D. If none, explain why.

Grievant filed a "Request For Reconsideration Of: December 8. 2003. 'No
Interest' Decision". rendered by MDOe Parole Board.

State problem clearly. Use separate grievance form for each issue. Additional pages, using plain paper, may be used. Four copies of each page andsupponing documents must be submitted with this form. The grievance must be submitted to the Grievance Coordinator In accordance with the time limits of OP 03.02.130.

This grievance is being filed against the following state agencies and officials, in concert with the State Agency MDOC as followed:
MDOC Agency; former MDOC Director Mr. William S. Overton; MDOC Director Mrs. Patricia Carusol Michigan Governor Mrs. Jennifer M. Granholm; Michigan A'botorney G~neral Mr. Mike Cox; and, MDOC Parole Board, and its members individually, i.e., Chairman Mr. John S. Ruhitschun; Mr. Charles Braddock; Mr. William Slaughter; Ms. Marianne Samper; Mr. George Lellis; Mr. Miguel Berrios; Mr. James E. Atterbury;
Mr. James J. Quinlan; and, l'1s. Barbara S. Sampson.

Grievant files this grievance according to MDOC Policy Directives, namely PD-03.02.t30(E), and PD-06.0S.1'04(XX). The authority of this grievance is the violation of statutory law and MDOC policies, committed by the above named persons in their collective and individual "failure to follow the parole process as outlined in this [Le., PD-06.0S.1'04] and other policy directives may be ~rieved in accordance with PD-03.02.130 "prisoner/poralee~G~r=i~e~v~a~n~c~e~s~i~i.~I~_____________
(NOTE: SEE ATTACHED PAGES, HERETO).

RESPONSE (Grievant Interviewed? DYes [] No If No, give explanation. If resolved, explain resolution.)

P.D. 03.02.130 calls for grievances that are llOI1-grievab1.e not to be processed.

YO.u:: issue is the content of policy end therefore is llOI1-grievQble. FUrthemvre.

decisionS Illi'lde by the parole BoaI:d aId :r:eco.merrlations m:tde by its bearings officers

to gr;.mt. deny. res<:;ind. i'IIIeIld or revoke parole. or not to proceed with a lifer

interview or I11blic he<tting are non-grievable. and therefore your grievance is being
rejected. Please refer to P.D. 06';05.10!1 "Parole P.roc9!>S· for IIDre infoJllli3tian on

1lv the

I.e process.·

..

71# -::-C:CSi~-4'-=~ ;~,UlAf -=-j!.e\'7-'-'ie,w

1\

::::~~~~~~ce~Coo~:rd:i.nator

-:'1/~,~.~.-,.!.:JtLL...,--:--/-:"'-

_ _{I..6.L:....!!J{I1I,L/L-I_

Respondent's Name (pnnt)

Working Title

Reviewer's Name (Print)

Working Title

ly/bLJi DoratjeeRveatnu~rn7ed VI

If resolved at Step I, Grievant sign here. Resolution must be described ahove. r;G<:;ri"::ev:::a--nt"-·s:"<S;l"ig--n-cat"'ur=e--------- Date

DISTRffiuTloN!whitl. Gr~en\ Canary, Pink--Ptocess to Step One; Goldcnrod~~Gricvant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 22 of 50

The challenge of this grievance, is that 'failure to follow

the parole process as outlined in the various policy directives'

(i.e.,

PD-06.05.100,

PD-06.05.103,

PD-06.05.104,

and,

1'D-06.05.105), relating to the processing of a parole release

in a "parolable" lifer case. In other words, the release on parole

according to these policy directives.

The timing of this grievance does not violate policy, as there is. no policy of statute limitation of time. Therefore, this grievance meets all of the statutory and policy requirements for filing this grievance.

By the "collective" and/or "individual" acts, omissions, customs and policies, the herein named persons have violated
grievant's constitutional rights under both state and federal consti tutions. EqUOllly so, the herein named persons have applied parole laws, rules, regulations, policies, procedures and practices, erroneously and retroactively to grievant's case,
in direct violation of the "due process" and "ex post facto" clauses. And in support of these claims, grievant states the following:

1) On July 2, 1975, grievant was convicted of a crime and sentenced to a "parolable" life sentence in prison.

2) At the time of grievant's conviction and sentencing. a different parole regime existed than exists today.

3) On July 16, 1975, grievant's sentencing judge sentenced grievant to a parolable life sentence, knowing that at the time, lifers: a) had the right to have Ol personal interview at frequent intervals; b) to be given reasons for a[ny] parole pass-over; c) to have a parole pass-over treated as a denial of parole for purposes of judicial review; and d) to appeal such an adverse decision to the court.

In addition to these, at that time, parolable lifers were reviewed by the parole board under the same, or nearly the same,
standards for parole as other inmates with long indeterminate (i.e., term-of-years) sentences.

4) At the time, many Michigan judges viewed a parolable life 'sentence as more lenient than a long term-of-years sentence,
simply because eligibility began after just ten years instead of later, but WOlS otherwise the same in virtually all respects.

5) Since 1994, Michigan parole laws, policies, and procedures
have changed radically for the worse for this grievant. According to the former parole board chairman, since 1994, "life means life." Grievaut therefore, contends that sinc91994, there has
been almost no distinction betweeen parolable life and mOlndatory life in Michigan.

2

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 23 of 50
Grievant further contends, that this concept of "life means life", is a direct violation of both parole board policy and Michigan statutory law.
6) On December 8, 2003, the Michigan parole board decided to deny grievant a parole release, via a public hearing. The parole board cited an action of "NO INTEREST" I which grievant contends is also a violation of parole board policy. as well as Michigan statutory law. There is no such action as "No Interest" .
7) The above named persons, agencies, and officials have erroneously applied the new parole laws, policies, practices, and procedures retroactively, to this grievant I s detriment, and in direct violation of the due process and ex post facto clauses of the state and federal constitutions.
Grievant therefore, requests that he be reviewed for a parole release under the parole regime and the parole standards that existed when grievant was convicted and sentenced to prison.
(NOTE: See Exhibit "A", attached hereto).
Respectfully Submitted,
~~Lf.~'~
Kenneth A. Foster
3

Michigan DCeapsaert2m:0e5n-tcov-f7C1o3r1re8-cMtioOnBs-VMMParolDeoScuomarednNt 1oticeFoilef dDe0c4i/s0i5o/n2005

Page 24 of 5P0age 1 of 1
CFJ·279

Name:
FOSTER KENNETH

Number: A142187

Location:
RRF

Mailed: 12/11/2003
'-13 - ()h'~

The Michigan Parole Board, having conducted a review of the above prisoner's case,
has determined the following:
IX IThe majority Df the Parole Board has no interest in taking action at this time. Your case
will be reviewed as required by law.

DECISION DATE: 121Cl8/2003
92

ACTION: , No Interest

fJ-J,coff Next In!te.rOvi~ew SchedUled:

.-A--....-----

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 25 of 50

MicbigllD J>c,Jal'tment of Corrections GRIEVANCE APPEAL RECEIPT - STEP II

DATE:

7127104

TO:

FOSTER

142187

LOCATION: IlIlF

4B·6U

FROM:

GrieVi1DCe Coordinator: Rita Crittenden

SUBJECT: Rocoipt "i"the Grievance Appeal Form

I acknowledge receipt of your SU-'jl Il grievance amlcal, idcntificr RRF / 2004 / 07 1 0661 / 27B

which was rccc.ivCd in (his office on

7127/04

Unless you IIrc o(h~rwis~ notified you should be provided II Step II response within 15 business days of the

dale your appelll was received or no later than

8/17/04

If you have not received a response by tllis date or tlle approved extension, you may submit your Step III

Appeal to the Directors office,

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 26 of 50

TO: MDoe Director's Office

Grandview Plaza Building

P.O. Box 30003

Lansing, Michigan

48909

FR; Kenneth A. Foster Bey, 11142187
Ryan Regional Corr. Facility 17600 Ryan Road Detroit, Michigan 48212-1155

RE: Step III Grievance Appeal.

August 19, 2004 A.D.

Dear Di

's Office:

Enclosed, please find the following documents: Grievant's

Step I and II Grievance (with original grievance page attached) I

Additional

#2 3 (two (2) copies) 1 MDOe Parole Board Notice

of Decision (dated 12/08/2003); steps I and IX Gdevance

Responses; and, Prisoner/Parolee Grievance Appeal Form (Steps

II and III), all for filing within this office.

PLEASE NOTE: that on August 16, 2004 A.D., grievant received the Step II Response from Mr. Raymond D. Booker, Warden.

'I'hankillg you

your time in this matter.

Respectfully Submitted,
~-tLf....-Z.~;;;'12187
Kenneth A. ~s~~r ~142187

cc: file/kafb.

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 27 of 50

MtCHlGAN DEPARTMENT OF CORRECTIONS

4835·4248 \2/97

l~rrtt?3 4~~~1cl1,b, PRlSONERJPAROLEE GRIEVANCE APPEAL FORM

aDtaSteteRpeIceIiv:e"d~rJhll.lY.1\"/,

~rSie, .i v.ahmil:e'J,r'ryt~:'Lo!ordinator

c., v.,,L, "

,.

Grievance Identifier

CSI·Z47 B

INSTRUCTIONS;

THIS FORM IS ONLY TO BE USED TO APPEAL A STEP I GRIEY u have not becn provided u appeal it at both Step
I, ~~ o~Jk.dos/
ered terminated,

n. If you should decide to appeal the response you receive at Step you sho send your Step III Appeal to the Directo~s
Office. p.o. Box 30003; Lansing. Michigan. 48909.

Number

Ir'lstilulioo I....(lCk Numoer

, /JfCJ-!f'1 ~ $~6

Date <'If Incident Today+s Date
12/08/03 07/21/04

STEP 1I.:~ason for Appeal Grievant is not satisfied with the response provided
-,-a-t;-'Che step I level. step I response is not correct. Once a.ga.in, this grievant olearly states that he is filing this grievance against ·tile parole board's "FAILURE TO FOLLOW THE PAROLE PROCESS AS OUTLINED IN
PD-06.05.1 i04", as well as other policy directives.

Policy clearly indicates in this regard, a grievance CAN BE written and filed on the parole board. Grievant IS NOT grieving the parole board's decision or recommendation. The language of PDl 06.05.1104(XX)

is ver.y clear. . It is written in plain "English". The parole board o. an

I

STEP n··Response

to the policy. (SEE GRIEVANCE ENCLOSED).

After review of your grievance, I filld the Step I response is upheld and there is

no violation of Policy Directive 03.02.130. Prisoner/Parolee Grievance".

Paragraph F (2), reads in part, "... Grievances that raise the following non-grievable

.

issues also shall be rejected by the Grievance Contdinator: (2) Decisions made by the Parole Boa~d and rec~mme~datlons

made by its hearing officers to grant, deny. rescind. amend or revoke parole, or not to proceed wIth a· hfer mtel'VlCW or a

public hearing." Your grievance is as a result of a fmding by the Parole Board. Grievance Rejected.

<6-5-

Date Returned 10

Respondent's Name (Print)

Respondent's Signature

Dale

C·' STEP IJI.. easonforA~peal AGAIN. and for the third time, Grievant 11 NOT ___",9.C_ic ving" a parole board's decision'. Quite the contrary! Grievant is grieving the parole board's "FAILURE TO FOLLOW THE PAROLE PROCESS AS OUTLINED IN PD-06.05.104". See PD-06.05.104(XX).

Grievant would like for his grievance to be adjudicated
accordingly. The parole' board "failed" 1n its procedural duties.

NOTE: Only a

of this appeal and the response will be returned to you.

STEP III..Director's Response is attached as a separate sheet.

or If you find the Step III Director's response unsalisfactory. you have the option referring the grievance to the Offiee of
Legislative Corrections Ombudsman. 41h Floor. Capitol Hall, 115 W. Allegan, Lansing. Michigan, 48913,

DISTRIBUTiON: Whilc..CenlraIOffice; Green - Canary "Slep lil; Pink"Slep II; Goldenrod..Gl'ievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 28 of 50
THIRD STEP GRIEVANCE RESPONSE
Kenneth Foster, #142187 RRF-04-07-0066J-27h
The Grievant presents an issue which alleges on December 8, 2003, the Michigan parole board decided to deny him a parole release, via a public hearing. The parole board cited an actioll of"no interest" which the grievant states is a violation ofthe parole board policy. The issue was found not "&,'ficvable at the local level according to the provisions of Policy Directive/Operating Procedure 03.02.130 (PrisonerlParolee Grievances).
This investigator has reviewed the rewrd presented with the appeal to Step Three. Upon further review ofthe documents presented, the record supports the Step One and Step Two responses to the grievance.
Additional infonnation has not been presented to demonstrate an elTor in this determination. This decision is upheld at this level. Therefore, this grievance appeal is denied.
Approval Signature: ----J~¥'L.I.:.-_i1"""LC."~~-~~":~!f"""="-"""""___ Date: _) (;)<¥/Il¥
#8/ I0-25-0412 7b
cc: Warden Grievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 29 of 50

..
'.',

(

" 'Tl/o

Case 2:05-cv-71318-MOB-VMM Document 1

tnCHII'JAN DEPARTMENT OF CORRECTIONS
PRISONEJ!/PAROLEE GRIEVANCE FORM 'f,;,

Date Received at Step I _...-L~,,-,-_-:...i_ Grievance Identifier:

Filed 04/(05/2005
,I :\ i /
I I II

Page 30 of 50
4835-4247 10,94 CSJ·247A

What attempt did you make to resolve !his issue prior to writing this grievatl"cei On what
If none, explain why. 1 'Ar')t"" th~! W;5rr'!1!r1l. ':!If i'll'll" c.<:·I.'lc'?l"'l.i. nq Ulijl
hi'~w t"'il~H;~~"::""n,!~\lr2~'II ttT")\a W'ill:rrl~1Jn::§I ot'l(!~ ft~ n.:'~',t. in.'IJ'r::ilv;;~\d

mi!Ht"lr,~",'1 r"".~,·dv"··:1
i'f~. t..h(~ p\':'I,·r0l~ ~.'f:j,'lr:f'I~;"7r..,I'

\

-'.

.

.;

State problem clearly, Use separate grievljiice fonn for each issue. Additional' pages, using plain paper, may be used,r

Four copies of each page and supporting documents must be submitted with this fonn, The grievance must be submitted

Qr to the Grievance Coordinator in a~cordance with the time limits of OP 03,02,130. Tn i. ~,l r t \\1!V II1m'l i i!l I. II t "0 t ~" "

to run a~.ln.t all ••play •• a, Ig_ntu, ind ~Qoncl~~

th. Itat. 0f ~l.

"'Ii<) hill"liol ;,HIlI .infHII!II'IC'~ (.-Ill t~Hl -:QttIP').I,!iii<.i. IHI, l,hl~ p'Hlct!litili, f.!Cil.C';t<."Ht,
;rocedure. or ~n. Mlchlgln ?~rol' Iffiard. illcludlng but nat llmlt~~ t~

tn'i! fal H1Wln) illdl\{I-:i1J.t!l~ ;and wnt.lt.i'~~1

l . OO\l'lIrnor S,;m":.IIIH ~r"nl)ul.

1. Cn~trp.r.Qn John S.
2. CharI • • Dr~ddg~_ ~. Wllll •• Sl~uJnt~r

B~ 'tt&tn~y G~~~!r~l Kt~,! C~y
c. P,)~rlcil~ C.'H""';,,,;::lr;'~t.<ll; :J
MIIIoDII'O.C", fl. Th1l Ml,ahi.';~':l.~n. i),:,I,,, t, ~'1'(' (:·,~'l~~.
5. 'l'h$, M'rC:'l Par~'/,.l..I{~\ ":::'I;~!~';'~~ !'IJ :;,

4. .!>..l "r)':r'i'''' "ICl\!ut;t :::, ~ ~,::,~ i" :t .T "'! r: '::;i! ::.:~ (!t m,"~~ ~ r

i.ndtlli.:!ulIll'r h'; ·C··'(' n ',.

6 .. :",,(,ll~;\:: ,,: ,,;. L.~¥ll.i,,$

7~: >~'~ ;~1"':"1 t,!c,··,rr'l(Y~
,iv:n" ;.' r .~. t t, ~l!~ b.U·y

•

" • . .1 ,~"-,m,, 1'. n,.d. n 1'1'1

10. ~0rb~ra ~~ S.~p.on

!:-.,.t,) C•·t~",·t·,·.

..' '."","
Grievant'!) Signature

0 RESPONSE (Grievant Interviewed? Yes [] No If No, give explanation. If resolved, explain resolution,)
... ':;.rLw.,((lCt3 c'J!.h~ h,,,,:'1 i),!(,111 c!lang!!ld •t \."C':"'" 16(~ to 2iJo1.

Gri~~anc. i8 raj ectad at 9tap I. It is ~ duplication of ~;vacgl

qrlQvanc~3 you have filed to the Parole Suard on this lama iSBU ••

Do no~ continue to fila additional grimvance. on this !ldU0 Which ;(aa b• • n aJdr.ss8~, Q'.~t.,..'it. ,. m·,~'~i~·'"~".~,pult .ill t yuM...,'l...·. (.'. j - " ( ,1;1:",,':.1\ l(:~n.,

on MOU1fiaJ Acee•• status.

f)/d{);j

Respondent's Signature Respondent's Name (Priot)

./ ~'... ': :.','" ''/ Date

/
~, -:l1J..oi~.L;-==Ffp,bL!,.~~-­

.',..,,'

,

, eviewer's Sign4u

Date

f" \'.:~
Re

;i

e

;1e'<1~::l..;.),~','~J 'hi:(1P: rint)

.") ·::1 .;i u t 'i Working Tille

Date RelUIJled to

If resolved at Step I, Grievant sign here,

Grievant "".".

.

I

'" 1

Resolution must be described above.

Grievant's Signature

Date

DISTRlBT.mON: WhIt.. Green, Canary, Pink--Proces. 10 Step One; Goldonrod··Orievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04(/05/2005 Page 31 of 50

Con'ted. pg.2.

I,Johnny Alexander, #163875, cOlllplain that the above-named parties/agencies, by their collective or individual acts and omissions, or by their customs and policies, have violated my constitutional rights under the state and federal constitutions. Specifically, they have applied parole laws, rules, regulations, policies, procedures, and practices retroactively in violation of the due process and ex post facto clauses.

In support of my grievance, t state the following:

1..

In 1981, I was convicted of a crime and sentenced to

parolable life in prison with the expressed intent for the

possibility of parole (Parolable Life).

2.

At the time of my conviction and sentencing, a different

parole regime existed than exists today.

3.

At that t 1me parole 11 fers had the right to have a

personal l?arole interview at frequent intervals, to be given

reasons for a parole pass-over, to have a parole pa ss-over

treated as a denial of parole for purposes of judicial review,

and to appeal such an adverse decision to court. In addition, at

that time paI"olable lifers were reviewed by the board under the

same, or near the same t standards for parole as any other inmates

with long indeterlllinate (term-of-years) sentences.

4.

At the time, many Michigan judges viewed a parolable life

sentence as more lenient than a long term-of-years sentence,

because parole eligibility began after just ten years instead of

later, but was otherwise the same in virtually all aspects.

5.

Since 1994, Michigan's parole laws, policies t practices,

and procedures haVe changed radically for the worse for me.

According to the former parole board chair, since 199cl "Life

means Li fe" . I believe that since 1994 there has been a Imost no

distinction between parolable life and mandatory life in

Michigan, in violation of legislative intent. ~nd sentencing

judge intent, (See attached Document 'Articles').

6.

The above-named people/agencies have applied the new

parole laws, pol icies, practices, and procedures retroactively,

to me detriment, and in violation of the due process and ex post

facto clauses of the state and federal constitutions. 1

therefore request that I be reviewed for parole/public hearing

under the parole regime and the parole standards that exist when

I was convicted and sentenced, and that the intent of my

sentencing judge be met.

Date:~

'. (
MICHIGCAaNseDE2P:0A5R-TcMv-E7N1T3O1F8-CMOOR'"RBE-CVTMIOMNS Document 1

Filed 04/(05/2005 Page 32 of 50 4835· 424R 12197

PRISONERIPAROLEE GRIEVANCE APPEAL FORM

CSJ-247 II
'SfVlF at!, 0/, 079<1· 2.5a

Date Received by Grievance Coordinator

at Step II:

(i'm·D'{ _

Grievance ldenlifier 1 1 / 1 / 1 / I I I I I L l l i

INSTRUCTIONS: THIS FORM IS ONLY TO BE USED TO The wltite copy oftlte PrisonerlParolce Grievance Fonn CSJ-247A witlt a Step I response in a timely manner) MUST be attached to tlte II and Step III.

If you
__

should decide to appeal the
_ _ _ _ _ _ _ by

Step
S

I
·

g2r.i0eva-n0ce1re.spIofnitseis

to Step II, not sub~

~~~'!~\~~~~~ uC~'vc not been provided

fJliMBIF ite~af 2f

t~ ou appeal it at both Step

Sn, tHl"ll'i\'llr>Ml;ilM.~j'IeIl'A'lPtIIY'.t'1IiIIl'Ilt~f8I&I!fu

to~ [). t.k

m
_.<

·bytlilSdate, It WIH be considered temlinated.

If you should decide to appeal the response you receive at Step II, you should send YOUf Step ill Appeal to the Dire~lor's
Office, p.o. Box 30003, Lansing, Michigan, 48909.

Name (nrs~ lasl)

Number

InstilUtion Lock N"mbcr

Date of IncideOl Tud.y'; llat: ~]

Alexand

4-

d.2-.

STEP H--Reason for Appeatl St.ep one response does not 3ddress t,he i saues. And

tha rea.ons given are whOllY false, for I have Dot filed any grievances

against. the said issues

parole stated

li:n>oasrtd.~on

o

n,is ne. ,

!\',atter.

TlJerefor8, I seek a r.;'1,ly t,o

STEP II--Response
The response at step I addresses your issue. The Parole Board states your issue has been addressed in previous grievances. Appeal denied.

Date Received hy Step II Respondent:
G -/8·01

espond nt's Signature

S;)l'rJt Dnte Returned to Grievant:

Date

6-zJl

STEP III--Reason for Appeal

I assert the same position as in step I & II. The issues nave not
been addressed, nor have t.hey heen grieved before.

NOTE: Only a copy of this

and the respome will be returned to you.

STEP III·-Director's Response is attached as a sepru;ate

If you find the Step III Director's response unsatisfacto'ry, you have the option of referring the grievance to the Offke of Legislative Correctiom Ombudsman, 4th FloOf, Capitol Hall, 115 W. Allegan, Lansing, Michigan, 48913.

DISTRIBUTION: White--CcntrnIOffice; Green· Canary ··Step III; Pink--Slep II; Goldenrou--Grievant

( Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/0\ 5/2005 Page 33 of 50
\~ THIRD STEP GRIEVANeE RESPONSE

John Alexander, #163875 SMF, 04-04-00794, 16C

'}./f

The Grievant presents an issue which alleges that the grievance is against all State of Michigan employees, agents, and agencies. The gIievancc was not rejected at the local level according to the provisions of Policy Directive 03.02.130, titled "Prisoner/Parolee Grievances" and Operating Procedure, 03.02.130 tilled "Prisoner/Pamlee Grievances"

This investigator has reviewed the record presented with the appeal to step three. It is noted that the grievance issue does not present a grievable issue in a rational and responsible manner. Relief is not warranted or recommended. Upon further review of the documents presented, tIle record supports that additional information has not been presented on appeal to demonstrate an error in this determination. This decision is upheld at this level. This grievance appeal is denied.

Approval Signature:
#4/6-24-04116C
C: Warden Grievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 34 of 50

..

( " fl'" iOr't

I.:

Case '

2:05-cv-71318-MOB-VMM "",

,.""T'D/:~o:(~cu,'~:'"m,e,' nt

1

MICIUGAN DEPARTMENT OF CORRECTIONS 'jt~i\;('

PRISONER/PAROLEE GRIEVANCE FdK'M ;;'~

Filed 04/05/2005

Page 35 of 50
48354247 10,94 CS]·241A

"
,I

I"I

-j

)"

What attempt did you make to resolve this issue prior to writing this grievance? On what date1_:.J..::-="-'-_-"--_-'-'-(',~' If none, explain why.

State problem clearly, Usc separate glievancl': form for each issue. Additional pages, using plain paper, may be"used. •;', Follt cOpies of each page andsup~rting documents must be submitted with this form. the grievance must be submitted
to the Grievance Coordinator in accordance with the time limits of OP 03.02.130.

." .. " .....,..,. " ,

'_M ••• • ••• __ "., ••~ •• ,."".",.,~ • • w "'.~ _

~,

.'~l

ariev~t's Signature

'Pl' RESPONSE (Grievant Interview~a? DYe,s No If No, give explanation. If resolved, explain resolution,)

!:~ ..... 1nl!~.,,~:',:~n,t:~:,~

b:i'.:'~',',::l r~:)fn~~:t:.i::(t {'I":;}' nl.''Ir~''~:jf';J:,~I;:)bi~·· i~,~'(:~if"t) j)Gf PD,·(ll 0",'> 1]0 [)~}CL~,',j{\n',~\ ln~:::ji~h:,: -1:,,)'

r.·!t(h~';i,i d i1!t(l<J ~ f~',~)nli·'t~~':·d Id~~hGn~'~ n\dd~) by in:1 I"k~:1.dnq~~I' (~'rhC{i,!r :':f k; \>.~i"i.'U"~t d~::n:y' i ~.!'I~~{~~nd I

f'\:',U'ok. '. \{ n()t; 1.() ~\r()G<'1\:1('i' vvith ;.'~ t i;~'f:;,r !~'~~t~~~·'\.fI;'I':.~v,/ ~"j~ F~t \~";\h(: H~~!i,H'in~J ::';t'(.~ rV·.!f."~·"Ur-p?\,g.:hl';,,:

.. ,,",II
Respondent's Signature
Respondent's Name (Print)

,",""'~'I:' 'I"""'I~,! ·'-·'.,-,r."1',,\,,~"
Working Title

Reviewer's Signaturo

: :

~

I"", Ii·",', ~d..,....

.j,,><

Reviewer's Name (print)

Date Returned to

t_1, Grievlll1t, -

.

, If resolved il1 Step I, Grievant sign here. jl.esolulion must be described above. Grievant's Si~nature

.. , D1STRHl1)TJON: ,- White, ar ""CanIlrY, Pi.hk.-Proce,~ to Step One; Gold.nrod.:arl""anl"~'·'

;

'" .. , ",

,,"" ,~,'"

,,~j"

r'~

~.,

'.\.

:',':i

Date Working Title
Date
~:
;' ....

c Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04(/'05/2005 Page 36 of 50

Grievance

This grievance is intended to run against all employees, agents, and agencies of
the State of Michigan who have any influence on the composition, laws, policies, practices, and procedures of the Michigan Parole Board, including but not limited to the following individuals and entities:

A. Governor Jennifer M. Granholm B. Attorney General Mike Cox
C. Patricia Caruso, Director ofthe Michigan Department of Corrections D. The Michigan Department of Corrections E. The Michigan Parole Board, and individually its members:

I. Chaitperson Jolm S. Rubitschun 2. Charles Braddock 3. William Slaughter 4. Marjorie McNutt 5. Marianne Samper 6. George Lellis 7. Miguel Berrios
8. Janles E. Atterbury
9. James J. Quinlan 10. Barbara S. Sampson

tiM I,WAr6~

&,',9.. , # 13 'H 1.'2 ,complain that the above-named

partieslagen les, by their coUectlVe or mdlVldual acts and omissions, or by their customs

and policies, have violated my constitutional rights under the state and federal constitu-

tions. Specifically, they have applied parole laws, rules, regulations, policies, procedures,

and practices retroactively in violation of the due process and ex post facto clauses.

In support of my grievance, I state the following:

I. In 19.!Ji. I was convicted of a crime and sentenced to life in prison with
the possibility ofparole (parolable life).

2. At the time of my conviction and sentencing, a different parole regime existed than exists today.

3. At that time parolable lifers had the right to have a personal parole interview at frequent intervals, to be given reasons for a parole pass-over, to have a parole pass-over treated as a denial of parole for purposes ofjudici al review, and to appeal such
an adverse decision to court. 111 addition, at that time parolable lifers were reviewed by
the board under the same, or nearly the Same, standards for parole as other inmates with long indeterminate (tenn-of-years) sentences.

(
Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 37 of 50
Grievance Page Two
4. At the time, many Michigan jndges viewed a parolable life sentence as more lenient than a long term-of-years sentence, because parole eligibility began after just ten years instead of later, but was otherwise the same in virtually all respects.
5. Since 1994, Michigan's parole laws, policies, practices, and procedures have changed radically for the worse for mc. According to the former parole board chair, since 1994 "life means life." I believe that since 1994 there has been almost 110 distinction between parolable life and mandatory life in Michigan.
6. The above"natned people/agencies have applied the new parole laws, policies, practices, and procedures retroactively, to my detriment, and in violation of the due process and expostfacto clauses of the state and federal constitutions.
I therefore request that I be reviewed for parole under the parole regime and the parole standards that existed when I was convicted and sentenced.
Sincerely,
Date: 5"'. /6" eNI ,2004

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 38 of 50

MICHIGAN DEPARTMENT OF CORRECTIONS GRIEVANCE APPEAL RECEIPT - STEP"
TO: 137927 KINCAID
oav. ~
FROM; MHP Grievance Coordinator C!IS7;, Tallio

4835-0978 CAJ-978 11/94
DATE: 6/14/04
8-;::2
LOCATION; MBP ~

SUBJECT: Receipt of the Gdevllnce Appelll Form

I acknowledge receipt ofyolU' Step 11 grievance appeal, Identifier MBP 04 05 1121 270D which was received in this ofOce 011 6/10/04 .
{,..,,.,..'(.#p
Unless you are otherwise notified, you should be provided II Step 11 rCSpOltSe within 15 business days orthe dute your appeal was received or 110 later than 7/1/04 • If you have not received a response
by tilis date or agreed to an extension, you may submit your Step III appeal (0 1116 Director's office.

.tr ,'..

I

zb~ MICHIGACNasDeE2PA:0R5T-McvE-N7T1o31r8C-OMR(OR, EB:C-TVIMONMS

Document 1
• ..

JUFNile2d I0i4/05/20.. 01 "5

PRISONERlPAROLEE GRIEVANCE APPEAL FORM

Page 39 of458305-424R 12/97
C51-247 B

~ .i

Date Received byjdrievancc Coordinator
at Step It _i..R.::J.Q - 0 ~I

I Grievance Icl':ritifiN I I r4Pp410511~21127pI1 I I I I I

INSTRUCTIONS: nns FORM IS ONLY TO BE USED TO APPEAL A STEP I GRIEVANCE.
The white copy d the PrisonerlParolee Grievance Form CSJ·247A (or the goldenrod copy if you have not been provided with a Step 1 response in a timely manner) MUST be attached to the white copy of this form if you tlppeal it at both Step
II and Step IIL

If you should decide to appeal the Step I grievance response to Step II, your appeal should be directed to:

Step U

MBP

,by

6111/04. If it is not submitted by this date, it will be considered terminated.

If you shQuld decide to appeal the response you receive at Step II, you should send your Step III Appeal to the Director's
Office, p.o. Box 30003, Lansing, Michigan, 48909.

Name (fi"I.I.,!)

Number

Inslitution

Lock Number

Datc or Inl:ident Today',Oato
/'-'1- 0,/

STEP II--Reason ror Appeal

- - - - - - _ _............ - - - - - - - - - - - - - - - - - , - - - - - - . . ,

STEP n··Response It is noted your Step I grievance was rejected as a non grievable issue regarding decisions made by the Parole Board. After reviewing your Step I grievance and subsequent appeal, that rejection

Dale Received by Step II Respond~n7
G,-{O -6 I

is supported.

Jerry Hofbauer, Warden
Rc,pondent's Name (Print) STEP III--Reason for Appeal

Date Returned to

NOTE: Only a copy of this appeal and the respon~e will be returned to you. STEP lU--Director's Response is attached as a separate ~heet.
= = = = = = = = ' " = '= = :::"':'===';:=.:::~.::r::=='=.
If you find the Step III Director's response unsatisfactory, you have the oplion of referring the grievance to the Office of Legislative Corrections Ombudsman, 4th Floor, Capitol Hall, 115 W. Allegan, Lansing, Michigan, 48913
DISTRIBUTION: Whitc--CcntraIOffice: Green - Canary --Step III; Pink..Slop It; Gotdcnrod--Grkvant

.f'.'.
I

(

Case 2:05-cv-71318-M"OB-VMM Document 1 Filed 04/05/2005 Page 40 of 50

THIRD STEP GRrEYANCE RESPONSE)

(I (I

Waymon Kincaid, 1/137927

d)

MBP-04-05-1121-27d

r:,

The Grievant presents an issue which is related to a Parole Board decision. The issue was found not grievable at the local level according to the provisions of Policy Directive/Operating Procedure 03.02.130 (Prisoner/Parolee Grievances).
This investigator has reviewed the record presented with the appeal to Step Three. Upon further review of the documents presented, the record supports the Step One and Step Two responses to the grievance. Additional infomlation has not been presented to demonstrate an error in this
determination. This decision is upheld at this leveL Thcrelhre, this grievance appeal is denied,

~""IY"'=::...:'-'-'-":'~-'-'~'-"-"-=""'J<." ?L,-)'3-'i/u,1"-/-~/ Approval Signature:
V #617-9-04/27d

*._.1.:...-.".._.;.3..'_...- ._ _ Date: _

_ __

cc: Warden Grievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 41 of 50

(
~;CHldANCase 2:05-cv-71318-MOB-VMM Document 1
DEPARTMENT or CORRECTIONS :..

(
Filed 04/05/2005

, i:;
Page 42 of 50
,'-~<; 8'.35·~Z47 IO/9~

PRISONERIPAROLEE CRIEVANCE FORM

CSJ·247A

'~', '~~ il~hl (I 'i 'fi .

7 a~)l)4

fjl~ ·1:j'.'I ..l ..1\ '~I ,I.\/'\ i. '1. ,J ,. "1 Ii

I Date Reqeived at Step I _ _.. ___•_ _ Grievancdctentitier:

I III

'

I

)

'i·:!,

Be bri~f and concise in describing your grievance issuer If you have anyquestion8 concerning the grie~'ance

·procedure. refer to PD 03,02.130 and OP 0:Hl2.130..availahle in the pri~on Law Library.

.

.

(

;.' ,

','

'

,

"

"":,,

,:,.

",

,",','"

".

Name (print first. last)

NUl11hcr

InHtitlJliml Lock Number Dale of Incident Today" Date

",1] 11'J1,,1'(\[,\ ':::rJI'ni~p'F'~~

11t.:;S19

,I:~'!)F~

,'\:()(~/!"'jt:.',~·~

1/1:f/!)J.l 7/'1 ~/('41

Wh:'t atte;npt did you make to resolve this issue prior to writing thi~ grievance? On what dme? " /., '", 1.'lA-- .. _ _

If nonc. c'xplain why.

. .

On '.lund 2'~, .'not, r wrclba thr.:) ~h'ili"m::Hl..clff t~.\'1J2~ \U(:!ht~.'l1n

... P·lI.cple ...)k.)ia',",d... '~);l(1,;tte"'Lw.,d;3d'.' r·".:..co:n,.dd~!r).. t.i.mr:(lf ··ffii t;<l (·;ih!.,

(Ra. attsch.d !xhihlt 11 On tbta rtatG, t c.a~iv.(1 a

l(;d:t;,:,;,,' fi:"D!;'il th~ r),;u:ol~~ r~('Jd":cd f:lta tinq t.h.~~y 'ro'<Hll .j C:('Jn$i.d,,:::~c,-

State prohlem deady_ Usc separate grievance form [Of each issue. Additional pages. using plain paper, mlly he used.

Four copks of each pllge and supporting documents mllst be submitted with this form. The grievance must be suhmitted

to the Grievance Coordinator in accordance with the lillle limits of OP 03.02. 1.10.

- ;,',1i

1,:t,,;;:u: in

,,:Of)n chn::-:ln"j 1l~1 n,}:x'f: J;:·!:!~li\~'~'l. '" II '"

'r l?'~l~ l:~ f\ '1,'.:: ':.~ r:i';~ ,1\.'r1~ i\CH1.:;f1 (:;'(~ Tr~v ,\:11(' ~~ r ~lP()I.~ t'li J\ I (ll'T
'rH.t\~r r~XPL,\Ihl';~ ri\T iH~'l':'\, tTl '"vHr) J\r'Jll ~!:~'~P\.'I' T :I\~1 t~YJTr.;\rr.q~.,

RESPONSE (Gricv

0 DYes

No

~1"'! ,tLo/,~.-

, ",

, ,

. '" Gnt,'v.ll.lt'S Slgn.l.Iul'e .,'•,

.:'

Ie No. give explanlltioJl. Ifresolved. explain resolution.)

DISTRIBUTION: Whit~, Gn':~!Il, CLlnmy, Pink -~ Prl1~:I.!!O;s to S\f,.~p One::; Gokll..'nrn(\ Gril.:vallt

(
Case 2:05-cv-71318-MOB-VMM Document 1

Filed 04(/05/2005 Page 43 of 50

GRIBVARCE. STEP ONE:

Page 1 of 2

This 91'ie'famce is. intended to run a9ainst iIlll employees, agents, aad aqeneies of the state of Mtcl!ti<Ja.ft wl\e have an,. influence ontl,. cea,.siU•• , laws, policies, practices, ilnd pl'ecedure. of the Michi9an Parole Board, including but not limited
to thefoll••ing :J.udividuals and entities:

A. c._rita%" "tiUllntfer II. Granholm B. Attorney aeneral Mike Cox
C. Patricia Caruso, Director, Michigan Dept. ar Corrections.
D. The lIiohi<JaD Department of CorrecUonS. E. 1'he Micht,•• Parole Board, lind illdividuaUy its 11l4l!mbers:

1. Chairperson John S. Rubitschun
2. Charles Bra~dock 3. Willia. Slaughter 4. Marjorie McNutt 5. Marianne Samper 6. George Lellis 7. Miguel Berrios 8. James E. Atterbury 9. Ja.as J. Quinlan 10. Barbara S. Sampson

- :r1~J&.\@M, ~~

,

.
"IIIkS!ill,

complain that the above-name.

parties agencies, by theiroollective "'1' individual acts and

Qmissi$ns,.r by their cu~toms and pelioles, have vielated my

con.tit_tienal rights under the state aad federal constitutions.

Specifically, they have applied parole laws, .l'ule8, regulations,

policies, procedures, aRd practices retroactively in violation

of the due process and ex post facto ola1l.s.s.

In support of my grievance, I state the following:

1. tn 19H r was convicted of a crtlM iIInd sentenced to
life in prison with the possibility of parole, (parolable life).

2. At the time "'f my conviction and sentencing, a different parole regime existed than exists today.

l. At that time par.lable lifers had the right to have a personal parole interview at frequent intervals, to be 'liven reasons for a parole pa8S-9ver, to bave a parele paBs-over treat•• as Ii denial of parole fer purposes ef judicial re"lew, and to appeal such an adverse decision to c&urt. In additlen, at tbat time parolable lifers vere reviewed ~y the Hard under .the .... , or nearly the same, standards for parole as other inmates with 10n9" indeterminate (term-of-years) !lent.nces.

( Case 2:05-cv-71318-MOB-VMM Document 1

Filed 04(/05/2005 Page 44 of 50

4. At the time, many Michigan judges ~iewed ill parolable

life senteRCe illS _re lenient than ill lORg terlll-.f-yaars santance,

Page two: step ORe. Grievance:

.

because parole eligibility lMI'lan after just ten years inste.1!! of later, but was otherwise the same in virtually all respectS.

5. Since 1994, MichigaDfs parole laws, policies, practiCles,
anel procedures tlaye cllillnqocll radically for the worse for lIle. AccQrdinCjJ to thj;l former parole board chair, since 1994 Nlite means life.- llIeUIlVEI that silllce ",. there has been abtost no distinction between parolable life and mandatory life in
Michigan •.

6. The above-named people/agencies have applied the nev parole laws, pelicies,practices, and proced~rea retroactively, to my detrillent, aDd in, violation of the due process aad ex post
facto clauses ef the state and fader.l constitutions.

I therefore request that I b<:l revie_d for. parole under the parole regime and the parole standard. that existed when
I was convioted and.eDtenoed.

Sincerely,

(
lIGANCDasEePA2R:0TM5-EcHvT-7O1F3C1O8R-MREOCBT-IOVNMSM Document 1 lSONJ<:RJPAROLEE GRIEVANCI<: APPEAL FORM

(
Filed 04/05/2005 Page 45 4o8f355·40248 17197
CSJ-247 B

t. late Rec~!~e4 ~Y Griev. nee Coordinator
" -.!+2.I- at Step 11: 1\~....;\ I L _ __

INSTRUCTIONS: TIllS FORM IS ONLY TO BE USED TO APPEAL A STEP I. GRIEVANCE,
The white copy of the Prisoner/Parolee Grievance Form CSJ·247A (or the goldenrod copy jf you have not b()e·n provided with a Step Tresponoe in ~ tilllely manner) MOST he attached to the white copy of this form if you ",pp(,ol it at both Stt'l'

II and Step III.

If you should decide to appeal the Step 1 grievanc(~ rcsprmse to Step II, your appeal should be directed lu: '~''''_"•. '.__.

___ ,,,,,,,_""

""_,,__ by

'),. ~~. a. ~"."i'~ f~ja :~. j'~1 ,~lf' ~,:,~'

,_,~_ _' If it is nut submitted by this date, it will Ix considered tenninated.
~,";' J ,0 0,,:1,

If you should decide to appeal the respons~ yuu receive at Step lI, you should send your Step III Appeal to the Director's

Office, p.o. Box 10001; L~nsiQg, Mkhig#I\, 489(19.

. "

i

I!
.

_..

_.T~~;';';~b!·f:' ~'"'~', ~
,.,.".,.

•.'

-\< .,.'_ .•',." ""

'Iln~tt~;li;·;~'-~~~'"l··L."~·kNu mb~;,"":, :'-.]·D;;;:;";;rr.~;d;;,;tj1;Od,,;';"""i);;I~-_.]

_ _ .1_

~ (!

_

ij'4~ ~J' _"___ !..;'"

.~~_J.tS3~.. ..,~Lu~J":::_lLL~.L.tc:~,"~3~L

STEP Il--Reasoll for Appeal

""~ t:,I~:~';? dn,:·"~ ::'<i;- :i~ ,,"/(') n s (;: \"',Nl .~~ t h.:i t r ~.:tr.[! (] ~ t ~~, vi t"'!,,:} t h ,) i",'~:i to,) 1.<~ !·'h.}-~.1 c,J ~~iI
'~)...H;;L::JI:lQIl i.n Jlj C.:'L~~~~. J..t n() ~:'i.,HH,':~ 1\"l1h~ t ~::'~iJ ~)"C i.ddi~.!{d:d 1 tr),lt I .;;4;,ll 1~~l~L~vtn'd t~h'~1 i..la,,£;'Q.l;;.;) T'h.)"J..c{L~ t!:iJ~r:l("':!j J1i in. .tty Cl.<\.~~f r d ~~ :l.C)i~'''\'''C, :';.':'i.,ijvtn'J 1:;.1'~ ,/,H'uL, h(M;:,.I, ,;;,!v:1 ,d,t ()..it'tu~:;! i!lVOl.V'I(l
~:f.it.:.h t.1h'~ nr~U;"l':~::':':\l'~t ;:)i:;I()(":,~r~rdJn:"',1 "ii\ W;·I.f.I;;;"i'"], t::h.'~~l ,J,~.c{v').I'f ~'lt. r;I,·E.t't
:·\(~(:;i,.~;o~J" ,;J.1"'vt ·r.. ~","~·"',jj'"F~'''~:i'~'7"1'li~..,7'.·.'..·~·~:".,,,~~':,.-;'''·''1,','_') ,'.:.".1r,.,) t.,"') ;~)'1".".,:'';'~'."~,) ''f""'i"l'tv''0. (" .. ) ..

STEI' n--R~,ponse

Date Rct..:eived hy

-'-11 Step

If

. .I.'eS. "I \

l'o.n\ di.,'.'~. n.\I:

Date Returned to
Gl'ieVJ.llt:

----.~---"
.-.".;..,-.."'...~' ::-:.:':'.'
If you find Ih" Step !l1 [)irector's response ullsarisfaetory, you have the option nf referring th~ gricv:lnce to the Office of Lcgj,<lative Correclion, Ombudsman, 4th Floor. Capitol Hall, 115 W, Allegan, Lansillg, Michig'lIl, 48013.
.." ' DlS"fRIl3UTION: Whilc..Ccnlrat Office: Green - Canary ••Slep!ll; Pillk--Step II; Ooldcnrod,,·Gl'ievallt

(

(

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 46 of 50

Response - Step II Grievance Appeal SRF-Q4-07-00778-27d Sleeper #116539
Grievant claims that his constitutional rights have been violated by the State of Michigan and its
Officers when they have applied parole laws, rules, regulations, pOlicies, procedures and practices retroactively. Grievant is requesting that he be reviewed for parole under a parole regime and parole standards that existed when he was convicted and sentenced.
The Grievance Coordinator rejected the grievance for containing issues that are non-grievable, per PD 03.02.130. Decisions of the Parole Board and recommendations made by its hearings
officers to grant, rescind, amend or revoke are specifically listed in policy as non~grievable.
Grievant claims on appeal to Step II that he is not grieving the decision, but is grieving the current procedure which was used to arrive at the decision.
The record has been reviewed on appeal.
The Grievance Coordinator acted appropriately in rejecting the grievance. Grievant cannot grieve a Parole Board decision and the grievance procedure has no jurisdiction over how the Parole Board arrives at decisions. Procedures cannot be grieved, per policy, and the changes made within the Parole Board have taken place under legislative enactments, which are also nongrievuble as the facility has no control over legislative decrees. No further action is required at this step.
The grievance is denied at this step.

e LaUer, War en.--
Saginaw Correctional Fa July 30, 2004
Cc: Grievance Coordinator - SRF
file

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/(05/2005 Page 47 of 50

THIRD STEP GlUEVANCE RESPONSE
WILLIAM SLEEPER, #116539 SRF,04-07-00778-27d
The Grievant presents an issue which alleges that his constitutional rights have been retroactively violated. He is seeking a review for parole under a parole regime and parole standards that existed when he was convicted and sentenced. TlLis issue was non-grienble at the local level in accordance with the provisions of Policy Directive PD03.02.130, titled "PrisonertParo1ee Grievances". There was no documentation to support the Grievant's allegations ofstaff misconduct. Therefore, the step one and two response is upheld and relief is !lot warranted at this Icvel.
This investigator has reviewed the record presented with the appeal to step three. The record supports that staff properly responded to this grievance at step two and it is not clear why the step one response was not attched.. Additional infol1nation has not been presented to demonstrate an error in this detennination. This decision is upheld at this level. This grievance appeal is denied.

~ ~ Appnw,iSign""'"

Date:

#J/12-20-04-1

cc; \'{1arden Grievant

Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 48 of 50

(
Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 49 of 50

What attempt did you make to resolve this issue prior to writing this grievance? On what date? ____._ _ _ __
If none, explain why.
No resolution can be obtained at this level of the process. The issues involved are constitutional in nature, and prior to pursuing these claims in court, the issues must be presented in this grievance anda(jministratively exhausted.
State problem clearly. Use separate grievance foml for each issue. Additional pages. using plain papcr, may he used.
Four copies of each page and supporting documents must be submitted with this form. The grievance must be submitted to the Grievance Coordinator in accordance with the timC'Jimits of OP 03.02.130,
This grievance is against all employees, agents, and agencies of the State of Michigan who have any influence on the composttion, laws, policies, practices, and procedures of the Michigan Parole Board, including but not limited to the following individuals and entities: Governor Jennifer Granholm; Attorney General Mike Cox; Director Patricia Caruso of the Michigan Department of Corrections, the Michigan Department of Corrections; Michigan Parole Board and individually tts members (Chairperson John S. Rubitschun, Charles Braddock, William Slaughter, Ma~orie McNutt, Marianne Samper, George Lellis, Miguel Berrios, James Atterbury, James J. Quinlan, and Barbara S, Sampson). I, Robert Weisenauer grieve/complain that the above named parties, by their collective or individual acts and omissions, or by their customs and policies, have violated my constitutional rights under the state and federal constitutions. Specifically, they have applied parole laws, rules, regulations, policies, procedures, and practices retroactively in violation of the due process and ex post facto clauses,
In support of this grievance, I state the following: 1. In 1979 I was convicted of a crime and sentenced to life in prison with the possibility of parole, 2. At the time of my conviction and sentencing a different parole regime existed than exists today.
(Continued on page two)

Grievant's Signalure

DYes D RESPONSE (Grievant Interviewed?

No If No, give explanation. If resolved, explain resolution,)

REJECTED
SEE ATTACHED STATEMENT

Respondent's Sib'llature

_ - - - - - ' -:--:---_..

Dale

Reviewer's Signature

Date

Respondent's Name (Print)

Working Title

Reviewer'. Name (Print)

Working Tilte

Dn,e Retu,ned to ",;' If resolved at Step r, Grievant ~ign here.

Orievant:,:/ .. 1/ '/'''/ Resolution must be described above. Grievant's Signature

Date

I....-_ _ _ _ _-L-_ _ _ _ _ _ _ _"_ ..._ _ _ _ _ _ _ _ _ _ _ _ _ _ _._'''_......~,

DISTRIBUTION: White, Or...n, Canary, Pink,·Proce" to Step One; Goldenrod--Gne,.nt

(
Case 2:05-cv-71318-MOB-VMM Document 1 Filed 04/05/2005 Page 50 of 50
Weisenauer Grievance· Page Two

Robert Weisenauar

157085

TeF CA-39

04/03/04 04/03/04

(Continued from page one)
3. AI thai time parolable lifers had the right to have a personal parole Interview at frequent intervals; to be given reasons for a parole pass-over; to have a parole pass-over treated as a denial of parole for
purposes of judicial review; and to appeal such an adverse decision to court. In addition, at that time parolable lifers were reviewed by the board under the same, or nearly the same, standards for parole as
other inmates with long indeterminate (term-at-years) sentences. 4. At the time, many Michigan judge's viewed a parolable lite sentence as more lenient than a log term-
of-years sentence, because parole eligibility began after just ten years instead of later, but was otherwise the same in virtually aI other respects.
5. Since 1994, Michigan's parole laws, policies, practices, and procedures have changed radically for the worse for me. According to the former parole board chair, since 1994, "/lfe means life." I believe that since 1994 there has been almost no distinction between parolable life and mandatory life in Michigan.
6. The above named people/agencies have applied the new parole laws, policies, practices, and procedures retroactively, to my detriment, and in violation of the due process and ex post facto clauses of the state and federal constiMions.
I therefore request that I be reviewed for parole under the parole regime and the parole standards that existed when I was convicted and sentenced.

#1'1~;t:hf4lIM 157()!lS'

,-

ROBERT WEISENAUER #157085

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 1 of 23

MICHIGAN DEPARTMENT OF CORRECTIONS

Date: To: F'rom:
Subject;

"Expecting Excellence Every Day"

MEMORANDUM

April 16, 2004

.il~,'- #157085 Weisenauer (Lock: CA-39)
Dennis Sergent, Gricvllnee CoordinatorfJ

Thumb CorrectionII) Faeility (TCF)

, ~-

"

Rejected Step I Grievance #'.fCF-04-04-00370-027D

The above referenced Step I grievance is returned to you, rejected in accordance PD 03,02.130 & OP 03.02.130. Decisions made by the Parole Board and recommendations made by its hearing oriicers to grant, deny, rescind, amend or revoke parole, prnot to proceed with a lifer interview or a public heari~~'laj no(~-grieVable.

Reviewed B(

J\,' 1,,--

'-Kalh rine Co I 'an, ADW/Housing

Dale: April 16, 2004

cc: Parole Board Pile

, , i

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 0C4/05/2005 Page 2 of 23

Step II Grievance Appeal Response

Tel? tJ40400370027 D

Nllnw: Weisenaucr

Numbe..: 157085

Locl<: CA 39

Your Step I grievance, the respunse, al)d your rea~on for appeal have heen reviewed.

Summary of Step I Complaint:

Grievance wa~ rejected at Step J in accordance with PO 03.02.130 as decisions made by the Parole Board arc non
gricvablc.

Summary of Step I Response:
N0 re~ponsc prepared.

Summary of Reason for Appeal: Prisc'ller ~1'lte,; tbere W'IS no resolution at Step 1.

Summary of Step II Investigation:
Grievance was rejected ,It Step I. PO 03.020130, pg S RR lists the following reasons issues are HUll grievanbc: #3. Oeci~hms made by the Parole Board ... ".

Conclusion:

The Step I grievance was appropriately rejected as it does nOllneel the criteria OLltlined for processing
grievances.

Based on the above, your grievance is considered

denied

at Step II.

Respondent's Name (Print) Millicent Warren, Warden

MICl.'IICGAaNseDi2~j:0I5'-Ac~Rv;-r7{~1T3' P1F8-CMORORBE-CVTMI9MNS Document 1-2

PRISONERifAR' .:":.:.-~:.";f.R' IJ, i':"V.ANq.E APPEAL FORM

Date Received at Step II:

by

GrieAvPaRnce'tC7oo7r0d0i4nator:

G '

Id 'f'

nevance enll ler

Filed 04/05/2005

Page 3 o4f83253·4248 12197
C5),247 B

'. INSTRUCTIONS: THIS FORM IS ONLY TO BE USED ~~~L A STEP I GRIEVANCE.

The white copy of the PrisonerlParolee Grievance Form CSJ -Rr~~'-

y if you have 1I0t been provided

with a Step I response in a timely manner) MUST be attache tne whit6-~~t:'b @i rm if you appeal it at both Step

II and Step III.

MA r 1 J ?UU4

~O\l ~Id ap~al a8r.;~l:!)oul ~ t? decidy:\6

the Step IJriCv?Ce response to 1(,lA,V-

directed to:

\t.JIA C£ o(j~(c.e by 6-t:. 7Jt::::., . Ifitisnlll.liubu!l!!~·~~~~ti~llW~llbeCOnSideredtenninated.

If you should decide to appeal the response you receive at Step II, you should send your Step 1II Appeal to the Director's
Office. P.O. Box 30003, Lansing, Michigan, 48909.

Name (first, last)
L.BJJB.E:£I\J...W~~.ER-

Numbo,
!'i+O~ _

r.>,NU. -Lln_,t;.j.itU.l..ti...l0n"'_...LL0.l..'"'"k

,Il~lbe~'_

_D"

,at,~er-r0Jrfl~nCJ',lidQcn4t-1.::';;:",1:-4-J
/,,,,r<:1

STEP II--Re son for Appeal '

• fesolution \ljyas reached at Step I. I am ~ubmittin!.l for resoilltion ~d
"a";&t..\Ver at Step IL

STEP II·-Response

Respondent's Name (Print)

Oat. Returned to

Date

. Grievant: --'Z~9-C.l./tf/--

NOTE: Only a copy of this appeal and the response will be returned to you. STEP IlI--Director's Response is attached as a separate sheet.
If you find the Step III Director's response unsatisfactory, you have the option of rererring the grievance to the Office of Legislative Corrections Ombudsman. 4th P100r, Capitol Hall. 115 W. Allegan, Lansing. Michigan, 48913.
t DISTRIBUTION: Whitc··CentraIOmcc; Green - Conary ••Step III; Pink•. Step II; Goldenrod-·Grievant

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 4 of 23
THIRD STEP GRlEVANCE RESPONSE
ROBERT WEISENAEUR, #157085 TeF,04-04-00370-27d
The Grievant presents an issue which alleges that Parole Board members apply incorrect rules for interviews. He is seeking the correct application of the rules as relief. This issue was non-grievable. ,It
the local level in accordance with the provisions of Policy Directive PD-03.02.130, titled "Prisoner/Parolee Grievances. The action of staff is in accordance with policy and procedure. A review at this level has not determined that any staff misconduct was demonstrated. Therefore. the
step one and two response is upheld and relief is not warranted at this level.
This investigator has reviewed the record presented with the appeal to step three. The record supports that staff properly responded to this grievance at step one and step two. Additional infomlation has not been presented to demonstrate an error in this d::terrnination. This decision is upheld at this level. TIllS grievance appeal is denied.
Approval Signature: ---:r,.'f'·:J!.!:'--~!.-".::":~".'';"'""--"=,'·.'·1.".,- ,------
# J/02 -10-05
ce: Warden Grievant

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 5 of 23

Case 2:05-cv-71318-MOB-VMM Document 1-2

( Filed 04/05/2005

Page 6 of 23
483$-4247 t0t94 CSI·241A

0.:, .") /
,~:t

..L.;~)

(/) ,I .'

Z / t >, /) What attempt did YOll make to resnlve this issue prior to writing this grievance?

If none, explain why. ....

I /

/;i,.9 A'<'!f;~ ..{"

,
>t-..,.:~<:.: ... _. I

Stale problem clearly. Usc separate grievam:e form for each issue. Additional pages, using plain paper, may be used. Four copies of each page and supporting docum"ms must be submiTted with this form. The grievance must be submitted to the Grievance Cooroinalor in accordance with the time limits of OP 03.02.130.

"jI _,(. ',..rj-"/.'/"·t.e.

, /

.. \"

0 0 RESPONSE (Grievantimcrviewed?

Yes No If No, give explanation. If resolved, explain resolution.)

Respondent's Signature

Date

Reviewer's Signature

Dme

_.=. ;:;:;._.=.....;. =._===t===..==-:::::.:...-_..:_-_._·.c.,.:.:-:: ==·-·;·:-=. c~~~·::=====

D'te Rerul1led t(l.

If resolved at Step I, Grievant ~ign h~r".

Gri~VfLn.t:

RGsaIul'Jon must be· (Ie·sen·beu· nt"lOVe.. Grievanes Signature

Date

-.-----~-------"---------.-----

DISTRIBUTION: White, Green. C1lnH.ry. Pink··Prnc·css iO StC'.p One,; G~)ldeTln)d··Grje."anl

Case 2:05-cv-71318-M(OB-VMM Document 1-2 Filed 0(4/05/2005 Page 7 of 23

Grievance

This gJievance is intended to run against all employees, agents, and agencies of the State of Michigan who have any influence on the composition, laws, policies, practices, and procedures of the Michigan Parole Board, including but not limited t.o the following individuals and entities:

A. Governor Jennifer M. Granholm B. Attorney General Mike Cox C. Pall-iela Caruso, Director ofthe Michigan Department of CotTeetions D. The Michigan Department of Coneclions
E. The Michigan Parole Board, and individually its members:

1. Chairperson John S. RUllitschun
2. Charles Braddock 3. William Slaughter 4. Mmjorie McNutt 5. Marianne Samper 6, George Lellis
7. Miguel BeJTios 8. James E, Atterbury 9. James J. Quinlan
10, Barbara S. Sampson

T, _flJ-L""IA. r(

r-7 , ,# Ie:;;" C',~

complain that the above-named

parties/agencies, by their collective or individual acts and omissions, or by their customs

and policies, have violated my constitutional rights under the state and federal constitu-

tions. Specifically, they have applied parole laws, rules, regulations, policies, procedures,

and practices retroactively in violation ofthe due process and expostfacto clauses,

In support o[my grievance, I state the following:

1.

In 1911r was convicted of a crime and sentenced to life in prison with

the possibility of parole (parolable life)_

2. At the time of my conviction and sentencing, a different parole regime existed than exists today.

3.

At that time parolable lifers had the right to have a personal parole inter-

view at frequent intervals, to be given reasons fora parole pass-over, to have a parole

pass-over treated as a denial of parole for purposes ofjudicial review, and to appeal such

an adverse decision to court. In addition, at that time parolable lifers were reviewed by

the board under the same, or neaTly the same, standards for parole as other inmates with

long indetenninate (tenn-of-years) sentences,

(

(

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 8 of 23

Gl;.evance Page Two

4. At the (ime, many Michigan judges viewed a parolable life sentence as more lenient than a long term-of-years sentence, because parole eligibility begml after just ten years instead of later, but was otherwise the same in viliually all respects.
5. Sinc,," 1994, Michigan's parole laws, policies, practices, and procedures have changed radically for the worse for me. According to the fonner parole board chair, since 1994 "life means life." I believe that since J994 there has becn almost no distinction between parolable lifo and mandatory life in Michigan,
6. The above-named people/agencies bave applied the Jlew parole laws, policies, practices, and procedures retroactively, to my detriment, and in violation ofths due process and ex post/acto clauses ofthe state and fedenll constitutions.
J tlJerefore request that r be reviewed for parole under the parole regime and the
parole standards that existed When I Was convicted and sentenced.

Date: -'-/,) ~/ ,2004

Case 2:05-cv-71318-MOJ\oB.f.-TVJMNMD CMODoREcRuMEmCeOnTtRI1OA-2NNALDFFUileAdMC0'4·l/r0-5.r/2y005 Page 9 of 23

DATE:

APRIL 06, 2004

TO:

120287 McCULLUM

4C 18L

SUBJECT: HE,JECrED GRIEVANCE NRF 0404 0437 2SG

Your grievance is being returned to you with a brief explanation as to why it will not be processed at this time. R.e-submit your

grievance if the problem can be remedied in a timely fashion. If you have further questions about the grievance policy and procedure, please c'onsult PD 03.02.130 and 01' 03.02.130, much of which is summarized below.

o Your grieVllnce failed to Include sufficient informa.tion: State problem in the space provided. Additional pages may be used. Four copies of each additional page must be submillcd with your grievance form.

( ) The statement provided is iIIegibk:

( ) Grievance lacks: time, datc or amount of information relative to issue being grieved:

( ) Grievance lacks: Grievant's signature, number, facility or housing unit:

( ) Grievance lacks identity of the staff member addressed in this g1'ievance:

() Grievance is a property/money issue and does not include documentati(m to prove ownership, value, receipt or payment: ( ) A clear cnneise statement:

.

Untimely/Incomplete }'orm

() Grievance was not written and forwarded to the Grievance Coordinator within nine(9) business days of the incident being grieved:

Lack of Jurisdiction/Extraneous Informll!lon () You must forward the grievance to the institution being grieved: (X) l'I.itF. bas no jurisdiction over:
( ) Grievance i. based on outside informatiotl, there is no evidence to support you claim.

.

Frivolo~s/MuJtiple Issue/Other

( ). The grievance includes issues which are frivolous, clearly without merit or based 011 extraneous information: ( ) Multiple issues:

( ) Prohibited longuage:

( ) There was no attempt to resolve before filling grievance.

.'.

..

Duplicate

(X) Grievallce i. a duplicate and/or repetitive to a b>rievance previously med:

.

( ) Thi~ issue has been previously addresses hy the Grievance Coordinator. The grievance will not be processed further and will be

tiled for reference only.

MOdified Access () You are on·Moditied Access Status and have obtained tho attached·' b'Tievance from a source other that the Grievar.cc Coordinator. ~) Your Grievances. will be monitored for the next thirty(30) days. Any continued failure to adhere policy 03.02.130 will result in \IIotliJied Access status.

Non-grie\'able . ) Due to th~ expertise of their profession, decisioils made by Medical Personnel will not be questioned by this office.

: ) Deci.ions made lcarillgs pr()ce~s,

by

Hearings

Officers

in

major

or

tninor

misconduct

hearings

and

issues

directly

related

to

misconducts

01'

the

.) Decisiotls made· by Hearings OffIcet·s in hoarings conducted pursuant to Administrative Rule 791.3315 regarding proposed

:ccurity reclassification to segregation, visitor restrictions, special designations, and high or very high risk classification.

) The contents of Administrative Rules, Department Policy Directives and Procedures or Director's Office Memoranda.

) Two 01' more prisoners may 110t jointly Jile a single grievance regarding an issue of mutual impact·or submit identical or duplicate

ndividual grievances regardi.ng a givcn issue or as an organized protest. You may not file a grievance on the behalf of others.

) Decisions made by the Parole Board.

oC

) The grievance contains language that is profane, that represents a threat of physical ha1Tn or demeans the character, race

thnicity, physical appearance, sex, religion, national origin or offends any person will not be processed. UNLESS THE NECESSARY CORRECTION(S) IS MADE YCUR GRIEVANCE WILL NOT BE PROCES~ml)

APR 0 7 2004 Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005
, 'MICHIGA,N DEPARTMENT OFCORRL.; nONS
PRISONER/PAIWLEE GRIEVANCE APPEAL FORM
Dale Receivs-?,.py Grievance Coordinator
at Step II; -r-~::Jf..E.._"_,,.....

Page 104Ko:flJ·242348 tll97
C5J·247 I!

INSTRUCTIONS: THIS FORM [S ONLY TO BE USED TO APPEAL A STEP I GRIEVANCE,

Th(: white copy of the Prisoner/Parolee Grievanc(~ Form CSJ-247 A (or the goldenrod copy if you ~>]"nt been provid(~d

with a ~tep I response in a timely manner) MUST be attached to the white copy of thi:.t:£!l~jf~r~, 'IiI at both Step

Il and Step III,

e; CC ~(,:,~ , \\

~fd'b~!¥r~tI;\l'I&\1:l ~, If you "hould decide to, appeal the Step' I grievance ..espOl1se to Step II, your appeal

.

" "

dtj 19:/0 l'>J.tE ditaleLtb,st_"_ by

t:- ' Ifit is not submitted by this d~1 Jl\lllk cO~~i~o~(~*~1 ated.

[f you should decide to appeal the response you receive at Step II, you should send yo \lI6llilP1\,f~~~th,;"i;;ector's

Office, 1',0, Box 30001; Lansing, Michigan, 4g909,

",

---::---

r.:---:::--:-.---------' "c-;--;-----..--:-:-:-:----r.--:-:--;--:--r;:---;;-;--;-;----,-:::-,-",-._"",

Narlle (fif::;t, Ia.st)

Nurnbt:!f

In5;.(itution Lock NUl1l.hc.r Date of Incident Today's Dilte

STEP II,-Response
5"'8 .4rf, ~".,vrer,

Dale Received by Step 1I Respondent:
~-r..op

# , 6 f - Date Returned to Grievant:

Dale

.tf.-If..,

=,",",=,_,=,","",=,".,:.:.:=="'''"'="'--=========,_=-=-=__._=,_.,:;=,;;,;.-:::::c:;':'"'''' "'-"-

NOTE: Only a copy of this appeal and the response will be returned to you.
STEP III--Director's Response is attached as a separate sheet.
_ _ _'w................ ,·
_."",-' ......'.""""',.
If you find the Step III Director's response unsatisfactory, you have the option of referring the grievance to the Office of Legislative Corrections Ombudsman, 4th Floor, Capitol Hall, 115 W. Allegan, Lansing, Michigan, 48913.
DISTRIl3UTION: White--CentraIOmee; Green Canary ..Stepl'u; Pink-·Step II; Goldenrod--Grievnnt

Case 2:05-cv-71318-MO(B-VMM Document 1-2

( Filed 04/05/2005 Page 11 of 23

THffiD STEP GRlEVANCE RESPONSE

Eric McCullum, 11120287 NRF, 04-04-00437, 28C
This invcstigator has reviewed the record presented wjlh the appeal 10 step three. All relevant intonnation was considered. Based on this review, this writer finds the grievance was untimely l1Ied, violating the provisions of Policy Directive 03.02.130, titled "PrisoncrlParolce Grievances" and Operating Procedure 03.02.130, tilled "Prisoner/Parolee Grievances."
The grievance record supports the date of incident is coded as "Ongoing," whicli docs not represent a specific date of an alleged incident. The grievance was not received at step one un!i I 4-5-04. The Grievant failed to present any evidence to support he was prevented /Tom timely filing his grievance due to circumstances beyond his control. Furthermore, the responses provided at step one and two adequately address the merits ofthe main issue grieved. Based on this finding, we will not address the merits of the grievance further.
This grievance appeal is denied.

Approval Signature:
#4/5-26-04128C
c: Warden
Grievant

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 12 of 23

,·r··· ,.
Case 2:05-cv-71318-MOB-VMM Document 1-2 MICHIGAN DEPARTMENT OF CORRECTIONS PRISONER/PAROLEE GRIEVANCE FORM

Filed 04(/0' 5/2005

Page 13 of 23
4835"4241 10/94 CSJ-247A

J,

•••• j

Date Received ~at~S;t;ep~I~ii~}iEiiTI]f23m;G~ri~e~va~n~c~eIdentifier:

I..;I~--L-L-LI-L...J.I_·.

.

L

..

L

-

L_I

L

.

--Lil_~":Li ,.'L.1"'iJ..1:.,.iJ..i

...J

// ,. "I'...i~ ,~t"1. f'·.·(.r'):·t,/,(.

J""t1 / '}~/...)/'/II,. ,.'.".

"
{,.>,'

''1I"";

.

'.1""r"

'

What attempt did you make to resolve this issue prior to writing this grievance? On what date? _ _ _ _ _ _ _ __ If none. explain why.

J,atc problec\ clearly. Use separate grieVatlCe fOlm for each issue. Ad~itional pages. using plrun paper. may be used. Four copies of each page and supporting documents must be submitted with this fonn. The grievance must be submitted to the Grievance Coordinator in accordance with the time limits of OP 03.02.130.

,

Ii.)l"c' [fS"e.

,1·/ '-., /t'

I: /.. <: ( (

·1..,.··

.....

..., .'. ,.•~.,." ••._'.", ...•..•,...""..,." . " ...,. ···,·····"w· ., ."., ." .......,•.. '.~ ,......,._... .... ~.,,~"

DYes D RESPONSE (Grievant Interviewed'}

'...

·:'i

No If No. give explanation. If resolved. explain resolution.)

/ / ..'.. I l./ ,,'..

;.;..

,/.~.}"

f.·1 I .;..

""
!.

I.' I'
) .{ .. ,.,.I. ·... 1.)

,I
./

,.!,'r", ...

!'/.~."·i'./·I?·'':·',.'l,

Respondent's Signature

f

/

Respondent's Namc (Print)

Working Title

/" ...

I.

/"

.. ,; '. ., \.\. .. l i

\' , ,:.j" ,j

) \, .. ,I '

Reviewer's Signature

Reviewer's Name (Prim)

Da.. Returned to l 'i Grlevan~''\ . l// ll~II,'1
! iii rl., I I

If resolved at Step I, Grievant sign here, Resolution must be described above. Grievant's Signaturc

DISTRIBUTION: White, Groon. CIlrllU'Y, Pink··Procoss to Slep One; GOldenrod--Grievant

~ :'
.."1 ,1r! ,.!! f Date Working Title
Date

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 14 of 23
HESSELL, GERALD Ai50163 DRF 9578 ONGOING 6/29/04
Step I Grievance, in accordance with PD 03.02.130; Prisoner Litigation Reform Act (PLRA) and my First Amendment Right.
This grievance is intended to run against all employees, agents and agencies of the
State 01 Michigan who have any influence on the composition, laws, policies, practices, and
procedures of the Michigan Parole Board, including but not limited to the following individuals and entities:
A. Governor Jennifer M. GraI1holm B. Attorney General Mike Cox C. Patricia Caruso, Director of the Michigan Department of Corrections D. The Michigan Department of Corrections E. The Michigan Parole Board, aI1d individually its members:
1. Chairperson ,Iohn S. Rubitschun 2. Charles Braddock 3, William Slaughter 4. Marjorie McNutt 5. Marianne Sam per 6. George Lellis 7. Miguel Berrios 8. James E. Atterbury 9. James J. Quinlan 10. Barbara S. Sampson
I, JerrY. blillilHessell #A1501Q;j, complain that the above-named parties/agencies, by their collective or individual acts and omissions, or by their customs aI1d policies, have violated my constitutional rights under the state and federal constitutions. Specifically, they have applied parole laws, rules, regulations policies, procedures, and practices retroactively in violation of the due process and ex post facto clauses.
In support of my grievance, I state the following:
1. In 1l:3T6, I was arrested and subsequently convicted of a crime and sentenced,
1977, to life in prison with the possibility of parole (parolable life).
2. At the time of my conviction and sentencing, a different parole regime existed than exists today.
3. At the time, parolable lifers had the right to have a personal parole interview at frequent intervals, (under Parole Board Memo 8.02, the board interviewed parolable lifers at the conclusion of seven years and every three years thereafter, which created a "7+3+3 ... " mandatory hearing schedule. Between 1977 and 1982, during the periods of my conviction and sentence the parole statute did not govem the frequency of parole hearings. Instead, the MDOC devised its own rules to conduct parole hearings by, in 1977, promulgating Administrative rule 791.7710, which required the parole board to interview me after seven years, again after three years and every year thereafter, creating a mandatory interview schedule of "7+3+1+1..."), to be given reasons for a parole pass·over, to have a parole pass· over treated as a denial of parole for purposes of judicial review, aI1d to appeal such an adverse decision to court. In addition, at that time parolable lifers were reviewed by the board under the same, or nearly the same, standards for parole as other inmates with long indeterminate (term,

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04(/05/2005 Page 15 of 23

of-years) sentences.

4. At the time, many Michigan judges viewed a parolable life sentence as more lenient than a long tarin-ai-years sentence, because parole eligibility began after just ten years
instead of later, but was otherwise the same in virtually all respects.

5. Since 1994, Michigan's parole laws, polices, customs and procedures have changed radically for the worse for me in Govemor Engler's response to an ex-convict being released and committing heinous crimes against society. According to the former parole board chair, since 1994 "life meanS life." I believe that since 1994 there has been almost no distinction between parolable life and mandatory life in Michigan.

6. The above-named people/agencies have applied the new parole laws, policies,

practices, customs and procedures retroactively, to my detriment, and in violation of the due

process and ex post facto clause of the state and federal constitutions.

.

I therefore request that I be reviewed for parole under the parole regime and parole standards that existed when I was convicted and sentenced.

Sincerely,

Dated: June 6, 2004

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 16 of 23

Michigan Department of Correction FIRST STEP GRIEVANCE RECEIPT

4835-0976 CAJ-976 11194

DATE:

7/1/04

TO:

HESSELL 150163

FROM;

Grievance Coordinator, R.DEVERS

"

SUBJECT: Receipt fix Step 1 Grievance

Your Step 1 grievance regarding PAROLE ISSUE OTHER was received in this ofiJce on 7/1/04 and you ~hould receive a response no later than 7/22/04. If you have not received a response by this date, or agreed to
an extension, you 1l1ay submit a written request for an appeal form to this office. You will need to notc Oll your request the grievance identHier that was assigned to your grievance. That idel1tificr is: DRF-04-07-0993-16.Z-

StepC'laGseric2v:l0ln5c-c,cvR-7e1s3p1o8ns-Me O( B-VMM NAME & NUM8ER Gerald L. Hes~ell, #150163

Document 1-2 Filed 04/05/2005 Grievance ID# DRF·04·07·0993· I6Z

Page 17 of 23

RESPONSE (GrieV:lnt Interviewed? DYes D No If No, give explanation. If re.olved, .'plain ,·esolution.)

The grievant is a prisoner sentenced to life under MCL 750,83 Assault to Murder, MeL 750.529 Robbery Armed, and MeL 750317 Murder 2"d Degree, by the Honorablc Waltcr p, Cynar. The grievant was sentenced 011 June 10, 1977. With 423 d~.ys ofjail time credit, his life sen.lel1ce began on April 13, 1976, This offence was committed on Apl'il12, 1976. According 10 Michigml DepaJtment of Corrections Policy Directive 06.05.104(1)( I) "Prisoners SC11tcnced for an offense committed before October I, 1992, are eligible for parole after serving ten calendar years of the life sentence," The grievm1t became parole
eligible after ~erving 10 <.:~lelldar year$ of his life sentence. He reached this thresho.ld on April 13, 1986.

Mel, 750.83, MCL 750.529, and MCL 750.314, all state that anyone (bund guilty of these felonies will be punished by imprisonment in the state prison for life or for any term of years. Judge Cynar sentenced the grievant to Ii fe, not U (enn of years.

Th: Parole Bom'd has adhered to the law in the grievant's case according to MCL 791.234(6)(a) whieh states "at the conclusion of 10 calendar years of the prisoner's sentence and thereafter as determined by the parole board until the prisoner is paroled, discharged, or deceased, and in accordance with the procedures described in subsection (7), 1 111ember of (he parole board shall interview the prisoner." In May of 1984, the Parole eOl1ducied the grievant's iniliallifer interview. Thereafter, the grievant has reeeived an interview in 1987, 1993, and 1999, ,The Parole Board recently reviewed the grievant's file in February of 2003 and by majority vote had no interest in taking action at this time, The grievant was sent u Notice tif Decision dated March 13,2003, with a decision date of Febl'llary 20, 2003, stating thk

Parole is not guaranteed when a Lifer becomes parole eligible. When the Parole Board reviews a life sentence, a number offactors arc taken into consideration. They include the nature m1d circumstances ol'lhe offense, any prior criminal history, the prisoner's risk factors for future assaultive behavior and property offenses, and the prisoner's institutional conduct and program involvement over the years.

TIle grievant cannot usc the Michigan Department oCCorrections Prisoner/Parolee Grievance Form to grieve the actions of the H0110rable Jennifer Granholm, Governor, or Mike Cox, Attorney GeneraL The writer can only speak for the Michigan Deparbnent of Corrections, Office of the Parole Board, and their actions. Through this investigation it is found the Michigan Parole Board has adhered to the Michigan Compiled Laws in the grievmlt's case. It is found this grievance has no merit.

Grievance denied.
Respondent's Name (I,,'int)

7/13/0¥

~~~1i-!-1)/["1

Oat.

ReVIewer's Sigmlture

Li fer/Col11l11utatig,l1,C 00!.2 Dave Kleinhardt, Manager

Wo.-king Title

Reviewer'S Name (Print)

DlIte Returned to
Grievant:

If resolved at Step I, Grievant sign here, Resolution must be described above. Grievant's Signatnre

.,----
Bate

y"'IPD JUL 212004 ',' '" ,

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04./05/2005 Page 18 of 23 ,,'.;,,"\ I'", 0'

MICHIGAN DEPARTMENT OF CORRECTIONS

J : i:: ~B3j;::42~S 1:~197

I PRISONER/PAROLEE GRIEVANCE APPEAL FORM

Dale Recel'vedby Gn'evance ('.oord'malar al Step II:

G .

., I

nevance Identifier.

Hessell 150163
DRFI04070I99316Z
II. I.I.I

i,l', ::,!''-''CSJ:!41B

I ,.
JIIIii,iJ.,:II

'.,'.I2I6 I , ,, .

'~ORM r..Q.RJE.VANJ--:i~6~~j~I(}L INSTRUCTIONS: THIS

[S ONLY TO BE USED TO APPEAL A STEP

The while copy of the PrisoocrlParolee Grievance FonT) CS1.247A (or lhe g '\\!'o\)~\)~, ~WJuliiia 01 been provided

with a Slep I response in a tiITIely manner) MUST be attached to Ihe white c dfmlffoml if you a I it at both Step

II and Step III.

AUG II Ll 2J)[)4

If you ,hould decide to appeal the Step I grievance rcspon,c to Slep 11, your appe sh0i/;,\fuI?Jt?ii.lVfOOij.:1 ~

d

(,raREI... iew Plaza

by 07/29/2004 . Ifitisnotsubmit~dbythis~~~~~I~1iII 1!.W~la enninated.

P.O. Box 30003 Lansing Michigan 48909 If you should decide to appeal the response you receive at Step II, you should send your Step III Appeal 10 the Director's

Office, P.O. Box 30003, Lansing, Michigan, 48909.

Name (first, bstJ
tYer4/d

Number

Institu(i~n L(Jck. Number Date ~t'(;lcident Today's D(lIr.:

sSe!, Ir:LS-(J/It'3 OfF tff..7!3 th (Jill 7·(){J~.~t

S~EP V··Rea~(Jnf()rAppeal fle.-'5f1~I1dJ,.,.... i i..4" t!VIL~c!. +l...e iHille. '<t../k M..t~f'I$

It:r:.e. f w4..5, nI <L" (5fv'(. '''' 1177 /.,Jk.., 'i'r,-,!v~;,'" jJ'~d '1vllfy, frtev"'-l/i'{ <t.{f.,,'nq

tdVl4 ~/'1.e-!r<LI\.t- t,;r<'lIld d"l~ $tIn~ /J b'.d.fS., Va.-i11'1 (..<J ..... I wN rJ"«,e';6-I1! "' ..'01 Ii ~r'(f!,

6L~~f'I If}" /'Ii 'tfI.A.rj. }.knll! lJiT4.:rcl 'is ...... "h h4,-sk.r -Iod...., 1-A.tf'.Jop tYn t'/U".an--/ ',.,J,:r~tI

1\1+ ~I'Je I1U:l ri'ilfy ~I' /.It KNW AI2 LDoIlJd AAve....fa S4rve .:28y. y.fltir:J dJ'\. a. j>4'()/'

G b Ltc.
at;,.·</

t;/Q
6.r-(,

'-!Ii'r rn
bAt",:!

,

t!7N1'..:l1.~cJI-H1(',1L!'.!hfru,·l-.e1S:,+C; £t'15')+"t"'J't.>Ii t

j?f."lc4tt:ts I ~;'t:Je5 eNd r" l.es
f?! I!.!Jj {.reb dQ.uf..I.., tt57!1bz,S:l2

,/~ d
we.;-<!

J..t-
11,'1

l:,.ti,.hf l1~d •., 1"'77 w~ 1 fNNG..... c,...a.'sSz:n.J.t/";Z"d.

Date. Received by Step" Respondent:

-:::T4 tfN ,fetE (T:)t-fft( IV
Respondent's Name (Print)

'fL.,
sp()n~~~t"

I2ltA..:ltt../-'k-' I h?/DY' g~it:v~~:~" .d to
--0;;;;;---'''- 1

~9

STEP III-·Reason for Appeal 7M.. l'It't:y;';~I1c:bti M: NS" ~ d I'k", 7'j..., P",,,,,CL(/VNS -;;",.d

C v*,,,,,, 5' fJ.-..,; "'f'<,. &:hf t.,d·/I, i.e. J ·-/od...y ~-~ /fdIf ~ ~"'........ "'\.S 7'-A<?s.t. b.I";:

vxd i'r) /<i'77 /..<.kn 9l"'<--I'..v..nf ;;"'''-''':; ,:.,.f-{41Iy ~,.,./.eI1.<'~' -fo 1""",,.,,1.. 64. I.-A,

£,',4 +h;e .,.-H,+"',de /N. foi/.:lo'

. I

1.. .,,..-C1
I"" £)V'C-

( '?

/<:.'" 6' I' / 1> -

~H~/5l_~,i:iT/'!;'

"

(.1..145
4.. <'('<'

"/'It;::~'..f kin,?

"'pp4u:/

7 7.
•

"E")<' - 'j)CSTJ T.,J -A ("To!) C

v,.t..t... _

,o~ ~ A<r
,,., /..U'"," 1'''''-/''';'')

~P;.dY,,;/I<:':,'.
'-'

NOTE: Only a copy of this appeal and the response will be returned to you.

STEP I1I..Dircctor's Response is attached as a separate sheet.

If you find the Step 1II Director's response unsalisfaclory, you have the option of referring the gl'ievance to the Office of Legislative Corrections Ombudsman, 4th Floor, Capitol Hall, I IS W, Allegan, Lansing, Michigan, 48913.

DISTRIBUTION: Whilc..CcntralOffke: Green· Canary --Step III; Pink.. Slcp II; Goldenrou--Oricvant

': '

Case 2:05-cv-71318-MO( B-VMM Document 1-2 Filed 04/05/2005 Page 19 of 23

Step II Grievance Response Hessel!, Gerald #150163
RI!:SPONSI!: (GrievDnt Interviewed? ClYcs [J No

Grievance ID# DRF-04-07-0993-16Z;
If No, give .xplam.tion. If resolved, explain resolution.)

You are disputing the respon~e YOll received at Step I.
Your Ole has been reviewed at Step II.
You are serving a life sentence tor Assault to Murder, Robbery Armed and Murder 2nd. The response you received at step I was appropriate. Your case has been reviewed in accordance with MeL 79 1.234 (6) (a) and 1'0-06.05.104 (Parole Process)
Grievance denied.

Parole Board Chairperson, John S. Rubitsc.htm Respondent's Name

!) !I-f:- I -{I.-, f:P::tLi CtA"-,-,-"
ondent' Signature

~h?/(ju
~ Date

Case 2:05-cv-71318-MO(B-VMM Document 1-2 Filed 04/(05/2005 Page 20 of 23

THIRD STEP GRlEVANCE RESPONSE

,

, HESSELL

"',,,

,

GEM.• ' WH15(iiJ63

DRF·04·07-00993·16z

The glievant alleges that he was sentenced in 1977 to a life sentence with the possibility of
parole, Grievant ~tIeges that at the lime he was sentenced, a different parole regime existed than exists today. Grievant alleges that as of 1994 there has becn no distinction between parolable life and mandatory life in Michigan. Grievant seeks as relief to be reviewed for parole under the
parole regime and parole standards that existed when he'was convicted and sentenced.

This investigator has reviewed the record presented with the appeal to Step Three. All relevant information was considered. Based on this review, this writer find~ the responses provided at
Steps One and Two adequately addres& the meJits of the main issue grieved.

The record presented with the appeal docs not suggest that further action is justified at this level. The record indicates that the grievant has been given parole consideration as required by PD
06.05.104 "Parole Process", There is no requirement in policy that a prisoner be issued a p'arole
even though he may be eligible for parole.
The grievant has not shown a violation of (Jolicy. This grievance appeal is denied,

Approval Signature: ~:w.:._ k~itj

#7/11-02·04/166

(f

",,_.._

Date:

_~111-/L{,lo¥I.fl".:,;~j~_
II r

cc: Warden Prisoner

I

JS 44 1119C9 ase 2C:0IV5-IcLv-C7O13V1E8-RMOSHB-EVEMTMCOUNTDYIoNWcHuICmHTeHlnstAc1Tl-o2NARos~F:.il.e.:d.w0.:4./.0:a5:/<2.y0::0;5ne:...P'_aDg-=e5_2-1113Iogf 2p3J GEl VJl.IM
The JS~44 civil cover sheEit and the information contained herein neither replace nor supplement the filing and serviC$ of pleadings or other papers as required
by law, except.as provided by local rules of c;ourt. This form, .approved by the Judi¢lal Conference of tha United States in September 1974. is requirad
(or use of the Clerk of Court for the purpose of initiating the civil docket sheet

I. (a) PLAINTIFFS

DEFENDANTS

Kenneth Foster-Bey, John Alexander. Waymon Kincaid, William Sleeper, Robert Weisnaucr, EJic McCullum, Jerry Lee Hessel

See Attached

(bl county of Residence of First Li,tad

Wayne

County of Resldonc. of First Listed

Ingham

NOTE: IN LANO CONDEMNATION CASES, USE THE LOCATION OF tHE

(CI Attorney's (Firm Namo, Address, and relephone Number)
See Attached

Attotneys (If Known)
05-71318

LJ 2 U,S. Gov.rnment
Defendant

o 4 Diversity (lndlcate Citizenship of P~rti~s In Il,m 1111

IV. NATURE OF SUIT CONTRACT

PlacE! an "X" In One Sox Onl
TORTS

0 0 Citizen or Subjoct of a 3 3 Foreign Nation r i nCo

FORFEITtJR8/PENAJ.,rv

IlANKRUPTCY

[15
OTH8R STATUTES

CJ '1 1 0 InsLll'anOO

0 120 Marine

0 130 Miller Act

0 140 Negotiable In$Ul.lfl'lent

0 150 Recovety of

5[1

o~'erpayment and Enforcement of Judgment

161 Medicare Act

0 152 Recovery of DefaUlted Student L.oan!;l
SCJ (E~Cl, Vflt{triiln!;l) 153 R&C(Pvery ot O'it'tll'P~ym.nl Qf Veteran's B9riefits
O§ eo 0 1 Stockholders' Suits 190 Other COr'lt~ct
195 Gontrl;lct Produd Lizl.lliflty

PERSONAL INJURY
0 31 0 Aitplane 0 315Airplana Ptodl,Jct
Liability 0
320 A$S/ll,Jlt Libel And Slander
0 330 fli!Q9n:11 Emptc)lIiII'5'
I,..lolIbilily
0 340 Marif'le 0 345 Manna Product
Litlbltlty 0 350 Motor Vehicle
0 355 Motor Vehicla
PrOduot l.iililbility
0 360 Other Personal
Injury

ReAL PROPERTY

CIVil RIGHTS

0 ~10 L.~nd Condamnation 0 ~20 Foreclosura 0 23Q ~lInt LI!I2Istl &. Ejedment 0 240 forb II) Land 0 24$ Tort Product Liability
0 ,290 All O!t'ltlt Real ProP9rty

0 441 Voting 0 442 Employment
D 443 HCJI,i$lngl
Aerommod9~I(ln~
0 444 Welfare 0 440 Other Civit Rig

PERSONAL INJURY 0 t'i10 Agriculture

tJ 422 APPMI 26 USC 1058

0 362 Parsoncr.llnJuryF 0 620 Other Food & Drug

Mad. Malpraotice 0 625 Drog R"latC!lu StllzlJre 0 42.3 Withdrawal

o 365 ~.ro~Du6\~laIn¥II,& •

[1

of PruptYly 21: 681 630 Liquor Laws

28 USC 157

0 368 A$M$tos Personal 0

Injury Produ(;t

Liability

0

640 R.R. & TM::k 650 Airlinl) Regs.

D 860 occupptlonal

PERSONAL PROPERTY

Safety/Health

o 370 Other Fraud o 371 Truth In Landing

0 eao Othar

D 3aO Other Personal

","OR

Property Damill9~
0 385 property Damege

D

Produd Li@ili!), 0

PRISONER PoTITIONS

0

0 51 0 Motion$ to Va!';~te

SentanC(I

0

HaMel\! Corpus:

"", 71 0 FiliI Let/or Sl'l1d.m:ls
720 l~l)or/Mgmt. Relations
730 U~~.;InMgmL R~portlra
s Pisl:ilc5Ura Act
740 Rih\ilw{t~ Lebor Act

30 GElneral 5 Death PM~lty 540 andam\.l6 &. ()th~r

0 if)O Other Labor LiUgation
D 791 Empl. Ret Inc.

55 ivil Rlgtll:$

SeC\.lrity Act

P(lson Condition

PROPERlY RtGHTS

0 820 Copyrighl.$
D 830 Patont 0 840 Tr~damark

SOCIAL SECURITY

0 0

1l<i1 H IA (1 395ff)
ae2 Black Lung (923)

0 863 DIWCfDIWVV 14Q5(9))

CJ0 864 SSID Tille XVI 865 RSI (40'(MI

1!5DSRAL TAX BUITS
o 870 T,a:xe, (U.S. Plaintiff
Of Defendant)

o 871 IRS-Thil'd Party 26 USC 7609

o 400 $1<:1le (~$.apportlOnment o 41 0 Antitrust
l.J 430 Banks and i3;)nKing Ll 450 Commercl1l1CC
o 480 DooOl1<'11101'
D 470 Ri:!ckctliltlr InnUtltlood &
CO!lUf/t Of!jarllzaUOll8
o 910 SeleotivEI Servi(;e o 850 Sacu rltlli!~ICl'lm mod iUI!~1
El(ctlanae
o 875 CU$tome:r Challenge 12 USC 34'10
o 691 Agricl,Jltural Act::; o 892 economic $labilizi:I\it:.l(l AoL o 893 ~n ... iranmemlal Ml:ltters
D S94 Energy Allocation ~\ct
o 895 Freedom of
InformMiol' Act
o (loa ~lt:~~~~~ Unn~f !iqu2I1 ACI.lC!l~1I to JlJtl~IC.e
D 950 Constitutionality 01 51a\0 Stat~jte$
o 890 rntIer $191lJiO'1' Adion~

(PLACE AN "X" IN ONE a

0 tigln(11

2 Remove

Procalleding

StllltoC

SSIB:tE

AppC.'(ll to
o District 7 Judge from
MEI~i$tr"'te-

. CAUSE OF ACTION (Cita thG u.s. Civil Statute under which you are filing lind write brief ststement or caU$EI.
00 not <;ita jurisdIctional $l~tl,lteB unless div~miity.j

See Attach«J

VII. REQUESTED IN COMPLAINT:
•• Viii. RELATED CASE(S) instruclionsl:
IF ANY
DATe.

$ DEMAND
JUDGe Hon. Avern Cohn
SIGNATURE OF ATTORNEY OF RECY'"
l>J~ l2..;'IIW

~TURY DEMll.ND:

~OCKET
NUMBER

04-CY·71090-DT

PURSCUasAeN2:T05T-cOv-7L1O3C18A-MLORBU-VLMEM83.1D1ocument 1-2 Filed 04/05/2005 Page 22 of 23

1.

Is this a case that has been previously dismissed?

If yes, give the following information: Court: ___________________________________

DYes
[gJ No

Case No.: ____________________

Judge: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~_

2.

Other than stated above, are there any pending or previously discontinued or dismissed companion cases in this or any other court, including state court? (Companion cases are matters in which

oIKl Yes No

it appears substantially similar evidence will be offered or the same

or related parties are present and the cases arise out of the same

transaction or occurrence.)

If yes, give the following information: Court: Eastern District of Michigan

Case No.: 04·CY·73953·DT

Judge: Hon. Robert H. Cleland

Notes: This is a 1983 class aClion; the previous cases were individual actions brought .in habeas.

Case 2:05-cv-71318-MOB-VMM Document 1-2 Filed 04/05/2005 Page 23 of 23
Attachment for Civil Cover Sheet
l(a) DEFENDANTS: John S. Rubitschun, James Atterberry, Miguel Berrios, Chill'les Braddock, Stephen Deboer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso
l(c) Attorney's Finn Name, Address and Telephone Number Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe St. Ann Arbor, MI48109-1215
VI. CAUSE OF ACTION This action is for declaratory and injunctive relief under 42 U.S.C. Section. 1983. The plaintiffs are prisoners in the custody of the Michigan Department of COiTections who were sentenced to parolable life tenns before October 1, 1992. The plaintiffs challenge the defendants' retroactive use of parole standards and parole laws and policies that were not in effect when the plaintiffs were convicted. Such use violates the ex post facto and due process clauses of the United States Constitution.

 
 Case 2:05-cv-71318-MOB-VMM Document 102 Filed 09/28/2005 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________________

KENNETH FOSTER-BEY, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

File No. 05-CV-71318-DT Hon. Nancy G. Edmunds

JOHN S. RUBITSCHUN, et al., in their official capacities,

U.S. Mag. Judge Virginia Morgan

Defendants. ___________________________________/

Michigan Clinical Law Program By: Paul D. Reingold (P-27594) Attorneys for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Office of the Attorney General By: Kevin Himebaugh (P-53374) Attorneys for Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Consolidated Companion Case

ANTHONY LYNCH-BEY, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

Hon. Nancy G. Edmunds [File No. 05-72378-DT]

JOHN S. RUBITSCHUN, et al., in their official capacities,

U.S. Mag. Judge Virginia Morgan

Defendants. ______________________________________________________________________________

ORDER DISMISSING CLAIMS AGAINST THE DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES AND AMENDING THE CASE CAPTION

1

Case 2:05-cv-71318-MOB-VMM Document 102 Filed 09/28/2005 Page 2 of 2
The Foster-Bey plaintiffs and defendants having stipulated that because the plaintiffs seek only declaratory and injunctive relief, their claims are properly brought against the defendants only in their official capacities,
IT IS ORDERED that the plaintiffs’ claims against the defendants in their individual capacities are dismissed, and that the case caption be amended accordingly.
SO ORDERED.
s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: September 28, 2005 I hereby certify that a copy of the foregoing document was served upon counsel of record on September 28, 2005, by electronic and/or ordinary mail. s/Carol A. Hemeyer Case Manager
2

 
 Case 2:05-cv-71318-MOB-VMM Document 106 Filed 10/26/2005 Page 1 of 4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________________________

KENNETH FOSTER-BEY,

JOHN ALEXANDER,

WAYMON KINCAID,

File No. 05-CV-71318-DT

WILLIAM SLEEPER,

ROBERT WEISENAUER,

Hon. Nancy G. Edmunds

ERIC MCCULLUM,

GERALD LEE HESSEL,

U.S Mag. Judge Virginia Morgan

on behalf of themselves and all others

similarly situated,

Plaintiffs,

vs.

JOHN S. RUBITSCHUN, Chair, JAMES ATTERBERRY, MIGUEL BERRIOS, CHARLES BRADDOCK, STEPHEN DEBOER, ENID LIVINGSTON, JAMES QUINLAN, MARIANNE SAMPER, BARBARA SAMPSON, ARTINA HARTMAN, in their official capacities as members of the Michigan Parole Board, and PATRICIA L. CARUSO, in her official capacity as director of the Michigan Department of Corrections,

Defendants. ___________________________________________/

ORDER GRANTING CLASS CERTIFICATION

The plaintiffs filed a motion for class certification with their complaint. The Court

deferred consideration of the motion until the defendants’ motion to dismiss was decided. The

plaintiffs then renewed their motion, and the defendants concurred in it. Accordingly,

IT IS ORDERED that the plaintiffs’ motion for class certification is granted, with the

plaintiff class, for purposes of the Foster-Bey case, to be defined (at least for the present time) as

follows:

All parolable life inmates in the custody of the Michigan Department of Corrections who were convicted before October 1, 1992, and whose parole the “new” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred.

1

Case 2:05-cv-71318-MOB-VMM Document 106 Filed 10/26/2005 Page 2 of 4
For purposes of this class definition, the “new” parole board refers to the board that came into existence pursuant to the 1992 statutory changes in parole, and that gradually took over from the old board in the period from 1992 to 1994. If further refinement of the class definition is needed, including the creation of sub-classes, that issue will be addressed when and if the parties raise it after discovery.
The Court finds that the proposed class meets the requirements of Fed. R. Civ. P. 23(a), namely that (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The Court also finds that the proposed class meets the requirements of Fed. R. Civ. P. 23(b)(2), namely that the parties opposing the class have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Notice to the class may be provided by posting in all MDOC facilities where parolable life inmates are incarcerated.
SO ORDERED.
s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: October 26, 2005 I hereby certify that a copy of the foregoing document was served upon counsel of record on October 26, 2005, by electronic and/or ordinary mail. s/Carol A. Hemeyer Case Manager
2

Case 2:05-cv-71318-MOB-VMM Document 106 Filed 10/26/2005 Page 3 of 4

Approved as to form and content:
/s/ Paul D. Reingold Paul D. Reingold (P-27594) Attorney for Plaintiffs

/s/ for Kevin R. Himebaugh Kevin R. Himebaugh (P-53374) Attorney for Defendants

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH FOSTER-BEY, JOHN ALEXANDER, WAYMON KINCAID, WILLIAM SLEEPER, ROBERT WEISENAUER, ERIC MCCULLUM, GERALD LEE HESSEL, on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

File No. 05-CV-71318-DT Hon. Nancy G. Edmunds U.S Mag. Judge Virginia Morgan

JOHN S. RUBITSCHUN, Chair, JAMES ATTERBERRY, MIGUEL BERRIOS, CHARLES BRADDOCK, STEPHEN DEBOER, ENID LIVINGSTON, JAMES QUINLAN, MARIANNE SAMPER, BARBARA SAMPSON, ARTINA HARTMAN, in their official capacities as members of the Michigan Parole Board, and PATRICIA L. CARUSO, in her official capacity as director of the Michigan Department of Corrections,

Defendants.

CERTIFICATE OF SERVICE

I certify that on October 25, 2005, I electronically filed the order granting class certification with the clerk of the court using the ECF system, which will send notification of such filing to the following:
Kevin Himebaugh (P-53374) Office of the Attorney General
Corrections Division P.O. Box 30217
Lansing, MI 48909
3

Case 2:05-cv-71318-MOB-VMM Document 106 Filed 10/26/2005 Page 4 of 4

I also certify that I have sent the same pleadings by U.S. mail to the following non-ECF participants:
Anthony Lynch-Bey #146972 Saginaw Correctional Facility
9625 Pierce Rd. Freeland, MI 48623

Dated: October 25, 2005

/s/ Paul D. Reingold Paul D. Reingold Attorney for Plaintiffs

4

 
 Case 2:05-cv-71318-MOB-VMM Document 142 Filed 07/03/2007 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

__________________________________________ KENNETH FOSTER-BEY, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

File No. 05-CV-71318-DT Hon. Marianne O. Battani

JOHN S. RUBITSCHUN, et al.,

U.S. Mag. Judge Virginia Morgan

Defendants. ___________________________________________/

AMENDED ORDER OF CLASS CERTIFICATION
The Court granted class certification on October 26, 2005. At that time the order defined
the class provisionally, subject to change after discovery, when and if the need for change was
raised by the parties. The parties having now stipulated to an amended class definition,
IT IS ORDERED that the plaintiff class be re-defined as follows:
All parolable lifers in the custody of the Michigan Department of Corrections who committed crimes (for which they received a parolable life sentence) before October 1, 1992, and whose parole the “new” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. Excluded from this definition are so-called “drug lifers” who were convicted of distribution or possession of controlled substances, regardless of whether the crime was originally one subject to parolable life or one converted to parolable life at a later time.
For purposes of this class definition, the “new” parole board refers to the board that came into
existence pursuant to the 1992 statutory changes in parole, and that gradually took over from the
old board in the period from c. 1992 to 1994. As before, if further refinement of the class
definition is needed, including the creation of sub-classes, that issue will be addressed when and
if the parties raise it.
The Court finds that the proposed class meets the requirements of Fed. R. Civ. P. 23(a),

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namely that (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The Court also finds that the proposed class meets the requirements of Fed. R. Civ. P. 23(b)(2), namely that the parties opposing the class have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Notice to the class may be provided by posting in all MDOC facilities where parolable lifers are incarcerated.
SO ORDERED. s/Marianne O. Battani Hon. Marianne O. Battani U.S. District Judge Dated: July 3rd , 2007

Approved as to form and content:
/s/ Paul D. Reingold Attorney for Plaintiffs P-27594

/s/ Kevin R. Himebaugh Attorney for Defendants P-53374

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH FOSTER BEY, ET AL.,
Plaintiffs,
v.
JOHN S. RUBITSCHUN, ET AL.,
Defendants. /

Case Number: 05-71318 HON. MARIANNE O. BATTANI

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court are cross-motions for summary judgment. The Court heard oral argument and at the conclusion of the hearing, took this matter under advisement. The Court met with the parties for a status conference on June 28, 2007, for additional clarification of the issues. For the reasons that follow, the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' motion. I. INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiffs, Kenneth Foster-Bey, John Alexander, Waymon Kincaid, William Sleeper, Robert Weisenauer, Eric McCullum, and Gerald Lee Hessell,1 filed this class action against members of the Michigan Parole Board, John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James

1All the named representative, except Weisenauer, were convicted of seconddegree murder in state court before October 1, 1992, and sentenced to life in prison. Weisenauer was convicted of first-degree criminal sexual conduct. All remain in the custody of the Michigan Department of Corrections.

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Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, and the Director of the Michigan Department of Corrections (“MDOC”), Patricia Caruso, seeking declaratory and injunctive relief. Plaintiffs bring suit under 42 U.S.C. § 1983, alleging that changes to the parole law and policies made in 1992 and 1999, violate the Ex Post Facto Clause of the United States Constitution, see U.S. CONST. art . I, § 10, cl. 1, and the Due Process Clause, see U.S. CONST. amend. XIV, § 1. (Compl. ¶¶ 114-17).
Specifically, Plaintiffs allege that the amendments, viewed collectively, violate their rights. At the time they were sentenced they were entitled to parole review every other year, (Compl., ¶¶ 94-95); an in-person hearing (Compl., ¶¶ 96-97); written reasons for denial (Compl., ¶¶ 98-99); and judicial review of "a statement of no interest or a pass-over" (Compl., ¶¶ 100-03). Further, Plaintiffs allege that their rights have been violated by the change in the Michigan Parole Board from a civil service entity to one under the direct authority of Michigan's executive department (Compl., ¶¶ 104-05). See Doc. No. 44, Opinion and Order Granting in Part and Denying in Part Defendants' Motion to Dismiss, p. 2.
The case originally was assigned to Hon. Nancy G. Edmunds. Defendants subsequently moved to dismiss the Complaint on numerous grounds. Although Judge Edmunds dismissed the due process claim, the motion was denied as to Plaintiffs’ ex post facto claim. In November 2006, Judge Edmunds disqualified herself, and the action was reassigned to the undersigned.
Now before the Court are cross-motions for summary judgment on the remaining claim. Because Defendants again advance an argument based on res judicata, the Court includes the previous discussion of the issue, wherein Judge Edmunds noted that
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the Court "must examine the cumulative changes in the parole procedures since an
inmate's conviction." Id.
A state cannot continuously make minor changes in the parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the Ex Post Facto Clause. For example, a state makes change A to the parole procedure after Inmate is convicted. Inmate brings a suit challenging A, but a court finds that it does not create an ex post facto law. The state subsequently makes changes B, C, and D. Inmate is not precluded from bringing a Constitutional challenge. And, importantly, the court must be able to compare the original parole policy with the new policy (which includes change A as well as changes B, C, and D) to see if there is a sufficient risk of increasing the measure.
Id. at n.10.
Prior to reassignment, Plaintiffs' motion for class certification was granted. The
order defined the class provisionally, subject to change after discovery, when and if the
need for change was raised by the parties. See Doc. No. 142. The parties
subsequently stipulated to an amended class definition, which reads as
follows:
All parolable lifers in the custody of the Michigan Department of Corrections who committed crimes (for which they received a parolable life sentence) before October 1, 1992, and whose parole the “new” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. Excluded from this definition are so-called “drug lifers” who were convicted of distribution or possession of controlled substances, regardless of whether the crime was originally one subject to parolable life or one converted to parolable life at a later time. For purposes of this class definition, the “new” parole board refers to the board that came into existence pursuant to the 1992 statutory changes in parole, and that gradually took over from the old board in the period from c. 1992 to 1994. As before, if further refinement of the class definition is needed, including the creation of sub-classes, that issue will be addressed when and if the parties raise it.
See Doc. No. 142, Stipulation and Order of Class Certification.
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II. STANDARD OF REVIEW Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment
may be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” As the United States Supreme Court has ruled:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Hager v. Pike County Bd. of Educ., 286 F.3d 366, 370 (6th Cir. 2002). “[T]he burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party carries that burden, the burden then shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. FED. R. CIV. P. 56(e); Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). “The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant’s favor. See Hunt v. Cromartie, 526 U.S. 541,
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549 (1999); Sagan v. U.S., 342 F.3d 493, 497 (6th Cir. 2003). “A fact is ‘material’ and precludes grant of summary judgment if proof of that fact
would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (citation omitted) (quoting Black’s Law Dictionary 881 (6th ed. 1979)). To create a genuine issue of material fact, the nonmovant must do more than present some evidence on a disputed issue.
There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmovant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249-50. “No genuine issue of material fact exists when the ‘record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The evidence itself need not be the sort admissible at trial. Tinsley v. General Motors Corp., 227 F.3d 700, 703 (6th Cir. 2000). However, the evidence must be more than the nonmovant’s own pleadings and affidavits. Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001). The mere existence of a scintilla of evidence in support of the non-movant is not sufficient; there must be sufficient evidence upon which a jury could reasonably find for the non-movant. Anderson, 477 U.S. at 252.
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III. ANALYSIS The United States Constitution prohibits States from enacting ex post facto laws.
U.S. CONST., art. I, § 10, cl. 1. The Ex Post Facto Clause bars enactments which, by retroactive operation, increase the punishment for a crime after its commission, Collins v. Youngblood, 497 U.S. 37, 42 (1990) (citing Beazell v. Ohio, 269 U.S. 167, 169-170 (1925)), so retroactive changes in laws governing the parole of prisoners may violate the clause. See Lynce v. Mathis, 519 U.S. 433, 445-446 (1997) (citing Weaver v. Graham, 450 U.S. 24, 32 (1981)); California Dept. Of Corrections v. Morales, 514 U.S. 499, 508-509 (1995). A court's inquiry into whether an ex post facto violation occurs is two-pronged: first, has a change in the law been given a retrospective effect; and second, has the change disadvantaged the offender. Weaver, 450 U.S. at 29.
A. Retrospective effect In Michigan, a judge can sentence a defendant to “life or any term of years.” MICH.COMP. L. § 791.234. Parole eligibility arises after a “lifer” has served ten years unless the prisoner was convicted of first-degree murder. The 1982 amendments governed parole eligibility procedures for nonmandatory lifers until the contested changes. The 1982 amendments required parole interviews in the fourth year and then every two years (a 4+2+2 schedule) for lifers and prisoners serving long indeterminate sentences ("LIDs"). At that time, the Michigan Parole Board could not deny parole to a prisoner without at least one Board member conducting an in-person interview. MICH.COMP.L. § 791.234 (1982). Further, a prisoner had a right to receive written reasons for a denial and to appeal the denial. The 1992 amendments increased parole eligibility on a life sentence with the
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possibility of parole from ten years to fifteen years (however, this provision was not applied retroactively); reduced the frequency of lifer parole interviews from the 4+2+2 schedule to a 10+5+5 schedule; and allowed the victim of a crime to appeal the grant of parole. The 1992 amendments also included a change in the structure and size of the Michigan Parole Board. The Board increased in size from seven members to ten, four of whom must have no prior association with the MDOC. In addition, Michigan Parole Board members were no longer under civil service, but were appointed to four-year terms by the MDOC director.
In 1999, the legislature amended the parole laws again. Under the new amendments, only the prosecutor or the victim can appeal a parole decision to state court. MICH.COMP.L. § 791.234 (6)(a) (1999). The amendments also eliminated the requirement that a member of the Parole Board interview lifers every fifth year after the initial ten-year period. A file or paper review is sufficient. MICH.COMP.L. § 791.234(6)(b)-(c) (1999). Finally under the new amendments, when the Parole Board declines to go forward to a public hearing in a lifer case, it is no longer considered a “decision” of the Board. Therefore, written reasons for the denial are not required.
The parties do not dispute that the first prong of the inquiry is met in this case as to three of the amendments: the change in the composition of the Michigan Parole Board, the change in the interview schedule, and the file review. All are retroactive. Defendants do challenge whether the other two changes at issue here meet the first prong. According to Defendants, prior to 1982, the code prohibited appeals of parole decisions. Consequently, they conclude that the change in 1999 merely reestablished the law as it existed at the time Plaintiffs were sentenced. Defendants also maintain
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that written reasons still accompany a denial of parole. They cast the change as a mere redefinition of when parole is denied: a "no interest" statement is no longer deemed a formal decision subject to judicial review. Defendants therefore conclude that the change is not retroactive. The Court considers the merits of Defendants' arguments below.
1. Prisoner Appeals Defendants assert that the 1999 change eliminating appeals of a parole denial simply restored the law as it existed prior to 1982. They rely on Sixth Circuit authority to support their position. In Jackson v. Jamrog, 411 F.3d 615, 617 (6th Cir. 2005), the court addressed an equal protection challenge to the 1999 amendment, permitting prosecutors and victims to appeal state parole decisions, but not prisoners. The appellate court rejected the plaintiff's argument that this change violated the Equal Protection Clause of the United States Constitution. In its analysis, the court observed that "[p]rior to 1982, Michigan's correctional code contained a general prohibition against appeals from parole board decisions." 411 F.3d at 617. It added that the relevant statute was amended in 1982 to permit appeals from the grant or denial of parole. After the 1999 change was enacted, state courts could no longer review a Board decision denying parole. In addition to unassailable authority that the law has come full circle, Defendants note that the named Plaintiffs here all committed their crimes and were sentenced before 1982. Therefore, the 1999 amendment is not retrospective relative to them-Plaintiffs merely face the same law existing at the time of their sentencing. Defendants' reliance on Jackson is misplaced. The Jackson case does not address statutory changes for purposes of ex post facto analysis. Consequently, the
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discussion therein is not binding authority as to the issues before this Court and is distinguishable. First, even if all the named class members in this case were sentenced before 1982, not all members of the class were sentenced before 1982. Second, the general prohibition against appeals that existed prior to 1982 was not a flat-out ban; the language of the 1955 law read, "The action of the parole board in releasing prisoners shall not be reviewable if in compliance with the law." 1957 PA 107 (emphasis added). Accordingly, this Court is not constrained by Jackson to adopt Defendants' position that the loss of the right to appeal is not retrospective. For purposes of this law suit and these claims, the Court finds the prohibition against prisoner appeals is retrospective.2
2. Written reasons Next, Defendants contend that Plaintiffs still are entitled to written reasons when parole is denied. The change here merely reflects a new interpretation of when a denial occurs. Finally, Defendants argue that even if the Court were to find a change has occurred, the Rooker-Feldman doctrine precludes consideration of the argument. The Court disagrees. Before 1992, the Parole Board’s decision of “no interest’ in going forward to a public hearing was treated in the same manner as any other denial of parole. See Pls.' Ex. 46, Policy Directive PD-DWA 45.02. After 1992, a no interest decision no longer is deemed a formal decision. Likewise, a decision not to interview a lifer no longer is characterized as a denial of parole. Instead, a "decision" occurs only at the end of the
2Plaintiffs do not address whether this loss creates a significant risk of longer incarceration. In light of statistics cited by the Jackson panel regarding the lack of success of appeals by prisoners (.6%), this retrospective change, in and of itself, does not sustain Plaintiffs' burden.
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process; after the public hearing, when the Board votes a final time on whether to grant parole. Consequently, a written reason no longer accompanies any preliminary decision by the Parole Board.
Plaintiffs maintain that the effect of the change is a ban on lifer appeals, and a ban that cannot be subject to court review. Under the current interpretation, lifers are never fully eligible for parole even after they have served ten years. Under Defendants' recharacterization of the parole process, the intervening changes can never be scrutinized for purposes of ex post facto analysis.
This Court agrees. There is no dispute that early board policy did not distinguish the parole eligibility between lifers and nonlifers. See e.g. Pls.' Ex. 46, PD-PWA 45.05 at 70; Pls.' Ex. 46, pp. 65-66. Before 1992, a decision not to go forward to a public hearing was treated in the same manner as a denial of parole; both decisions could be appealed. Pls.' Exs. 23, 46. Robert Brown, former MDOC Director, stated that the terms "eligible for parole" and "coming within the board's jurisdiction" were the same thing. Pls.' Ex. 13, ¶ 13. Moreover, under Defendants' argument that a "no-interest" decision was never a final decision, the 1999 statutory amendment redefining what constitutes a parole decision for nonmandatory lifers would have been superfluous. Accordingly, the Court finds that the change is in fact one that can be deemed retrospective for purposes of an ex post facto challenge.
The Court rejects Defendants' alternate argument that the Rooker-Feldman doctrine precludes consideration. The Rooker-Feldman doctrine bars the losing party in a state court action from filing suit in federal district court for the purpose of obtaining review of the adverse state-court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). According to
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Defendants, the decision in Gilmore v. Parole Board, 635 N.W.2d 345 (Mich. Ct. App. 2001), redefined eligibility for nonmandatory lifers and that decision bars this Court from considering Plaintiff's claim.
In Gilmore, after construing the language of the parole eligibility statute, the state appellate court held that a nonmandatory lifer is entitled to a written reason for denial of parole "only after" he has been interviewed, received notice that further action would be taken, has avoided a judicial veto, and has had a public hearing. Id., at 361.
Gilmore did not address the parole statute in the context of whether it violated the Ex Post Facto Clause. It merely interpreted and construed the language of the statute. Plaintiffs' injuries in this litigation do not implicate the state-court judgments; hence they are beyond the purview of the Rooker-Feldman doctrine. See Todd v. Weltman, Weinberg, & Reis Co., L.P.A., 434 F.3d 432, 436-37 (6th Cir. 2006) (holding that the Rooker-Feldman doctrine was not triggered when the plaintiff did not allege injury by the state-court judgment, but instead filed an independent federal claim). Accordingly, the Court finds the doctrine does not bar it from rendering a decision on the merits.
Because the Court finds all of the changes meet the first prong of the test, that is, they are retroactive, it directs its attention to the second prong--whether the changes have disadvantaged the class.
B. Effect of Changes Several Supreme Court decisions are instrumental to the Court's analysis as to whether the second prong is satisfied. First, in Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 501 (1995), the Supreme Court considered a California amendment that modified
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the frequency of parole suitability hearings. Before the amendment, prisoners were entitled to a mandatory annual hearing; after the amendment, prisoners were entitled to a discretionary hearing that could be postponed for up to three years, provided the prisoner was convicted of more than one offense that involved the taking of a life, and the board found no reasonable expectation of parole during the following year. Id. (citation omitted). Notably, a full hearing was required upon initial eligibility, and annual hearings were the default. The board retained the option to conduct a subsequent hearing at its discretion. Id., at 511-13.
The Supreme Court held that these retroactive changes did not violate the Ex Post Facto Clause inasmuch as they failed to "produce[ ] a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id., at 509. The Court reasoned that the amendment "create[d] only the most speculative and attenuated possibility of . . . increasing the measure of punishment," given the prisoner class affected already faced a remote possibility of release on parole. Id., at 510. The expansion of ex post facto protection to laws bearing only a "conceivable" impact on punishment would push the judiciary into the "micromanagement of an endless array of legislative adjustments of parole and sentencing procedures." Id., at 508. The Morales decision did not articulate a set formula for measuring whether a violation occurred; courts are left to discern whether the changes are sufficient on a case-by-case basis.
In Garner v. Jones, 529 U.S. 244 (2000), the Supreme Court again considered whether a change to a state’s parole process violated the Ex Post Facto Clause. Georgia had amended its parole rule, changing the frequency of required parole reconsideration hearings for inmates serving life sentences from every three years to
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every eight years, and applied the rule retroactively. The Georgia Parole Board’s policies established an eight-year maximum period for reconsideration, but permitted expedited consideration when warranted. As was the case in Morales, the Supreme Court rejected the notion that the rule seemed certain to result in longer incarceration. Id., at 255.
After the Supreme Court found that the requisite risk was not inherent in the framework of the amended rule, it directed its attention to whether the prisoner could show “by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Id. The Court held that “[o]n the record, [it could not] conclude the change in Georgia law lengthened respondent's time of actual imprisonment” and remanded the case. Id.
In sum, the Garner Court expanded Morales' "sufficient risk of increasing" punishment standard and focused its analysis on whether the amended rule, "in its operation," created a “significant risk of prolonging respondent's incarceration.” Id. at 252, 255. The Supreme Court's review acknowledged that states must be accorded “due flexibility” in designing their parole procedures. 529 U.S. at 252. In discussing the role of discretion, the Garner Court noted that in the context of parole, discretion, by its very nature, must be “changing in the manner in which it is informed and then exercised.” 529 U.S. at 253. Therefore, a change in the law that alters the way a parole board exercises its discretion does not necessarily violate the Ex Post Facto Clause. Id.
The Third Circuit Court of Appeals applied the Garner standard, and after
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reviewing evidence of how the Pennsylvania Parole Board implemented a rule change found an ex post facto violation. See Mickens-Thomas v. Vaughn ("Michens-Thomas I"), 321 F.3d 374 (3d Cir. 2003). In that case, the state legislature added language to the parole statute that public safety must be considered “foremost.” Id., at 377. The statute in effect at the time of the plaintiff’s conviction required a balancing test based on several factors. In deciding the import of the modification, the appellate court considered “other events coincident with” the revision, including an operations manual, a Parole Board-authored statement on policy, board statements before and after the change, and statistical data comparing release rates before and after the change. The court held that making “concern for public safety” the overriding consideration for parole violated the Ex Post Facto Clause. In effect, the parole board had defaulted its duty to consider "all factors counseling in favor of release." 321 F.3d at 387.
A cursory review of the statistics aided the appellate court in reaching its finding that the plaintiff, whose life sentence had been commuted by the governor, showed a significant risk of increased punishment. In 266 instances of commuted life sentences, the plaintiff was the only one so situated who was not paroled on the first or second attempt. The court concluded that the board “mistakenly construed [the statutory change] to signify a substantive change in its parole function. Id., at 391.
In addition to Supreme Court precedent and case law from other circuits, the Court finds review of the parties' positions cannot begin without consideration of a prior challenge to Michigan's 1992 statutory amendments by state prisoners, who filed a class action challenging the reduction in the frequency of hearings. One class included prisoners, convicted before 1992, who were "serving long, indeterminate sentences,
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parolable life sentences, and mandatory life sentences." Shabazz v. Gabry ("Shabazz I"), 900 F.Supp. 118, 121 (E.D. Mich. 1995). The district court characterized the "relationship between regularly scheduled parole hearings and an inmate's opportunity for early release" as "quite significant" and held the change in the interview schedule to be an ex post facto violation as to prisoners convicted before 1992. Id., at 127.
The Sixth Circuit disagreed, finding that the amendment, on its face, did not create a sufficient risk of increased sentences for any subclass of prisoners. Shabazz II, 123 F.3d 909, 910 (6th Cir.1997), cert. denied, 522 U.S. 1120 (1998). The Shabazz II decision addressed the postponement of the initial hearing and frequency of subsequent mandatory hearings, noting, “Where amendments to state parole laws postpone initial mandatory parole hearings and decrease the frequency of subsequent mandatory hearings, but nevertheless provide other viable opportunities for parole, such amendments do not produce a sufficient risk of increasing the measure of punishment attached to the covered crimes." 123 F.3d at 910. The court observed that “the 1992 amendments did not change the standard for parole, but allow prisoners ample opportunity to petition the Parole Board for interviews. Further, the 1992 amendments allowed the Parole Board to grant parole interviews of its own volition, and to grant prisoners parole without an interview.” Id., at 914. Finally, the appellate court noted that the "anecdotal observations and personal speculations" relied upon by the lower court were not sufficient to show a significant risk. Id., at 915.
In light of Garner, the Court is not limited to a review of the text of the amendments in assessing whether the changes will likely result in a longer period of incarceration, a standard the parties agree cannot be met. Instead, the Court expands
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its consideration to whether the practical implementation of the 1992 and 1999 amendments has significantly increased the risk of prolonged incarceration for members of the nonmandatory lifer class.
Before undertaking this analysis, several preliminary matters must be addressed, including whether the discretionary nature of the decision making process forecloses this Court's analysis, and what evidence can be considered in rendering a decision.
1. Preliminary matters a. Role of discretion
The parties agree that the substantive standard governing parole, found at MICH.COMP.L. § 791.233(1)(a) is discretionary. It reads, "A prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all the facts and circumstances, including the prisoner’s mental and social attitude that the prisoner will not become a menace to society or the public safety. The decision is discretionary." Id.
Even as the Court in Garner recognized the caution that cloaks any review of a parole board's exercise of discretion, it clarified that the mere fact that a board's decision is discretionary "does not displace the protections of the Ex Post Facto Clause,” because there is always the “danger that legislatures might disfavor certain persons after the fact even in the parole context.” 529 U.S. 253. Moreover, in MickensThomas, the appellate court deemed the board's failure to exercise its discretion in accordance with the statutory mandates a violation. Additionally, the Sixth Circuit recognized that "the ultimate result [of an claim of retroactive application of a parole statute where the harm is not evident from the textual or structural change] depends on
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how the parole board actually exercises its discretion." Dyer v. Bowlen, 465 F.3d 280, 283 (6th Cir. 2006) (reviewing a change in language that instructed that the parole board shall release the prisoner if certain conditions were met to language that the board may release) (emphasis added). Consequently, the discretionary nature of the Michigan standard does not immunize all Board decisions.
b. Type of evidence to be considered Next, the parties dispute what evidence may be considered in reaching a decision on the merits. Because neither the 1992 nor the 1999 amendments altered the statutory standard on its face, Plaintiffs must show the standard as applied has changed. In reviewing the substantial amount of evidence submitted, the Court is mindful of the Sixth Circuit’s warning in Shabazz that “internal memoranda and policy directives are not “laws” for purposes of the ex post facto clause. 123 F.3d at 915-16. Nevertheless, Shabazz does not render this evidence immaterial in light of the Supreme Court’s discussion in Garner and the cautionary holding is called into question by subsequent Sixth Circuit authority. Specifically, the Supreme Court found that the lower court erred in not considering the parole board’s internal policy statements. At a minimum, policy statements, along with the Board’s actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether, as a matter of fact, the amendment to [the rule] created a significant risk of increased punishment. It is often the case than an agency’s policies and practices will indicate the manner in which it is exercising its discretion. 529 U.S. at 256-57. The Supreme Court further found that when a policy statement is a “formal, published statement as to how the Board intends to enforce the Rule,” it should be reviewed. Id.
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Finally, case law decided after the parties submitted their pleadings establishes the import of Garner to the matters at hand and provides a blueprint for the analysis to follow. In Michael v. Ghess, 498 F.3d 372 (6th Cir. 2007), the Sixth Circuit noted that for ex post facto purposes, the issue is not whether the parole guideline is a law or even whether it presents a significant risk of increasing the maximum penalty; the issue is whether the challenged "guidelines present a significant risk of increasing the plaintiff's amount of time actually served." Id. at *10. Accord Fletcher v. Dist of Columbia, 370 F.3d 1223, 1228 (D.C. Cir. 2004) (observing that the Supreme Court “has foreclosed our categorical distinction between a measure with the force of law and guidelines that are merely policy statements); See also Keitt v. U.S. Parole Commission, 2007 WL 1654161 (3d Cir. 2007) (suggesting that guidelines that are “administered without sufficient flexibility” might constitute laws for Ex Post Facto Clause purposes); See Kyle v. Garrett, No. 04-41455, 2007 WL 806916 (5th Cir. March 15, 2007) (reversing the lower court's dismissal of the plaintiff's ex post facto claim arising out of a change in the parole procedures where at the time of sentencing he needed two of three votes of a regional panel, but now needed a majority of the entire 18-member board). Accordingly, the Court reviews not only the statute, but the policy directives, depositions and declarations provided.
2. Impetus for change and conversion of Parole Board policy At the outset, the Court notes that the cumulative impact of the amendments drives its analysis; thus, the fact that any one of the changes viewed separately fails to satisfy the standard is not dispositive. An overview of the impetus for the1992 changes, in particular the changes in the formulation and make-up of the Michigan Parole Board,
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sets the stage for the analysis to follow. It is undisputed that the changes were the culmination of concerns about the release of violent offenders that arose after a parolee murdered four teenage girls in 1990. Defs.' Ex. 9.
In 1992, Governor John Engler ordered reorganization of the Michigan Parole Board and signed into law statutory changes to accomplish this reorganization. The primary goal of the reorganization was to increase public safety by minimizing the number of dangerous and assaultive prisoners being placed on parole. Another goal was to make the Parole Board more accountable to both the governor and the public.
Defs.’ Ex. 2, Michigan Department of Corrections Field Operations Administration Office of the Parole Board, p. 3. When the 1992 amendments were implemented, the MDOC Director, Kenneth McGinnis, testified that the changes were meant to create a board that would be “more accountable.” Pls.' Ex. 40, McGinnis Dep. at 17-18. He added that “in all probability,” the expectation was that parole rates for violent offenders would go down because those prisoners who were the greatest risk if released would be "identified and separated." Id. at 21-22, 63. McGinnis testified that the changes had "virtually nothing to do with population growth or keeping people in prison." See Pls.' Ex. 40 at 63.
An analysis conducted five years later demonstrated a course of action contrary to this initial assessment and revealed a different purpose: “The intent of the overhaul was to make Michigan’s communities safer by making more criminals serve more time and keeping many more locked up for as long as possible.” Pls.’ Ex. 26, "Five Years After, An Analysis of the Michigan Parole Board Since 1992" at 2. McGinnis summarized the trend as wanting to keep even those prisoners who had served their maximum locked-up. They were released “only . . . because courts and statutes
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required them to be released.” Id. Notably, “[t]he parole board believes a life sentence means life in prison. There is nothing which exists in statute that allows the parole board to think, or do, otherwise. State law provides and clearly defines the process which allows for parole or commutation from a life sentence.” Defs.’ Ex. 2, MDOC Field Operations Administration Office of the Parole Board, p. 15.
In the case of nonmandatory lifers, the evidence shows that despite the substantive standard requiring consideration of multiple factors in making the decision to parole, the post-1992 Board failed to exercise its discretion, and true to McGinnis' word, certain groups of prisoners have been kept locked-up as long as possible. Michael Steely, the Administrative Assistant to the chairman of the Michigan Parole Board characterized the change from a civil service board to an appointed board as one in which the question became “Why should we parole you?” rather than “Why shouldn’t we parole you?”. Pls.’ Ex. 12 at ¶ 8. The Court views this characterization, involving the alteration of a single word in the question posed at the start of parole consideration for a nonmandatory lifer, as a reflection of the Board's willingness to foreclose any exercise of its discretion relative to the possibility of parole to the class members. The validity of this characterization is affirmed through the 1999 testimony of Stephen Marschke, the Board Chair, to the Michigan House Committee on Criminal Justice in support of a 1999 amendment to the lifer law.
It has been the longstanding philosophy of the Michigan Parole Board that a life sentence means just that–life in prison . . . . It is the parol board’s belief that something exceptional must occur which would cause the parole board to request the sentencing judge. . .to set aside a life sentence. Good behavior is expected and is not in and of itself grounds for parole. Pls.’ Ex. 27.
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The assumptions underlying this statement provide a basis upon which Plaintiffs build their claim. First, Plaintiffs challenge whether the "life means life" philosophy is "longstanding;" they assert that it actually was given birth with the 1992 appointments.3 Second, they challenge the post-1992 Board's understanding of their role relative to prisoners serving nonmandatory life sentences. Representatives of the Parole Board from the years leading up to 1992 consistently testified that nonmandatory lifers were treated the same as prisoners serving long indeterminate sentences (LIDs) for purposes of parole, whereas now the board aligns nonmandatory lifers with mandatory lifers. Finally, Plaintiffs challenge what factors are considered in reaching a decision to parole: Parole Board representatives, who served prior to 1992, consistently stated that the they looked at all factors, including a prisoner's adjustment in rendering parole decisions, as required by statute, whereas after the amendments the Board uses the seriousness of the crime as a flat ban on release.
The Court examines each of Plaintiffs' contentions below. To make their claim, that the post-1992 Board views life with the possibility of parole sentences differently than previous Boards, Plaintiffs rely in large measure on the declarations of Parole Board members who served before and after the amendments as well as MDOC employees and MDOC publications.
Defendants posit that even accepting Plaintiffs' assertions, a "climate change" is not enough. They rely on the concurring opinion in Garner to support their position that in order for the ex post facto claim to succeed, Plaintiffs must show more than a change
3The Michigan Parole Board's understanding surprised state court judges, who expected a nonmandatory lifer to serve just over 15 years. Pls.' Ex. 36 at p. 15.
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in the prevailing views/goals of the individual members of the parole board. Garner, 529 U.S. 259 (noting that the ex post facto clause requires more than a complaint that the parole board has been replaced by a new, tough-on-crime board) (Scalia, J., concurring). Courts have endorsed Defendants' position that a "life means life" policy fails to meet a plaintiff's burden to show an ex post facto violation. See e.g. Shultz v. Rubitchun, No. 1:05-CV-697, 2005 WL 3262435 at *5 (W.D. Mich. Nov. 30, 2005) (internal citations and punctuation omitted) (“The fact that Parole Board members are no longer civil service employees does not give the Director greater discretion in firing them and does not make them more amenable to political influence. The bias alleged by the [Plaintiff]– the `general tendency of an administrative agency to serve the executive under which it derives its authority’ and the general bias in favor the alleged state interest or policy—does not render the agency unable to make an objective analysis. Thus, although current Parole Board members are guided by an underlying philosophy that is different than the philosophy of former Board members, this does not constitute the application of a newly enacted law or formal policy in a manner that would violate the Ex Post Facto Clause.”); See also Maile v. Lafler, 2006 WL 229876 (E.D. Mich. Jan. 30, 2006) (rejecting the argument that the composition of the board and the policy that "life means life" can serve as bases for an ex post facto clause violation).
Although the Court agrees that a mere philosophical change in members of the Michigan Parole Board may not satisfy the standard, Defendants' reliance is misplaced. Plaintiffs do not limit the basis of their motion to such an argument, and the circumstances giving rise to the issues at hand cannot be characterized as such. If Plaintiffs merely challenge the underlying philosophy that guides the current Michigan
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Parole Board members in making decisions as to how best to protect the public safety, they have no claim. A change in the collective philosophy that limits the exercise of discretion in a manner contrary to the substantive standard and guidelines, however, may satisfy Garner.
The evidence before the Court cannot be characterized as the comments of an individual board member on his or her own philosophy about parole, but rather must be characterized as evidence of the guidelines informing the whole Board's exercise of discretion. Defendants have not contested the evidence itself, merely its materiality. Further, the Court rejects Defendants' attempt to springboard Justice Scalia's concurring opinion into one that precludes consideration of the bulk of the evidence presented by Plaintiffs to make their claim. Consequently, the import of the 1992 changes to the make-up and formulation of the Parole Board itself must be assessed relative to the other procedural and policy changes.
Plaintiffs identify several changes as demonstrative of how the amendments have created a significant risk of prolonged incarceration. All of these changes are viewed in the context of a wholesale change in Board membership and in conjunction with each other.
3. Impact of New Board Defendants contend that Plaintiffs have no evidence that new members were appointed for their anti-parole philosophy and/or willingness to please the governor. Defendants are correct that direct evidence is lacking. Nevertheless, the manifestation of the newly appointed members' understanding of their job is revealed by the post1992 Board conduct.
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a. Comparable groups William Hudson, who served as Administrative Assistant to the 1977-80 Board, as a member from 1980-85, and as Chairman from 1986-91, stated that the Michigan Parole Board’s “goal was to ensure that prisoners who had committed similar crimes, and who had similar criminal and institutional records, would serve about the same amount of time, regardless of whether they were serving long-indeterminate or life sentences. See Pls.' Ex. 4, Hudson Decl., at ¶¶ 7, 8. Both Perry Johnson, MDOC Director from 1972-84, Pls.’ Ex. 2 , Johnson Decl. at ¶¶ 10-12, and Robert Brown, MDOC Director from 1984-1991, concur. Accord, Pls.' Ex. 10 at ¶¶ 11-12, Decl. of Frank Buchko, who served on the Board from 1962-74. To achieve uniformity, the pre-1992 Board calculated the grid scores for nonmandatory lifers as well as for LIDs. See Pls.' Ex, 3, Brown Decl., Pls.' Ex. 10, Bucko Decl. The Commutation and Long-Term Release Guidelines, which were developed in the early 1980s, allocated points for the offenses and prior record to both lifers and LIDs. The guidelines were initially adopted to identify those prisoners with a high or low probability of parole, to make the board's work more efficient. Those who scored high probability on the parole guidelines were essentially automatic paroles, and those who scored low probability were essentially automatic denials. The real work of the board was to decide the medium or mid-range cases, to see who among that group should be paroled. Pls.' Ex. 6, Gabry Decl. at ¶ 13. "The grid score was the number of years a person with a good institutional record could expect to serve. . . . Although a score was not binding, the Board used the score routinely as a reference point." Pls.' Ex. 3, Brown Decl. "Lifers as a class scored high
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on guidelines back then, being usually well-behaved and often having few or no prior offenses." Pls.' Ex. 6, at ¶ 15.
The "real difference between the LIDs and those under the lifer law other than first-degree murder was that the LIDs would one day pass their minimum term and be fully parole eligible (with or without the trial court's permission), [whereas] the second group could only be paroled if the[ ] sentencing judge did not object in writing, and after a public hearing. [Nevertheless] the standards by which these groups were judged for parole purposes were the same in most cases." Pls.' Ex. 10, Bucko Decl. See also Pls.' Ex. 3, Brown Decl. at ¶ 12.
In addition to the testimony of former Michigan Parole Board members and MDOC employees, documents created by MDOC, from as far back as 1942, demonstrate that the two groups were coupled for parole consideration purposes. The lifer law granted the parole board jurisdiction to nonmandatory lifers after they had served ten years and included LIDs with minimums so long they would be expected to serve more than the ten years. See Pls.' Ex. 24, "Third Biennial Report" at 91. Finally, Plaintiffs' sampling of prisoner files shows that the guidelines were calculated for nonmandatory lifers. See Pls.’ Ex. 72, (random prisoner files) 13-19. William Kime, who worked for MDOC from 1969 until 1989, as Deputy Director in charge of the Program Bureau, oversaw research, evaluation of program success, new program and risk prediction development for use by the Parole Board. As part of his job responsibilities, he reviewed past practices of the Parole Board. He concurs that the same standards were applied to LIDs and lifers. Pls.' Ex. 5.
After the 1992 amendments, the goal changed from one of uniformity between
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the two groups to one of categorical denial to nonmandatory lifers, absent a medical
reason. As noted by Gabry, Pls.' Ex. 6, the Board no longer uses grid scores for lifers,
and "[t]he parole of a lifer would require a majority vote of the entire Parole Board (six
votes), and with the composition of the Board--except for drug-lifer cases or what you
could call medical paroles--the likelihood of obtaining a majority was not great."
Stephen Marschke, who served from 1992-96, and chaired the Board from 1996-
2002, Pls.’ Ex. 39 at 74, and former MDOC Director McGinnis concur that the post-1992
Board treated the two groups differently for purposes of parole. One of the grounds
identified as a basis for the change in treatment was the procedural differences in the
process for the two groups. Gabry explained the procedures:
After a prisoner had served his required minimum term, he or she could be paroled by two votes of a three-member panel of the board. In those days, for non-lifer cases, the parole process was as follows: the computer system would identify an inmate months before the inmate was up for review. A parole eligibility report would be put together by prison staff and added to the inmate's file. The chair would appoint a panel of three board members for each inmate. The first person would be the file screener, the second person would be the interviewer, and the third person would serve as the tiebreaker if necessary. The screener would make a recommendation based on the file. That person would normally vote based on the file alone, although the screener could wait for the interviewer's comments. If the screener and interviewer disagreed, a third member or I as chairman would break the tie.
With regard to lifers, it was my position that coming within the jurisdiction of the parole board after 10 years was not the same thing as being parole-eligible upon completion of the minimum sentence (less any good time) in non-lifer cases. The process was also different, because to parole a lifer you needed a majority of the board to take interest in the case. Then you needed a request for approval of the sentencing judge to allow the scheduling of a public hearing, and after review of the information obtained at the hearing, you needed a majority vote of the board to release the prisoner on parole.
The information board members received when reviewing a lifer's file consisted of (1) the central office file and (2) the parole eligibility report.
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The central office file was a history of the prisoner with the parole board, including sheets from past interviews, often by different board members; hand-written notes; and old grid scores. The parole eligibility report summarized how the prisoner was doing at a particular institution. The institutional file was used to evaluate non-lifers and was kept at the institution where the prisoner was being held. With the guidelines for nonlifers, we could identify an inmate as low, medium or high likelihood of release . . . . With lifers we just had to rely on our own judgment. . . .
The process for a lifer interview began with getting the central office file and looking at it, to get a feel for the person you, as a board member, were dealing with. Then there would be an interview. The meetings were conducted as conversations, without any format beyond that. There was no real training that told parole board members what things to look for in considering lifers for parole, or how to conduct the interview. At the end of an interview, a board member might have said, "I have no interest in going to the board." Or, she might have come to the opposite conclusion.
At executive committee sessions - meetings of the full parole board occurring roughly monthly . . . all eligible lifers had to be voted on, even if only to conclude that there was "no interest," the most common response. Any inmate a board member had an interest in paroling got docketed. At the executive sessions a member would speak for the inmate whose case he or she was interested in. The member would advocate for the parole of that inmate and there would be five votes of the ten on the board (including the interested member) would be needed to proceed to the next step, preparation of a lifer report. But it was very rare that anyone got through.
Pls.' Ex. 6 at ¶¶ 17-19, 22-23.
Marschke testified at his deposition that during his tenure on the Board, from
1992 through 2002, the Board would not think about looking at a lifer case before the
twentieth year. Pls.’ Ex. 39 at 80. Yet, Kime's study revealed that "the mean number of
years actually served by parolable lifers who were paroled during his tenure, from 1969-
1989, was approximately 18. 8." Id. at ¶ 6. Marschke, who coined the phrase, "life
means life," stated that his view was that parolable life was essentially the same as
mandatory life. Id. at 125-26. Gabry explained the genesis of the change.
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The "life means life" idea was for me really a response to the inmates who, as the more conservative board took hold, began complaining about not being released in the time they had expected - the 12 - 16 years they thought they would be serving. They would ask in the interviews, "What do you want me to do?" and I had no response other than to tell them to "serve more good time." I told them that the board did not have to parole them because "life means life" - because that had become the reality with the new board. Pls.' Ex. 6 at ¶ 30. Gabry's understanding is confirmed by the evidence complied by the Plaintiffs on the history of parole in Michigan. The parole approval rates from 1990 to 2004 fell from 61.2% to 34.5% for all violent offenses. Pls. Ex. 53. The Court finds the testimony further reflects the post-1992 Parole Board's belief that the procedural differences in the parole process for nonmandatory lifers and LIDs created a different standard of consideration. Nevertheless, the testimony of Parole Board members, MDOC personnel, and records confirm that a consistent approach to nonmandatory lifers occurred until the appointed members joined the Michigan Parole Board. Because the procedural differences in parole for nonmandatory lifers and LIDs preexisted the 1992 Board, the reinterpretation of the meaning of the procedural differences may be attributed to the change in the make-up of the Board. The testimony shows that the new Board's approach to nonmandatory lifers indeed became "life means life."
b. Exercise of discretion Plaintiffs argue that the Board executed its changed policy by refusing to exercise its discretion. Ronald Gach, who served on the old and new Board from 19852000, described the change in policy as follows, “it became nearly impossible [to] get the board to agree to parole even a fully rehabilitated and long-serving parolable lifer.”
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Pls.’ Ex. 7 at ¶¶ 2-4. He notes the seriousness of the crime alone was a significant basis for denying parole, unless the inmate was ill. This opinion is shared by Jessie Rivers, who was appointed to the Board in 1992, and Gary Gabry, first Chair of the new Board.
Specifically, Jessie Rivers, who served from October 1992 through December 1993, stated that “any discussion of lifer paroles always devolved into a discussion of the inmates’ original offense, and the Board would almost always deny parole based just on the offense. The members of the [Michigan Parole] Board did not intend to release any lifer who committed a serious offense.” Pls.’ Ex. 11 at ¶ 10.
Gary Gabry (1992-1996) likewise testified that the decisional process "really focused on the crime, as opposed to the decades the lifer may have spent in prison with perfect conduct." Pls.' Ex. 6. He added that he attempted to expand the focus from "the crime and onto the candidate's recent record in prison. I pushed the Board to focus more on the prisoner's behavior, adjustment and future plans and not primarily the sentencing offense . . . ." Id.
The appointed Board's myopic view of the relevant factors stands in stark contrast to the statutory language, which requires that the Parole Board have reasonable assurance that the prisoner will not "become" a menace to society. Gabry maintains that the language itself suggests that once an inmate comes within the jurisdiction of the Board, it should look at the evolution of the inmate since the crime.
Once the minimum term is served, the Board is to see if the person would "become a risk" if released. In other words, good behavior, adjustment, program completion, etc., all would help the Board determine if now that the person has purged himself of his risk to the public by serving his minimum, is there reason to believe he will become a further risk.
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Id. The erosion of the substantive standard becomes more clear when considering
the comments of MDOC personnel. According to Brown (MDOC director 1984-1991), before the changes in policy in 1992, the members looked at whether the inmate was suitable to rejoin society. It was rare for Parole Board members to deny people based on the "nature of the crime" instead of their subsequent behavior and programs. Pls.' Ex. 3.
These observations, even if deemed anecdotal, are backed by the documentary evidence. For example, the parole criteria identified for consideration in 1974 Annual Report of the Michigan Department of Corrections, Pls.’ Ex. 25 at p. 99, include prior record, seriousness and nature of current offense, circumstances of the offense, the placement situation, and the institutional record. This set of criteria, applied to nonmandatory lifers, played no role after the 1992 amendments. Specifically, the September 1997 Report by the Michigan Department of Corrections entitled “Five Years After an Analysis of the Michigan Parole Board Since 1992," Pls.’ Ex. 26, summarized the overhaul by Governor Engler in 1992, the intent of which was “to make Michigan communities safer by making more criminal serve more time and keeping many more locked up for as long as possible." One difference identified is that the Parole Board is “much less willing to release criminals who complete their minimum sentence–and much less willing to release criminal at all, forcing many to serve their maximum sentences.” Id. The report notes that the approval rate for parole candidates showed a drop from 66.1% from 1988-1991, to 55.7% for the new board (1994-1997). The percentage of prisoners serving their maximum sentence has increased from 19.2% under the old
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board to 34.8 % under the new board.4 Id. After the 1992 amendments, the potential danger to the public was assessed
solely from the standpoint of the seriousness of the crime. The Garner Court noted that in the context of parole, discretion must be "changing in the manner in which it is informed and then exercised." Yet, Defendants have presented no argument that new studies on recidivism or predictive factors informed the post-1992 Board's exercise of discretion. The evidence shows that the new Board reinterpreted its role relative to nonmandatory lifers, equated a procedural difference in the parole processes for LIDs and nonmandatory lifers as substantive, and manifested its understanding by categorically denying parole to nonmandatory lifers except for drug and medical hardship cases.
c. Less frequent review and elimination of interview It is uncontested that prior to 1992, the Michigan Parole Board interviewed lifers more frequently and conducted file reviews every year. See Pls.' Ex. 4, Hudson Decl. at ¶ 4. In 1992, the review schedule was changed to a five-year period. In 1999, the inperson interview requirement was eliminated. The parties agree that less frequent review does not constitute a per se violation of the clause, particularly when the parole authority is able to set hearings sooner that the outer statutory limit. Cf. Jernigan v. State, 340 S.C. 256, 264 n.5 (S.C. 2000) (finding a statute that delayed review for one year violated the ex post facto clause because it automatically increased violent offenders parole consideration from one year
4Although the numbers do not distinguish between lifers and LIDs, the information underscores the evolution and impact of the amendments and the manner in which the Parole Board exercises its discretion.
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to “every two years, and failed to provided for an earlier discretionary review). Defendants explain that the Michigan Parole Board could never keep up with
interviews for the 1700 lifers eligible for parole. Marschke testified regarding the merit of interviews in support of the 1999 amendment eliminating re-interviews. He stated that interviews were of "little benefit" because the "Parole Board would probably never receive jurisdiction from the sentencing judge to parole" or make the request. Pls.' Ex. 27. Further, not every lifer is a good candidate,5 the change in the in-person interview requirement and the change in timing merely “relieve the Board of the costly and timeconsuming responsibility of scheduling parole hearings for prisoners who have no chance of being released.” See Morales, 514 U.S. at 511. Even if Defendants' goal is laudatory, the Court's focus must be on the effect of the change relative to the length of incarceration, not the stated purpose.
The evidence shows that the Michigan Parole Board's ability to schedule a review sooner than the proscribed five-year period does not play out in practice. According to Marshcke, the five-year lifer schedule is almost never accelerated. Pls.’ Ex. 39 at 74-77 (except for medical cases). After the review dates are set by computer, the file is not brought to the Board’s attention until shortly before the next five-year review. It is essentially automatic. Pls.’ Ex. 42, Rubitschun Dep. at 41. Because the review is, in practice, the precursor event or trigger for lifer parole, the changed
5 Defendants also claim that there were 27 paroles granted prior to the 1999 elimination of mandatory interviews, and 47 granted in the six years following, when interviews were discretionary. The Court does not find these statistics helpful to its analysis because Defendants have not provided information as to whether the paroles were to drug/lifers, who are not part of this class, or medical hardship paroles or "routine" lifer paroles. Therefore, the numbers do not promote any meaningful analysis.
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schedule disadvantages the offender. Of the 19 random files reviewed by Plaintiff’s counsel, in nearly every case, the
old Board expressed interest in parole before the 15th year. Pls.’ Ex. 72. Therefore, the new system harms nonmandatory lifers because even a close case is not reviewed more frequently than a hopeless cause. Additionally, even if new information becomes available, for example if a judge withdraws his or her judicial veto, the case would not be reviewed until the five-year period is fulfilled. Thus, the system harms the class members because new information or corrected information is not acted upon in a timely manner.
The elimination of an in-person interview similarly disadvantages the nonmandatory lifer. The in-person interview generates a written record that is part of the file. In the absence of an interview, the only new information added is the form notice of “no interest” with a number code that means a routine lifer denial. Moreover, an interview not affords a prisoner the opportunity to insure that mistakes in the record are corrected, it affords a lifer the opportunity to make an impression, whether favorable or not.
Plaintiffs’ counsel describes the comments of interviewers as “riveting,” a dialogue about the prisoner’s progress. Moreover, seeing the prisoner can bring home the point that the “felon is now an older man or women who has lived an exemplary life for years.” Pls.’ Brief at 49. Plaintiffs' observations are supported by the declarations from many past members of the Parole Board and MDOC personnel regarding the import of interviews to the parole process.
For example, interviewing a prisoner in advance of eligibility facilitated an
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exchange of information between the Board members and the prisoners, a process described by one member of the Board as "crucial." Pls.' Ex 4, Hudson Decl. at ¶ 11. The interview "affords board members the opportunity to record their reactions and thoughts in the file. These notes were placed on the right side of the file, so that they were part of the ongoing "story" of the prisoner. In looking at a file, you could see not only what the previous board members thought, but you could see that information in the timeline of what else was going on with that prisoner. The right side of the file included paperwork like transfer documents, misconduct tickets, work reports - all the things that provide context for what the prisoner is doing and how he is progressing." Id., at ¶ 12. Finally, according to Sampson, the Board never moves forward in a nonmandatory lifer case to a public hearing without an interview. Pls. Ex. 43, Sampson Dep. at 24-5.
In sum, the Court finds the value of the interview cannot be overstated, whether it aids a prisoner's progress toward parole or defeats it. In the absence of an interview and in the absence of a file review, parole will not occur. Therefore, before 1992, parole was possible at least every other year, once a nonmandatory lifer served the ten-year prerequisite. Now, it is only possible every fifth year. Moreover, Plaintiffs have satisfied the Court that reviews are not scheduled outside the five-year review period established in the 1992 amendment. This change, in conjunction with the others, significantly impacts the length of time of actual imprisonment.
d. Parole rates The Citizens Alliance on Prisons and Public Spending gathered statistics which help formulate the assessment of whether the 1992 and 1999 amendments significantly
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increased Plaintiffs' risk of increased incarceration. The parties review the same data and declare victory based upon the numbers. After reviewing the arguments advanced by the parties, the Court expresses its agreement with Benjamin Disraeli, "There are three kinds of lies: lies, damn lies, and statistics." It is incumbent upon this Court to sort the evidence and decide what will be considered and what the numbers means.
In resolving how to view the statistics, and what outcome they dictate, the Court must resolve how best to consider pipeline paroles, that is those paroles approved before the appointed Board took over, whether to include the 2005 statistics, as advocated by Defendants, and what role the years between 1985 and 1995 should play in the analysis. The bottom line is what the data reveal relative to assessing whether a significant risk of increased punishments resulted from the amendments.
Under Defendants’ analysis6 of the statistics, in the ten years before 1992, there were 28 paroles granted; in the ten years after 1992, 42 paroles were granted--a 50% increase over the number of paroles granted in the ten years before the "ex post facto" laws were enacted. See Defs.' Ex. 3, "Michigan Lifers Parole Between 1/1/70 to Present." Further, according to a 2002 assessment by MDOC, “[t]he statistics over the past 30 years have been fairly consistent. An average of 8.3 prisoners per year, serving
6Defendants also argue that the appropriate focus is not on approval rates, but denial rates. According to Defendants, approval rates overstate a prisoner’s chance of parole, and refocusing on denial rates clearly shows that Plaintiffs did not have an excellent chance at winning parole. Under Defendants’ viewpoint, only 5% of lifers stood a chance of being paroled. Only a small percentage of that 5% has been affected, if at all, by any of the identified changes. Therefore, Defendants conclude that Plaintiffs' claim fails as a matter of law. The Court declines Defendants' invitation to limit its review to denial rates: the overall chance of gaining parole is not the standard that Plaintiffs must meet.
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a life sentence, have been released through the lifer law or commutation process.” Defs.’ Ex. 2, MDOC Field Operations Administration Office of the Parole Board, p. 15.
The Court observes that it is not the first to have these numbers before it in assessing whether the new Board instituted a "life means life" policy, and whether the manifestation of this policy violates the Ex Post Facto Clause. Those state and federal courts analyzing the numbers have unanimously concluded that claims akin to the one Plaintiffs advance here fail as a matter of law.
For example, in People v. Hill, 705 N.W.2d 139 (Mich. Ct. App. 2005), the state appellate court concluded that even if the "life means life policy exists," the defendant failed to establish that it was not in effect when he was sentenced to parolable life imprisonment." Id., at 142. The state court reached its conclusion based on the fact that from 1941 through 1974, only about twelve lifers eligible for parol were paroled in a year. From 1975 through 1992, before the policy existed, the number dropped to only four. Finally, the Hill court noted that after 1992, the numbers increased. Fourteen lifers were paroled in 1994; and twelve from 1995 through 1998. Therefore, it concluded that "no discernable change in practice" had occurred. Id.
The reasoning is flawed. First, the state court attributed paroles made after 1992 to the post-1992 board. Evidence in this case shows that the "pipeline paroles" cannot be attributed to the new Board. In 1992, before the new Board was put into place, the old Board issued or reissued favorable decision in 47 lifer cases, moving them forward for public hearing. Thirty-nine of the candidates were approved. Gabry explained,
All of these inmates were "in the pipeline" when the new Board came in. These inmates were dealt with a bit more summarily--there was a presentation by Tom Patten or Ron Gach about each case, where it was in the pipeline, why the old Board proposed going forward with that
36

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inmate, and who on the old Board had voted to go forward. I recall the new Board voted on some of these inmates without ever seeing them. The new Board honored some of the pipeline paroles out of respect for the old Board, but if the crime was severe, members of the new Board would not defer to the old Board. Some got through, but many if not most did not. Pls.’ Ex. 6, Gabry Decl. at ¶ 31. Even beyond 1993, Gabry recalls that those lifers that were paroled were either in the pipeline or "drug-lifer cases or medical paroles. (These were people who had a terminal illness and were going to die in prison if we didn't let them out.)" Id. In more routine cases, the new Board rarely recommended parole for a lifer." Id. Not only did the holdover members recognize that the grants of parole in the two years following 1992 reflect pre-amendment decisions, the MDOC itself considered 1992-1993 "transitional years." See Pls.' Ex. 26. Thus, the increase in lifer paroles from roughly 1992-94, are better attributed to the old Board. Yet another defect in the Hill analysis is its reliance on the raw numbers. The prison population and number of prisoners serving life sentences with the possibility of parole has increased dramatically over the last thirty years. In 1975, there were 66 eligible lifers; in 1985, 294 eligible lifers, in 1995, 960 eligible lifers. Consequently, the fact that the average number of lifers paroled each year has remained steady does not support Defendants' position. When the number of prisoners paroled are considered in light of the number of parole-eligible lifers in the pool, the old Board recommended release of six percent of the pool, and five percent of the pool was released. The undisputed testimony is that the new Board did not initiate these releases and attributing those releases to it to measure the post-1992 rates defies logic. Therefore, 1995 is the beginning point for lifer paroles initiated by the new Board.
37

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Finally, the Court must decide whether the analysis should include statistics from 2005. Defendants' analysis builds on the fact that 13 lifers were paroled that year, and when that information is included, from 2000 to 2005, the new Board paroled 36 lifers. The Court declines to review evidence arising after the lawsuit was filed, and limits the relevant time frame to what occurred before Plaintiffs filed suit. Even if the Court were to consider the rates from 2005, Defendants included drug lifers in their numbers. Because the class was redefined after the briefs were filed, drug lifers are no longer included in the class. Thus, the statistics are of little value.
Accordingly, the Court finds Defendants have failed to establish their position that the numbers unequivocally support not only an increase in paroles of nonmandatory lifers, but sustain their burden of showing that the amendments do not create a significant risk of longer incarceration to the class. The Court therefore examines the evidence offered by Plaintiffs to support their position that a significant decline in parole rates has occurred since 1992.
Plaintiffs assert that the parole rates from 1942 until 1984 show that nonmandatory lifers were paroled at a “steady 5-15 percent rate, with the average time served steady at 15-18 years." Plaintiffs use 1995 as the starting point for lifer paroles initiated by the new Board, and examine the years from 1995-2004. The new Board paroled two lifers per year at a rate of .15%. The average number of years served climbed from 19.2 during 1995-99, to 23.2 during 2000-04. In short, Plaintiffs’ position is that the average number of years served increased as the average rate of parole for eligible lifers decreased.
Plaintiffs have failed to include the numbers from the years immediately
38

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preceding the 1992 amendments in their assessment. However, Plaintiffs' admission that lifer paroles declined markedly in the years before 1992 does not eviscerate their claim, provided they can show that the reason was not the parole laws, that is a change in the parole standards or policy, but the exploding prison population. Accordingly, the Court examines Plaintiffs' rationale for the exclusion.
In deciding how to look at the data arising from 1985-95, the Court finds the Michael decision instructive. 498 F.3d 372. The Sixth Circuit, in reviewing a "statistical study that purported to show that inmates served longer sentences" under the amended Ohio guidelines, noted that any such a showing was "unsurprising" in light of the state court's decision in Layne v. Ohio Adult Parole Authority, 780 N.E.2d 548 (Ohio 2002). Id. at 376-77. In Layne, the Ohio Supreme Court instructed the parole authority to calculate a prisoner's parole guidelines based upon the offense of conviction rather than the offense for which a prisoner had been acquitted or charges dropped pursuant to a plea agreement. Thus, those prisoners eligible for parole before the Layne decision had criminal history points based on the indicted offense rather than the conviction and the guideline ranges exceeded the minimum sentence. This fact skewed the data, rendering the increase in the length of sentence served by the prisoners nonpersuasive in showing an Ex Post Facto Clause violation. The plaintiffs in Michael additionally failed to establish their claim because they failed to compare the amount of time served under the new guidelines to the pre-guideline practices.
In light of Michael, the Court would be remiss in assessing the parole rates in a vacuum; the context in which the rates arose cannot be ignored. The legal standard is whether a law or rule’s “retroactive application will result in a longer period of
39

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incarceration than under the earlier rule,” Garner, 9 U.S. at 255, and an analysis of whether the amendments violate the ex post facto clause because of their application must take into account those factors relevant thereto. Defendants have not disputed the facts underlying the reasons advanced, and they are deemed accurate for purposes of the Court's analysis.
In 1977, prisoners filed a class action lawsuit challenging the Parole Board’s failure to provide fair procedures to parole-eligible prisoners. The suit, Sweeton v. Johnson, No. 77-72230, resulted in federal court monitoring of parole, which continued through June 1985. The consent judgment required timely action in preparing parole eligibility reports, notice of upcoming parole hearings, and interviews. Two years later the court granted plaintiff’s motion to reopen the action and imposed sanctions for the board’s failure to abide by the terms of the consent judgment. Sweeton v. Brown, 1991 WL 181751, 944 F.2d 905 (6th Cir. 1991). According to Robert Gillett, who represented the plaintiffs in Sweeton, the Parole Board’s difficulty in complying with the Sweeton deadlines was threefold: the growth of the prison population; the need to implement systems; and most importantly the Prison Overcrowding Emergency Powers Act ("POEPA"), MICH.COMP.L. § 800.71 (1980).
Robert Brown, Jr., (Pl.s’ 3), who served as the MDOC Director from 1984 until 1991, described the POEPA:
Under this act, any time prison capacity was exceeded for more than 30 consecutive days, the Corrections Commission would notify the Governor, who had a certain number of days to verify the 30-days of overcrowding. If there was overcrowding for 30 days, the Governor would declare a prison overcrowding emergency and the Department had to reduce the minimum sentences for all prisoners (except for lifers and those serving mandatory gun sentences) by 90 days. This led to many prisoners having their sentences reduced significantly, and made about 1,000 more prisoners
40

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eligible for parole each time an emergency was declared. With those emergency releases, every prisoner basically came out of prison as an early release, and the parole board - which was just five members (later seven) back then - was overwhelmed by the extra work load.
The POEPA was invoked on nine occasions to move forward by 90 days the earliest release dates (ERDs) for all prisoners with minimum sentences. This “buried” the Board with new cases. Pls.' Ex. 23.
Moreover, as the prison population mushroomed in the mid-to-late1980s, commitments increased from 6,100 in 1981 to 12,700 in 1989, "it is fair to say that the Parole Board was overwhelmed." Pls.' Ex. 2, Johnson at ¶ 16. "The Board had no choice but to meet its statutory requirement to provide hearings for regular indeterminate cases and put its time and resources into releasing the prisoners who were most likely to be paroled, just to get people out the door. The interviews and paroles of 10-year lifers and some LIDs were surely delayed as a result." Id. at ¶ 18.
In addition to the scarcity of resources caused by the POEPA, the 1982 lifer amendments required more frequent parole review for lifers and LIDs. MICH.COMP.L. §791.234 (4) (1982). To combat the problem, the Parole Board released the prisoners easiest to release, prisoners with shorter terms who passed their ERDs, and put off lifer parole interviews. According to Plaintiffs, even lifers who were board-interviewed and approved were not processed for public hearing. Finally, Plaintiffs maintain that another reason the rates dropped significantly after 1985, was the number of prisoners receiving life commitments skyrocketed in the mid-1970s. So ten years later, the number entering the pool jumped from under 300 in 1985, to almost 800 in 1992. Pls.’ Ex. 52. This increase drove down the parole rates.
41

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The Audit Report of Parole Decisions and Release Date Computations Department of Correction November 1, 1983, through August 31, 1987, Pls.’ Ex. 32, shows that in June 1987, there was a backlog of 800 interviews for prisoners serving life and long indeterminate sentences. The annual number of lifer interviews dropped to 540 in 1984, 252 in 1986, and to 57 for the first half of 1987. At the same time, the average number of eligible lifers doubled. Pls.' Br. at 38-9.
In light of the conditions impacting the Parole Board's ability to interview nonmandatory lifers, a prerequisite to parole, the Court is not surprised that the rates dropped after 1985. The drop can be attributed to prison overcrowding, the federal court monitoring, and the POEA, rather than a change in the law governing lifer parole.
The Court agrees with Plaintiffs that the parole policy has changed for drug lifers, a group in which members have been approved by the Parole Board even before eligibility. Pls.' Exs. 70, 71. Likewise, policy has changed for nondrug mandatory lifers. Pls.' Ex. 51. In the past five years, even including medical paroles, the new Board has paroled nonmandatory lifers at a rate of .2%. Pls.' Ex. 54.
The change in the make-up of the Michigan Parole Board, the Board's understanding of why the change occurred and how it was to exercise its discretion, its redefining of the eligibility procedure for nonmandatory lifers, and changes to the timing and intervals of the interview and review process, when considered in total have significantly disadvantaged the class and constitute a violation of the Ex Post Facto Clause.
42

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IV. CONCLUSION For the reasons discussed above, the Court GRANTS Plaintiffs' motion and
DENIES Defendants' motion.
IT IS SO ORDERED.

Dated: October 23, 2007

s/Marianne O. Battani MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon the parties of record, on this date by ordinary mail and/or electronic filing.
s/Bernadette M. Thebolt Deputy Clerk

43

 
 Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 1 of 6

FILED UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

111!1BffB - 1 P 2: It , •

KENNETH FOSTER-BEY, et ai., on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

U.S. Di3T. COURT CI. ii,'i
EAST. DIST. HICHIGAl1 DETROIT
File No. 05-CV-7131S-DT Hon. Marianne O. Battani

BARBARA SAMPSON, et ai,
in their official capacities,

U.S. Mag. Judge Virginia Morgan

Defendants.

Paul D. Reingold (P-27594) Michigan Clinical Law Program Attorney for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Kevin Himebaugh (P-53374) Assistant Attorney General Attorney for Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

DECLARATORY JUDGMENTAND FIRST REMEDIAL INJUNCTIVE ORDER and
FINAL ORDER FOR PURPOSES OF APPEAL On October 23, 2007, the Court granted summary judgment to the plaintiffs and denied summary judgment to the defendants. The Court held that the cumulative changes to Michigan's parole laws, policies, procedures, and standards since October 1, 1992, as they have been applied in practice retroactively to non-drug parolable lifers who committed their crimes before that date, violate the ex post facto clause of the U.S. Constitution. As a result, the plaintiff class has not had constitutional parole review since October I, 1992, and has suffered a significant risk of in-
creased punishment.

Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 2 of 6
Accordingly, a remedy is needed to right the constitutional wrong, and to ensure that the named plaintiffs and the members of the plaintiff class get swift, sure, and complete relief. That relief must include prompt personal parole review of the plaintiff class, subject to the laws, policies, procedures, and applying the standards, that were the norm for the decades before 1992. By this order the Court is giving the defendants a chance to show that they are both willing and able to remedy the constitutional violation. If they cannot, then stronger remedial measures will become necessary. Now, therefore,
IT IS ORDERED: I. This order will serve as a first remedial order, to apply for six months from the date it is entered. 2. As soon as practicable, but not longer than 30 days from the date of entry of this order, the defendants will compile a list of the 250 non-drug parolable lifers who have served the longest on their life sentences. The parties estimate the total size of the class to be around 1,000 non-drug parolable lifers, so that the 250 comprise the longest-serving first quartile. 3. From that list of 250, the defendants will drop out those class members whose true security level is currently above Level III, based on their most recent security classification screen. 4. Within 60 days of the date of entry of this order, from those then remaining on the list the defendants will drop out those lifers with additional sentences that would preclude them from being paroled on their life sentence during the six-month period of this order.! 5. The defendants will also drop from the 250 in the first quartile those non~drug
I These prisoners are not technically members ofthe plaintiff class because the parole board has not yet "denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred" their parole on the merits. See Revised Class Definition, Stipulation and Order, Doc. No. 142. Nevertheless, they will be counted for purposes of calculating the quartiles, so that all potential class members will be reviewed to determine whether or not they can be paroled on their life sentence.
2

Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 3 of 6
parolable lifers who are already in the pipeline for parole. For those deleted from the first-quartile list for any of the three listed reasons, the defendants will identify who was dropped from the list and why. 2
6. The resulting final first-quartile list will be one that can be sorted (a) alphabetieally, (b) by inmate number, and (e) chronologically by prisoners serving the longest time on their parolable life sentence to those serving the shortest time on their parolable life sentence. Each prisoner's current true security classification level will also be shown.
7. All prisoners on the final first-quartile list will be given an in-person or videoconference interview within five months of the date that this order is entered. The parole board will begin to interview promptly, starting with the longest-serving prisoners and working backward, to the extent practicable. 3 In setting interview dates, the date of the last previous review or interview by the board will not be considered. Any first-quartile prisoner whose parole was denied or deferred for any reason, at any stage, and at any time will be considered anew under the terms of this order.
8. The defendants will provide 30 days' notice to the prisoners scheduled for interview so that the prisoners can place material in their file before the parole interview. Parole eligibility reports, and medical and psychological reports, may also be needed on an expedited basis if the board decides to move forward to public hearing.
2 For those lifers dropped based on security level, the defendants will provide the current true security level and the date of the last disqualifYing security classification screen. For those lifers dropped based on another sentence, the defendants will provide the date when the prisoner will first pass the restrictions (of the additional sentence) that currently preclude parole on the life sentence. For those lifers dropped based on already being in the parole pipeline, the defendants will identify the prisoners and track them separately for reporting purposes. 3 For example, first-quartile prisoners who are already scheduled for review need not lose their turn merely to preserve the longest-serving to shortest-serving queue. The defendants may also choose to interview all lifers at a single facility at one time, which would skew the order of review, but would be permitted.
3
............................................................................................ ....... "

Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 4 of 6
9. In making a decision about parole, to the extent possible the defendants will apply
the parole laws, policies, procedures, and standards that were applied by the old parole board in
the decades before 1992.
10. The standard to be applied on this remedial review will include consideration of:
(a) the factors set forth in the parole statute, MCL 791.233(1)(a), attached as Exhibit A;
(b) the factors set forth in Administrative Rule MAC 791.7715 and 7716, attached as Exhibit B;
(c) the factors set forth in Policy Directive PD-DWA-45.05, Parole Board Interview and Decision Criteria (2-10-85), attached as Exhibit C;
(d) any parole guidelines that were used by the old board before 10/1/92, whether required by law or not, including the Commutation and Long Term Release Guidelines ("grid scores" - with advisory/presumptive out-date scores), attached as Exhibit D;
(e) the fact that the old board, in making parole decisions, used the same criteria for parolable lifers and those serving long indeterminate sentences, so that two prisoners with similar crimes and files would serve similar time regardless of the fact that one was on a life sentence and the other was on an LID sentence; and
(f) any assessment of the case by the old board as evidenced by file notes and prior votes.
11. If the parole board decides to go forward to public hearing following a majority
vote in executive session, that decision,4 together with a copy of this order, will be forwarded to
the sentencing or successor judge. If the judge does not object in writing within 30 days, the
case will move forward to public hearing and final vote by the board as soon as practicable.
12. A decision or notice of "no interest" by the board will be treated as a final deci-
sion on the merits of the prisoner's parole for all purposes.
4 The longstanding practice of the board has been to send a report to the sentencing or successor judge. The report typically contains notice of the proposed public hearing, statutory information, psychological and medical evaluations, a parole eligibility report, a summary or copy of the pre-sentence investigation report, and a narrative or summary that includes the interviewing member's observations and impressions, placement information, program and work activities, accomplishments and achievements, criminal history overview, major misconducts, and any other information deemed pertinent by the board or board member.
This practice will continue as in the past, and the word "decision" as used in paragraph 11 is meant to in-
clude these documents.
4
......................................................................................, ....-"

Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 5 of 6
13. In any case in which the defendants decide not to go forward with a prisoner's parole, at any stage, they will provide written reasons to the prisoner, subject to review by the parties and the Court. The defendants will tailor the reasons to the specific case and not merely recite or restate a standard for parole. The seriousness, nature, and circumstances of the offense alone will not be used as the sole reason for denying parole, absent extraordinary circumstances.
14. In implementing the pre-1992 standards, the parole board will be mindful of the fact that for the decades before 1992 the average time served for parolable lifers at the point of parole was 18 years, and that most parolable lifers were paroled between 15-18 years.
IS. Within six months from the date of entry of this order, the defendants will report back to the Court on the results of the first-quartile interviews that they have conducted, setting forth the status of each case. By that time the defendants will also have compiled a second quartile list, to begin the second phase of remedial work.
16. Based on that report, the Court will review the defendants' ongoing willingness and ability to provide constitutional parole review, and will decide whether or not new or different remedies are required.
17. The defendants will continue to review class members outside the final first-quartile list who are already scheduled for review or who will come up for their five-year review during the period of this order. The terms of this order apply to all such prisoners whom the board interviews. The defendants will track and report separately on all paroles and denials of interviewed prisoners who are outside the final first-quartile list. Those prisoners who receive only paper review will be interviewed in the future with their cohort quartile.
18. The defendants have indicated that they are able to meet all the requirements set forth above, and that nothing in this order is beyond the parole board's resources or capabilities.
5

Case 2:05-cv-71318-MOB-VMM Document 168 Filed 02/07/2008 Page 6 of 6

19. The Court enters a declaratory judgment, holding that the defendants have been

and remain in violation of the ex post Jacto clause of the U.S. Constitution, for the reasons stated

in the Court's opinion of October 23, 2007. The Court enters a permanent injunction as set forth

in this order, finding that the terms of the injunction are the least restrictive relief that the Court

can impose to cure the defendants' serious, long-term, and ongoing constitutional violation of the

plaintiffs'rights. The injunction meets the requirements of the Prison Litigation Reform Act, 18

U.S.C. § 3636(a), if that act applies.

20. This order is deemed to be a final order for purposes of appeal.

21. Given that the defendants have failed to provide constitutional parole review to

the plaintiff class since 1992, and given the size of the class, and the serious ongoing harm to the

individual class members (many of whom almost certainly would have been paroled years ago

but for the defendants' conduct), the Court declines to grant a stay of this order pending appeal.

22. The plaintiffs will have 35 days following entry of this order to submit a petition

for costs and/or for attorneys' fees pursuant to 42 U.s.C. § 1988, or otherwise permitted by law.

23. The Court will retain jurisdiction to implement this order and the Court's opinion

of October 23,2007, as well as to monitor the progress of the parole board. Although this order

is intended to cover the first six months of remedial work. it has continuing force and will remain

in effect until a new order is entered.

24. Either party may file motions as issues arise involving the implementation of the

Court's opinion and order of October 23,2007, and this first remedial order.

'1, Dated: February 2008

SO ORDERED.
~(J.~ on. MarIanne Battam U.S. District Judge

6
...... ....................................................................................... ,

 
 Case 2:05-cv-71318-MOB-VMM Document 257 Filed 12/29/2008 Page 1 of 2

Case No. 08-1478 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
KENNETH M. WOJNICZ, Movant - Appellant
and KENNETH FOSTER, et al.,
Plaintiffs v. SHAREE BOOKER, in his/her official capacity as member of the Michigan Parole Board, et al.,
Defendants - Appellees

Appellant/Petitioner having previously been advised that failure to satisfy certain specified obligations would result in dismissal of the case for want of prosecution and it appearing that the appellant/petitioner has failed to satisfy the following obligation(s):
The proper fee was not paid by December 24, 2008. It is therefore ORDERED that this cause be, and it hereby is, dismissed for want of prosecution.
ENTERED PURSUANT TO RULE 45(a), RULES OF THE SIXTH CIRCUIT Leonard Green, Clerk

Issued: December 29, 2008

___________________________________

Case 2:05-cv-71318-MOB-VMM Document 257 Filed 12/29/2008 Page 2 of 2

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 29, 2008

Mr. Kevin R. Himebaugh Office of the Michigan Attorney General P.O. Box 30217 Lansing, MI 48909
Kenneth M. Wojnicz Kinross Correctional Facility 16770 S. Watertower Drive Kincheloe, MI 49788
Re: Case No. 08-1478 , Kenneth Foster, et al v. Sharee Booker Originating Case No. : 05-71318 : 05-72378
Dear Mr. Wojnicz and Counsel:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure No mandate to issue

s/Kathryn Kasner Case Manager Direct Dial No. 513-564-7014 Fax No. 513-564-7096

 
 Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 1
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Case Nos. 08-1371, 08-1372, 08-1626 ____________________________________________
KENNETH FOSTER, et al.,
Plaintiffs-Appellees, v.
SHAREE BOOKER, in her official capacity as a member of the Michigan Parole Board, et al.,
Defendants-Appellants. _____________________________________________

PLAINTIFFS-APPELLEES’ PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Dated: March 2, 2010

Paul D. Reingold (P27594) Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 - pdr@umich.edu

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 2
REQUIRED STATEMENT Under Fed. R. App. P. 35 and 40, the plaintiff class moves for rehearing and rehearing en banc, for the following reasons: 1. Consideration by the full Court is necessary because the panel’s decision conflicts with prior decisions of (a) this Court, see Dyer v. Bowlen, 465 F.3d 280 (6th Cir. 2006), and Michael v. Ghee, 498 F.3d 372 (6th Cir. 2007); (b) sister circuits, see Mickens-Thomas v. Vaughan, 321 F.3d 374 (3rd Cir. 2003) (Mickens I), and 355 F.3d 294 (3rd Cir. 2004) (Mickens II), see also Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006); and (c) the U.S. Supreme Court, see Garner v. Jones, 529 U.S. 244 (2000). Fed. R. App. P. 35(b)(1)(A). 2. The case involves a question of exceptional importance. The panel’s decision converts the sentences of some 1,000 Michigan prisoners from parolable life to life without any real possibility for parole. The stakes of the case are huge. Fed. R. App. P. 35(b)(1)(B). 3. On the facts, the panel’s decision makes the wrong comparison (for ex post facto purposes) between the pre- and post-1992 parole regimes, and gives no weight to undisputed evidence supporting the district court’s findings.
1

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 3
Summary of the Case Before 1992: For the better part of five decades, the Michigan parole board applied a policy of “equal time for equal crimes,” regardless of whether prisoners were serving long indeterminate (LID) or parolable life sentences.1 The board’s long-term policies also favored parole for well-behaved LID prisoners soon after they passed their minimum term. Because the board used the same parole criteria and scoring guidelines for LID prisoners and for lifers, lifers benefitted by being paroled at nearly the same time as their LID counterparts. R.143, Op., at 21-28. These norms remained the same for decades, under both Republican and Democratic administrations. Board members were typically experienced corrections professionals. They had civil service status with life tenure, and they answered to a bipartisan state corrections commission. R.143, Op., at 7. For decades the average time lifers served was 18 years. Most lifers were paroled well before 18 years, but “all it took was a few inmates with much longer
1 In Michigan all serious crimes except Murder I could be punished by “life or any term of years.” On an LID sentence (like 25-40 years), the board would not consider a prisoner for parole until the minimum term (less credits) was served. On a life sentence, however, the board could grant parole after a flat ten years. R.143, Opinion, at 24-25. As a result, in plea negotiation and at sentencing, a life sentence was viewed as the better choice, because it gave defendants a chance for earlier parole. Id. Because the board could not know from the sentence alone if the judge meant to be harsher or more lenient in imposing a life sentence, it treated the two sentences the same for parole purposes. Id.; R.124, Decls., Exhs. 2-4, 10.
2

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 4
time served [at release] to raise the mean considerably.” R.124, Exh. 5, ¶ 7. From the 1940s to the 1980s, the old board’s five-year-averaged parole rate for lifers never fell below five percent.2 Lifers were also entitled to in-person parole interviews every 1-3 years, to written reasons for adverse parole decisions, and to at least some state court appellate review.3 R.143, Op., at 6.
The New Board: In 1992, Michigan’s new governor and legislature decided to “get tough on parole.” They passed legislation that abolished the old board and created a new larger board. The 1992 law took board members out of civil service and made them answerable to the executive. The law replaced life tenure with 4-year terms. It required that at least four members of the board have no corrections experience. It reduced the frequency of lifer interviews from a 4+2+2 year schedule to a 10+5+5 year schedule. R.143, Op., at 6-7.
Further amendments in 1999 took away all appellate rights, allowed prosecutors and crime victims to appeal grants of parole, changed mandatory in-person interviews to file reviews, and waived written reasons for nearly all lifer denials.
2 The parole rate is the number of people who were paroled divided by the number of people who were eligible for parole (that is, who had served ten years) for any given period. 3 The board’s decision not to move forward with a lifer parole was treated the same as a board decision to deny parole in an LID case. The lifer decision triggered all the same rights or protections, even though in a lifer case the prisoner also had to have a public hearing before being paroled. R.124, Decls., Exhs. 2-5.
3

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 5
All of these statutory changes (and the formal and informal policy changes that flowed from them) were applied retroactively. In fact, because the 1992 law raised the parole-eligibility date to 15 years for crimes committed after 1992, the entire new parole regime applied only retroactively (to the pre-‘92 plaintiff class) until 2007 – when the first post-1992 lifers became parole-eligible after 15 years.
The governor packed the new board with people from law enforcement. When the new board took over in late 1992, it postponed all regular lifer reviews, citing the new 5-year review schedule. In 1993-94, the new board limited its lifer docket to the so-called “pipeline” paroles – the 39 lifers whom the old board had approved for public hearing in 1992. The new board denied most of those “pipeline” cases. R.124, Gabry Decl., Exh 6.
The new board began processing its own lifer cases in 1995. From 1995 to 2004, it paroled on average just over two lifers a year, even as the pool of eligible lifers reached all-time highs. R.130, Exh. 51. For those years the new board’s parole rate fell below .2 percent.4 The new board boasted that “life means life,” and it admitted that it viewed (and treated) lifers as categorically different from LID prisoners. The new board based its denials almost exclusively on the crime,
4 The defendants claimed 47 lifer paroles from 1995-2004. But they inflated their numbers by counting non-violent “drug lifers” who were not class members. The district court rightly rejected this evidence. R.143, Op., at 38. The correct number is 23 lifer paroles from 1995-04. R.130, Chart, Exh. 51.
4

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 6
without regard to the prisoner’s rehabilitation or the sentencing judge’s intentions. R.143, Op., at 24-31. Half the class has now served 27-50 years. The minimum time served by class members is now 18 years (1992 to 2010).
Michigan judges were dismayed. They expected that well-behaved lifers would be out in 12-18 years, and that young first-offenders might serve 10-12 years. R.128-130, Exhs. 35-38 (judges’ letters supporting parole or objecting to the new board’s “life means life” policy; judicial survey; sentencing transcripts).
The plaintiffs submitted evidence from two former MDOC directors, the head of the MDOC program bureau, every living member of the old parole board from 1962 to 1992, the administrative assistants to both boards, the only person to serve on both boards, a member of the new board, as well as the first chair (and chief architect) of the new board. These were hardly what could be described as “pro prisoner” advocates, yet they were unanimous in their conclusion that but for the statutory and policy changes of the 1990s, many if not most of the pre-1992 lifers would have been released long ago. See R.128, Decls., Exhs. 2-12. As the first new board chair Gary Gabry put it:
We created a system of injustice, one without hope, one based on disparity and arbitrary decisions.... [T]he decisions made on lifers almost ignore the criteria the MDOC has in place, such as risk level and management level.... Nowhere is there...more disparity or arbitrariness than in the parole decision process as it applies to the older [pre-‘92] lifer population. R.128, Gabry, Exh. 22.
5

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 7
Proceedings to Date: The district court granted summary judgment to the plaintiffs on their ex post facto claim and entered a modest remedial order. R.168, Judgment and Order. Motion panels of this Court twice denied requests for stays. The merits panel reversed and remanded, with instructions to grant summary judgment to the defendants.
ARGUMENT 1. The Panel Decision Is at Odds with Sixth Circuit, Sister Circuit,
and U.S. Supreme Court Law In California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), and Garner v. Jones, 529 U.S. 499 ((2000), the U.S. Supreme Court set out the legal standard to be applied in analyzing an ex post facto claim of the sort presented here – where the changes are to the parole regime, rather than to the substantive statutory standard. This Court has read those cases to hold that the test is whether the cumulative changes “present a significant risk of increasing the ... amount of time actually served.” Michael v. Ghee, 498 F.3d 372, 383 (6th Cir. 2007). See also Fletcher v. Reilly, 433 F.3d 867, 869-70 (D.C. Cir. 2006) (“the critical question ... is whether, as a practical matter, the retroactive application creates a significant risk of prolonging an inmate’s incarceration”). A prisoner need not show that his prison time has actually been increased, but only that he suffers the “sufficient risk.” See Dyer v. Bowlen, 465 F.3d 280, 288 (6th Cir. 2006).
6

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 8
A good example of how a court should review such retroactive changes to a parole regime can be found in Mickens-Thomas v. Vaughan, 321 F.3d 374 (3rd Cir. 2003), and 355 F.3d 294 (3rd Cir. 2004). In Mickens-Thomas, Pennsylvania had revamped its parole laws in the wake of the election of a new governor, who ran on an anti-crime platform. There, as here, although the substantive statutory standard for parole did not change, the governor was able to create a new board largely of his own choosing. Parole rates dropped precipitously as a result, the same as in Michigan. See R.13, Parole Rate Chart, Exh. 53.
In Mickens I, the court reviewed a range of evidence comparing the two regimes. It looked at written policies and procedures, statements of the two boards, an internal review charting the changes after the new board took office, changes in parole rates, etc. “We look at all of the Board’s actions and statements of policy to determine how it interpreted the statutory provisions.” Id., at 378. The court concluded that the new board was retroactively applying a harsher standard, in violation of the ex post facto clause. The Third Circuit said:
Although some discretion might still exist within the pre-1996 parameters, a parole decision that fails to address any of the criteria mandated by Board policy, such as institutional recommendations, willingness to undergo counseling and educational achievements, and instead utterly ignores all factors counseling in favor of release, falls outside of the realm of the legitimate exercise of discretion under the pre-1996 policies. Id., at 387. The court found, based on all the evidence, that the board “mistakenly
7

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 9

construed [the amendments] to signify a substantive change in its parole function.”

Id., at 391. The court remanded for the parole board to re-evaluate the case, giv-

ing “genuine consideration and due regard to the factors prescribed by the Board’s

pre-1996 policies.” Id.

When the board again denied parole, the Third Circuit reviewed the board’s

reasons in detail. The court found ongoing ex post facto violations, and granted

the petitioner an unconditional writ. Mickens-Thomas II, at 310.

In Mickens-Thomas, as here, the board argued that it was simply exercising

its discretion. The Third Circuit, however, noted that:

A Parole Board policy, although partly discretionary, is still subject to ex

post facto analysis when there are sufficiently discernable criteria to suggest

to a reviewing body that the new retroactive policies are being applied

against the offender’s interest.

*

*

*

*

*

*

That a Board or legislature may learn from experience does not mean that

those who were sentenced at an earlier juncture may now be more severely

re-sentenced in the light of newly-found wisdom. This is precisely what the

Ex Post Facto clause prohibits.

Id., at 387. In short, “The presence of discretion does not displace the protections

of the ex post facto clause.” Garner, supra, at 253, see also Dyer, supra, at 288.

The Foster-Bey panel, on the other hand, staked out the opposite position.

Slip Op. at 11-13. The panel found, as a matter of law, that because the board al-

ways had discretion, it retained unlimited (and unreviewable) discretion to apply

new, harsher criteria retroactively to the plaintiff class:

8

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 10
The decision whether to grant parole has always been within the Board’s discretion. ... Therefore, from the time plaintiffs committed their offenses, there was always the possibility the Board would exercise its discretion in a way that would result in fewer paroles and longer prison terms.
Id., at 12. The panel effectively found that because the statutory standard itself did
not change, the plaintiffs could never prevail, because the board always retained
discretion. Id., at 12-14. By the same token, the plaintiffs could never show that a
retroactive change was attributable to specific amendments, because the changes
might be attributable only to the manner in which the board exercised its discre-
tion.5 Id.,at 12-16.
In sum, instead of evaluating the proofs – as the Third Circuit did in Mick-
ens-Thomas, and as this Court did in Michael and Dyer, and as the district court
did below – the panel held as a matter of law that the ex post facto clause cannot
be violated absent a change in the substantive statutory standard. This is an outlier
position that by itself justifies en banc review.6
5 This argument proves too much, as it could be made with equal force even in cases where the substantive statutory standard changes. According to the panel, one can simply never know whether the change in the board’s practice is attributable to the amendment, or to the board’s “legitimate exercise of its discretion.” Slip Op. at 13-21. 6 The panel relies on a quote from Justice Scalia in Garner to the effect that “an inmate has no cause to complain that the Board in place at the time of his offense has been replaced by a new, tough-on-crime board....” Slip Op. at 15. But Justice Scalia’s comment comes from a concurrence that no other member of the Court joined. See Garner, 529 U.S. at 249 et seq.
9

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 11
The panel tried to support its position by arguing that a parole board will inevitably change over time, producing gradual fluctuations in the relative harshness or leniency of its decisions. Slip Op. at 15. This case itself, however, is proof that such long-term organic changes present little risk, and are categorically different from what occurred here. From 1942 to 1992, the membership of the Michigan parole board changed many times, without ever applying harsh new criteria retroactively, to a degree that would implicate the ex post facto clause.7
But what happened in 1992 was not a long-term or organic change. The old board was fired en masse and supplanted by a new board for the specific political purpose of retroactively increasing the time that Michigan prisoners would serve. That is the very essence of an ex post facto violation. See e.g., Lynce v. Mathis, 519 U.S. 433 (1997), and Weaver v Graham, 450 U.S. 24 (1981). Indeed, at bottom the district court found that the board stopped exercising its discretion, and made a categorical decision not to parole lifers as a class. R.143, Op., at 20, 31.
The panel’s decision is equally an outlier as to specific statutory changes. In Morales and Garner, the U.S. Supreme Court held that the reduced frequency
7 For 50 years sitting board members trained and acculturated new members in such a way that the center always held. Even from 1985 to 1992, when the old board’s lifer parole rates fell, the fall was not due to a shift in board philosophy, applied retroactively, but to a severe lack of resources in the face of an exploding prison population. See R.124, Decls., Exhs. 2-5, and R.143, Opinion, at 39-42.
10

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 12
of parole review is not necessarily an ex post facto violation: the question is whether the less frequent review creates a “sufficient risk of increased punishment.” Both cases held that because the challenged state schemes required individualized assessment before the less frequent review was invoked, and because both states permitted the parole board to see worthy candidates on an accelerated schedule, the prisoners had not proven the requisite risk. (Garner remanded for discovery.)
In Shabazz v. Gabry, 123 F.3d 909 (6th Cir. 1997), this Court held the same thing. Shabazz was a facial challenge limited to the 1992 amendment that reduced lifer parole review to a 10+5+5 schedule. This Court’s denial of relief hinged on two facts, namely (1) that “no reliable statistical analysis was available ... because the statute had been in effect for too short a period,” and (2) that “other viable opportunities for parole” existed apart from the 5-year reviews. Id., at 914.
Here, however, the plaintiffs proved, and the district court found, that in practice the 5-year review was automatic. R.143, Op., at 31-34. The MDOC director in the 1990s could not recall a single case of accelerated review other than for terminal illness, and the sitting board chair seemed unaware that shorter than 5-year intervals were even possible. See R.130, Exh. 39, at 74-77; Exh. 42, at 41; Exh. 43, at 67, 84. Whether the prisoner had served 15 or 40 years, and whether the vote in executive session (to deny parole) was 10-0 or 6-4, all lifer reviews were set out five years, by computer. The new board created an irrebuttable pre-
11

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 13
sumption that if a person was not parolable today, he or she would not be parol-
able for five more years. Contrary to Morales, Garner, and Shabazz, the panel
found no ex post facto violation, because any untoward effect might equally be
due to “the Board’s stricter exercise of its discretion.” Slip Op. at 16.8
2. The Panel Made the Wrong Comparison for Ex Post Facto Purposes
In evaluating the parole release rates,9 the panel erred in using 1985-92 as
the linchpin period for comparison. The ex post facto clause requires a court to
compare the parole regime in effect when the prisoner committed the crime with
the regime in effect when the prisoner comes up for parole. Here, roughly 60 per-
8 On similar facts, the South Carolina Supreme Court found a per se ex post facto violation. Distingishing Garner, the South Carolina court said:
... unlike the Georgia Parole Board’s rules, the South Carolina statute automatically increases violent offenders’ parole consideration from every year to “every two years. ... South Carolina’s system does indeed create “a significant risk of prolonging respondent’s incarceration” by one year without any chance for review....
Jernigan v. State, 340 S.C. 256, 264 n.5 (S.C. 2000). 9 The panel suggests that it is an open question whether, in comparing parole regimes, one should look at the number of prisoners paroled per year as opposed to parole rates. See Slip. Op., at 17. This cannot be correct. As the district court understood, if the old board paroled 10 people out of 100 eligible lifers in a given year, its parole rate was 10 percent. But if the new board paroled 10 people in a given year (not that it ever did) out of 1,000 eligible lifers, its parole rate would be just one percent. To inflate their performance, the defendants argued in both courts that only the numerator – the raw number paroled – matters. This is statistical hogwash, which the district court correctly rejected. R.143, Opinion, at 37.
12

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 14
cent of the plaintiff class committed their crimes before 1985, at a time when the old board’s historical 5-year-averaged parole rate had never fallen below five percent. Thus, even if the panel were correct (that there was no significant difference between the last years of the old board and the first decade of the new board), the panel’s holding could not be applied to the bulk of the class who committed their crimes before 1985. The undisputed evidence is that the pre-1985 class members were at least 25 times more likely to be paroled under the old board (when they committed their crimes) than under the new board from 1995-2004.10
Looking at the old board’s decisions from 1985-92, the panel concluded that the parole rates between the two boards were not significantly different. The numbers may all be small, but if people who committed their crimes from 1985-89 had a five-year-averaged chance for parole of .6 percent, and ten years later (under the new board) from 1995-99 they had a chance of only .2 percent, or from 2000-04 a chance of only .15 percent, see Slip Op. at 19, their collective chances for parole dropped by a factor of three and four, respectively – hardly an insignificant drop.
10 Lifers who were eligible for parole from 1985-92 may have had a different ex post facto claim that they could have brought against the old board: namely that its policy of focusing its funding and resources on non-lifers, thereby postponing lifer interviews and delaying public hearings even in the lifer cases it approved, created a significant risk of increased punishment. The fact that such a claim might have been possible then, however, does not bar the current class from bringing its own ex post facto claim against the new board, based on its “life means life” policy and the 1992 and 1999 statutory changes.
13

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 15
Moreover, as to the period from 1990-92, the panel gave no weight to the fact that the outgoing board in 1992 approved 47 class members for public hearing. Under the old board, such approval was tantamount to granting parole, as the old board rarely denied a lifer parole after a public hearing. R.124, Exh. 8, at 2. Although eight of the “pipeline” approvals were blocked by state-court judicial vetoes, the 39 remaining cases still amounted to more than five percent of the parole-eligible lifer population. Thus, in 1992, the old board was on course to match its long-term historical lifer parole rate of five percent.
Instead of considering this evidence, the panel ignored the old board’s approvals for public hearing. Slip Op. at 19, n.6. But these cases are ideal “comparables” that highlight the radical difference in the two boards’ approaches to lifer parole. The new board not only rejected most of the old board’s “pipeline” people in 1993-94 – blocking their public hearings or voting against their paroles – but from 1995 to 2004 (and beyond) the new board repeatedly denied public hearings to these very same candidates, and routinely set the cases five years out before the next possible review.
Many of these people were still in prison when this case was filed in 2005. Many remain in prison today, 18-25 years after the old board first approved them for public hearing. Garner and Dyer and Mickens-Thomas require this Court to look at all the evidence. The 1992 public hearing cases show that under the new
14

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 16

board, “increased punishment” was not just a risk, but a certainty.

Finally, as to the numbers, if from 1995-04 the new board was not applying

a harsher standard, then the change in lifer paroles produced by this litigation is

hard to explain. The lower court entered an injunction requiring the new board to

apply (to the extent possible) “the parole laws, policies, procedures, and standards

that were applied by the old board in the decades before 1992.” R.168, Order, at

4. Since 2008, the board has approved at least 90 members of the class for public

hearings, and to date more than 40 class members have been paroled. The district

court enjoined the new board’s “life means life” policy, with immediate results.

To undo the injunction will doom the plaintiff class to mandatory life in prison.

Conclusion

Because the panel decision is at odds with Sixth Circuit, sister circuit, and

U.S. Supreme Court case law, and because the panel made the wrong comparison

for ex post facto purposes, the plaintiffs request rehearing and rehearing en banc.

Respectfully submitted,

Dated: March 2, 2010

s/ Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu - P27594

15

Case: 08-1626 Document: 00619402907 Filed: 03/02/2010 Page: 17

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Case Nos. 08-1371, 08-1372, 08-1626 ____________________________________________

KENNETH FOSTER, et al.,

Plaintiffs-Appellees, v.

SHAREE BOOKER, in her official capacity as a member of the Michigan Parole Board, et al.,

Defendants-Appellants. _____________________________________________

Proof of Service

The plaintiffs’ motion for rehearing and rehearing en banc was filed on

March 2, 2010, using the Court’s ECF system, which will send e-mail notice to all

attorneys of record.

Dated: March 2, 2010

s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for the Plaintiffs pdr@umich.edu - P27594

16

 
 Case: 08-1626 Document: 006110270085 Filed: 04/14/2010 Page: 1

Nos. 08-1371/1372/1626

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Apr 14, 2010
LEONARD GREEN, Clerk

KENNETH FOSTER, ET AL.,

)

)

Plaintiffs-Appellees (08-1371/1626);

)

Plaintiffs/Cross-Appellants (08-1372),

)

v.

)

)

SHAREE BOOKER, IN HIS/HER OFFICIAL CAPACITY AS MEMBER )

OF THE MICHIGAN PAROLE BOARD, ET AL.,

)

)

Defendants-Appellants (08-1371/1626);

)

Defendants/Cross-Appellees (08-1372).

)

O R D E R

* BEFORE: KENNEDY and ROGERS, Circuit Judges; and HOOD, District Judge.
The court having received a petition for rehearing en banc, which was circulated to all active judges of this court, none of whom requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the cases. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

* Hon. Joseph M. Hood, Senior United States District Court Judge for the Eastern District of Kentucky, sitting by designation.

 
 2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 1 of 6 Pg ID 3808

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN __________________________________

KENNETH FOSTER-BEY, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, vs.

File No. 05-CV-71318-DT Hon. Marianne O. Battani

BARBARA SAMPSON, et al., in their official capacities,

U.S. Mag. Judge Virginia Morgan

Defendants. ______________________________________________________________________________

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiffs 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Kevin Himebaugh (P53374) Assistant Attorney General Attorney for Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

ORDER ON THE DEFENDANTS’ SECOND REMEDIAL REPORT The defendants filed their second remedial report on April 30, 2009. (DE #262.) Pursuant to the Court’s briefing schedule, the plaintiffs filed a response on August 31, 2009. (DE #265). The defendants filed a reply on September 21, 2009. (DE #266.) The Court then held a review hearing on October 19, 2009. The Court having reviewed the documents and having heard the arguments of counsel, IT IS ORDERED: I. Voting 1. The defendants shall provide to the plaintiffs and the Court the voting records of
1

2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 2 of 6 Pg ID 3809
the parole board on all Foster-Bey cases. The voting records shall show, for each case:
a. who conducted the interview; b. the interviewer’s initial recommendation to the board (to approve the case,
deny it, or pend it for further investigation); c. how each member of the board voted on the case (i.e., yes, no, abstention,
did not participate, or vote unknown/not recorded); and d. for those cases that go to public hearing, how each member of the board
voted on the case (i.e., yes, no, abstention, did not participate, or vote unknown/not recorded) following the public hearing.
2. If, in the past, all votes have not been recorded, that practice must change. The
votes of all members shall be recorded for each Foster-Bey approval or denial for public hearing,
and for each approval or denial after public hearing.
II. Monthly Data Reporting
3. The defendants shall supply to the plaintiffs and the Court a monthly updated re-
port showing, for each quarter of the class (for which interviewing has begun):
a. the composition of the quarter by prisoner number and name; b. the date of the Foster-Bey interview; c. the decision on the case (to approve or deny public hearing); d. the date of the decision; e. in approval cases, whether or not the approval was vetoed by the judge; f. in approval cases, the date the public hearing occurred or is scheduled; g. the decision following the public hearing; and h. the date the parole occurred or is scheduled.
4. In judicial veto cases, the defendants should identify the objecting judge and
report the status of any commutation proceeding.
5. In denial cases, the defendants should continue to provide to the plaintiffs the pa-
role summary, together with the psychological records referenced in Part IV below, as well as
the Foster-Bey denial form.
III. Prisoners Approved by the Old Board But Denied Under Foster Bey
6. The defendants shall review the cases of those prisoners who were approved for
2

2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 3 of 6 Pg ID 3810
public hearing by the old board but were denied following their Foster-Bey interview.
7. The defendants shall explain to the Court why these prisoners were denied in
2008-09 (assuming that the board was using the pre-1992 standards), when they were approved
for public hearing by the old board (using those same standards) some 16-25 years ago.
8. The list of prisoners to be reviewed includes:1
a. Scola #121986 b. Gaddie #129053 c. Middleton #121894 d. Fulgham #124071 e. Anderson #137843 f. Rohn #142544 g. Barfield #144360 h. Koss #144943 i. Hernandez #148497 j. Rodriguez #149675
9. The defendants may wish to review the cases of prisoners who had very favorable
comments by the old board – in some cases even stronger parole files than the files of those
listed above – but whose cases were denied under Foster-Bey. These include:
a. Deruyscher #120313 b. Sutherland #122877 c. Branoff #125417 d. Lange #134456 e. Hickman #135237 f. Carson #136681 g. Meagher #137209 h. Valiroso #139042 i. Carter #140137 j. Foster #142187 k. Bolden #142399 l. Robins #151306
1 This list comes from comparing the list of 47 prisoners who were recommended for public hearing by the old board (see DE #130, Plaintiffs’ Summary Judgment Exh. #49), with the list of Foster-Bey denials reported to date (see Defendants’ Second Remedial Report, cited above). It is possible that some of the listed people have since been commuted or released, or died.
3

2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 4 of 6 Pg ID 3811
IV. Psychological Records
10. In every case in which the interviewing board member recommends denial based
in part on subjective reasons (e.g., lack of remorse, lack of insight, failure to take responsibility
for the crime, lack of sympathy for the victim, failure to understand the crime, and so forth), the
prisoner’s complete psychological reports shall be attached to the parole summary and be avail-
able for on-line review by all other members of the board before they vote on the case.
11. Regardless of the initial recommendation, in every case in which the board denies
a public hearing based in part on these subjective reasons, the prisoner’s complete psychological
reports shall be attached to the parole summary and be available for on-line review by all other
members of the board before they vote on the case.
V. Report
12. By November 19, 2009, the defendants, through the board chair, shall file a report
to the Court addressing the following issues:
a. why there is such a long lag time between the Foster-Bey interview and the decision on the case (in those cases that are not denied immediately);
b. why so few approved Foster-Bey cases have been set for public hearing, (especially compared to commutation and drug-lifer cases since 1/1/08);
c. why some interviewing board members are quickly denying a high percentage of their Foster-Bey cases, while other board members are quickly approving or pending for further investigation a high percentage of their Foster-Bey cases;
d. why – despite this disparity in initial recommendations – in denial cases the vote to deny is unanimous in nearly every case (based on the voting records produced to date);
e. why – despite this disparity in initial recommendations – in approval cases the vote to approve is unanimous in most cases (based on the voting records produced to date);
f. why in denial cases the next review date is automatically set out five years from either the last regular parole review date or the Foster-Bey interview date (if more than five years have passed since the last regular review date);
g. how the board can determine which are the strong cases and which are the
4

2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 5 of 6 Pg ID 3812
weak cases, if there are no close votes and no file notes that distinguish among the cases for purposes of setting the next review date 1-5 years out; h. if a case is initially recommended for denial by the interviewer, what the process has been for review by the entire board – that is, have “initial denial” cases been discussed in executive session. 13. For each of these items the report should discuss what steps the board will take to address the problem or issue identified. VI. Other Relief 14. The Court’s first remedial order remains in effect, supplemented by this order. 15. The Court will reserve for another day the plaintiffs’ suggestion that the FosterBey cases be handled by a five-member panel of the board (which would make a recommendation to the full board). 16. The plaintiffs suggest that such a process would result in faster and more consistent decision-making, and would allow for comparative judgments that would permit the board to assess which cases should be set for early review and which can be set for longer review without risk of extra punishment. 17. The Court will reserve for another day the plaintiffs’ suggestion that the FosterBey cases be reviewed by two members of the board, the same as in LID (long indeterminate) cases, to ensure greater consistency of decision-making among the members of the board. VII. Next Review 18. The Court has set a telephone conference for Thursday, December 3, 2009, at 3:30 p.m., to address the issues set forth above.
SO ORDERED. s/Marianne O. Battani Hon. Marianne O. Battani U.S. District Judge
5

2:05-cv-71318-MOB-VMM Doc # 268 Filed 11/03/09 Pg 6 of 6 Pg ID 3813 Dated: November 3, 2009 Approved as to form:
s/ Paul D. Reingold Attorney for Plaintiffs
s/ Kevin Himebaugh Attorney for Defendants
6

 
 2:0C5a-csve-:70183-1183-7M1OB-DVoMcMumeDnot:c0#0621679348F9ile1d2 11/F1i8le/d0:911P/1g81/2o0f049 PPgaIgDe:31814

No. 08-1371; 08-1372; 08-1626
UISIITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

KENNETH FOSTER, et a!.,

)

Plaintiffs-Appellees,

)

)

v.

)

) SHAREE BOOKER, in her official capacity as a )

member of the Michigan Parole Board, et al.,

)

)

Defendants-Appellants.

)

)

NOV 1 8 2009 LEONARD GREEN, Clerk

BEFORE: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.* The defendants appeal the district court’s grant ofsummary judgment for the plaintiffs in this
civil rights action alleging that the retroactive application of changes to the State of Michigan’s parole laws violates the Ex Post Facto Clause ofthe United States Constitution. The defendants now move to stay (1) the district court’s original injunctive order; (2) the district court’s subsequent order, issued on November 3, 2009, in response to the defendants’ second remedial report; and (3) all further district court proceedings pending resolution ofthe case on appeal. The plaintiffs oppose the defendants’ motion for a stay.
When deciding whether to grant a motion for a stay pending appeal, this court considers the following four factors: (1) the movant’s likelihood of success on the merits of the appeal; (2) the likelihood of irreparable harm to the movant if the motion for a stay is denied; (3) the likelihood of harm to others if the motion for a stay is granted; and (4) whether the public interest weighs in favor

*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

2:0C5a-csve-:70183-1183-7M1OB-DVoMcMumeDnot:c0#0621679348F9ile1d2 11/F1i8le/d0:911P/1g82/2o0f049 PPgaIgDe:32815
Nos. 08-1371, 08-1372; 08-1626 Foster v. Booker of granting a stay. Mich. Coal. ofRadioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (citation omitted). None of these factors, taken alone, is a “prerequisite[] that must be met”; rather, these four factors “are interrelated considerations that must be balanced together.” Id. (citation omitted).
This court decided previously, after consideration of each of the defendants’ two earlier motions, that a stay of the district court’s original injunctive order was not warranted. In both instances, this court indicated, however, that “[s]hould the district court impose the ‘more drastic and intrusive relief’ that the defendants fear, they may renew their motion for a stay.” The district court’s November 3, 2009, order imposes significant additional requirements upon the defendants. In particular, the requirement that a prisoner’s complete psychological reports be attached to the prisoner’s parole summary and made available for review online by all Parole Board members before they vote “imposes a substantial burden. .. and requires implementation of a practice that
was not required, implemented or utilized prior to 1992.” Sampson Aff. ¶ 24, Nov. 2, 2009. Indeed,
even the plaintiffs noted that the “psychological records may be burdensome to compile.” Pis. Appellees’ Resp. 6.
The defendants have demonstrated a sufficient likelihood of success on the merits, when considered with the other factors, to warrant a stay of the district court’s most recent order. Moreover, the defendants have shown a sufficient likelihood of irreparable harm because compliance with the district court’s most recent order will require a significant expenditure of time and money. The public interest also weighs in favor of granting a stay of the district court’s most recent order until this court decides the issues on appeal. Finally, it is unlikely that the plaintiffs will
-2-

2:0C5a-csve-:70183-1183-7M1OB-DVoMcMumeDnot:c0#0621679348F9ile1d2 11/F1i8le/d0:911P/1g83/2o0f049 PPgaIgDe:33816 Nos. 08-1371; 08-1372, 08-1 626 Foster v. Booker suffer significant harm if this court grants the defendants’ motion for a stay of the district court’s most recent order but the original injunctive order remains in effect.
Accordingly, the defendants’ motion for a stay of the district court’s November 3, 2009, “Order on the Defendants’ Second Remedial Report” is GRANTED. For the reasons provided in our orders filed on October 30, 2008, and November 18, 2008, however, the defendants’ motion for a stay of the district court’s original injunctive order and all further district court proceedings pending resolution of the case on appeal is DENIED.
ENTERED BY ORDER OF THE COURT. Leonard Green Clerk
-3-

2:0C5a-csve-:70183-1183-7M1OB-DVoMcMumeDnot:c0#0621679348F9ile1d3 11/F1i8le/d0:911P/1g84/2o0f049 PPgaIgDe:31817

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 18, 2009

Mr. Kevin R. Himebaugh Office of the Michigan Attorney General P.O. Box 30217 Lansing, MI 48909
Mr. Paul D. Reingold Michigan Clinical Law Program 801 Monroe Street Suite 363 Legal Research Building Ann Arbor, MI 48109
Re: Case No. 08-1371/08-1372/08-1626, Kenneth Foster, et al v. Sharee Booker, et al Originating Case No. : 05-71318
Dear Sir or Madam,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Yvonne Henderson Case Manager Direct Dial No. 513-564-7031 Fax No. 513-564-7096

 
 Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 1
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Case Nos. 08-1371, 08-1372, 08-1626 ____________________________________________
KENNETH FOSTER, et al.,
Plaintiffs-Appellees, v.
SHAREE BOOKER, in her official capacity as a member of the Michigan Parole Board, et al.,
Defendants-Appellants. _____________________________________________

PLAINTIFFS-APPELLEES’ PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Dated: March 2, 2010

Paul D. Reingold (P27594) Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 - pdr@umich.edu

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 2
REQUIRED STATEMENT Under Fed. R. App. P. 35 and 40, the plaintiff class moves for rehearing and rehearing en banc, for the following reasons: 1. Consideration by the full Court is necessary because the panel’s decision conflicts with prior decisions of (a) this Court, see Dyer v. Bowlen, 465 F.3d 280 (6th Cir. 2006), and Michael v. Ghee, 498 F.3d 372 (6th Cir. 2007); (b) sister circuits, see Mickens-Thomas v. Vaughan, 321 F.3d 374 (3rd Cir. 2003) (Mickens I), and 355 F.3d 294 (3rd Cir. 2004) (Mickens II), see also Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006); and (c) the U.S. Supreme Court, see Garner v. Jones, 529 U.S. 244 (2000). Fed. R. App. P. 35(b)(1)(A). 2. The case involves a question of exceptional importance. The panel’s decision converts the sentences of some 1,000 Michigan prisoners from parolable life to life without any real possibility for parole. The stakes of the case are huge. Fed. R. App. P. 35(b)(1)(B). 3. On the facts, the panel’s decision makes the wrong comparison (for ex post facto purposes) between the pre- and post-1992 parole regimes, and gives no weight to undisputed evidence supporting the district court’s findings.
1

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Summary of the Case Before 1992: For the better part of five decades, the Michigan parole board applied a policy of “equal time for equal crimes,” regardless of whether prisoners were serving long indeterminate (LID) or parolable life sentences.1 The board’s long-term policies also favored parole for well-behaved LID prisoners soon after they passed their minimum term. Because the board used the same parole criteria and scoring guidelines for LID prisoners and for lifers, lifers benefitted by being paroled at nearly the same time as their LID counterparts. R.143, Op., at 21-28. These norms remained the same for decades, under both Republican and Democratic administrations. Board members were typically experienced corrections professionals. They had civil service status with life tenure, and they answered to a bipartisan state corrections commission. R.143, Op., at 7. For decades the average time lifers served was 18 years. Most lifers were paroled well before 18 years, but “all it took was a few inmates with much longer
1 In Michigan all serious crimes except Murder I could be punished by “life or any term of years.” On an LID sentence (like 25-40 years), the board would not consider a prisoner for parole until the minimum term (less credits) was served. On a life sentence, however, the board could grant parole after a flat ten years. R.143, Opinion, at 24-25. As a result, in plea negotiation and at sentencing, a life sentence was viewed as the better choice, because it gave defendants a chance for earlier parole. Id. Because the board could not know from the sentence alone if the judge meant to be harsher or more lenient in imposing a life sentence, it treated the two sentences the same for parole purposes. Id.; R.124, Decls., Exhs. 2-4, 10.
2

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 4
time served [at release] to raise the mean considerably.” R.124, Exh. 5, ¶ 7. From the 1940s to the 1980s, the old board’s five-year-averaged parole rate for lifers never fell below five percent.2 Lifers were also entitled to in-person parole interviews every 1-3 years, to written reasons for adverse parole decisions, and to at least some state court appellate review.3 R.143, Op., at 6.
The New Board: In 1992, Michigan’s new governor and legislature decided to “get tough on parole.” They passed legislation that abolished the old board and created a new larger board. The 1992 law took board members out of civil service and made them answerable to the executive. The law replaced life tenure with 4-year terms. It required that at least four members of the board have no corrections experience. It reduced the frequency of lifer interviews from a 4+2+2 year schedule to a 10+5+5 year schedule. R.143, Op., at 6-7.
Further amendments in 1999 took away all appellate rights, allowed prosecutors and crime victims to appeal grants of parole, changed mandatory in-person interviews to file reviews, and waived written reasons for nearly all lifer denials.
2 The parole rate is the number of people who were paroled divided by the number of people who were eligible for parole (that is, who had served ten years) for any given period. 3 The board’s decision not to move forward with a lifer parole was treated the same as a board decision to deny parole in an LID case. The lifer decision triggered all the same rights or protections, even though in a lifer case the prisoner also had to have a public hearing before being paroled. R.124, Decls., Exhs. 2-5.
3

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All of these statutory changes (and the formal and informal policy changes that flowed from them) were applied retroactively. In fact, because the 1992 law raised the parole-eligibility date to 15 years for crimes committed after 1992, the entire new parole regime applied only retroactively (to the pre-‘92 plaintiff class) until 2007 – when the first post-1992 lifers became parole-eligible after 15 years.
The governor packed the new board with people from law enforcement. When the new board took over in late 1992, it postponed all regular lifer reviews, citing the new 5-year review schedule. In 1993-94, the new board limited its lifer docket to the so-called “pipeline” paroles – the 39 lifers whom the old board had approved for public hearing in 1992. The new board denied most of those “pipeline” cases. R.124, Gabry Decl., Exh 6.
The new board began processing its own lifer cases in 1995. From 1995 to 2004, it paroled on average just over two lifers a year, even as the pool of eligible lifers reached all-time highs. R.130, Exh. 51. For those years the new board’s parole rate fell below .2 percent.4 The new board boasted that “life means life,” and it admitted that it viewed (and treated) lifers as categorically different from LID prisoners. The new board based its denials almost exclusively on the crime,
4 The defendants claimed 47 lifer paroles from 1995-2004. But they inflated their numbers by counting non-violent “drug lifers” who were not class members. The district court rightly rejected this evidence. R.143, Op., at 38. The correct number is 23 lifer paroles from 1995-04. R.130, Chart, Exh. 51.
4

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without regard to the prisoner’s rehabilitation or the sentencing judge’s intentions. R.143, Op., at 24-31. Half the class has now served 27-50 years. The minimum time served by class members is now 18 years (1992 to 2010).
Michigan judges were dismayed. They expected that well-behaved lifers would be out in 12-18 years, and that young first-offenders might serve 10-12 years. R.128-130, Exhs. 35-38 (judges’ letters supporting parole or objecting to the new board’s “life means life” policy; judicial survey; sentencing transcripts).
The plaintiffs submitted evidence from two former MDOC directors, the head of the MDOC program bureau, every living member of the old parole board from 1962 to 1992, the administrative assistants to both boards, the only person to serve on both boards, a member of the new board, as well as the first chair (and chief architect) of the new board. These were hardly what could be described as “pro prisoner” advocates, yet they were unanimous in their conclusion that but for the statutory and policy changes of the 1990s, many if not most of the pre-1992 lifers would have been released long ago. See R.128, Decls., Exhs. 2-12. As the first new board chair Gary Gabry put it:
We created a system of injustice, one without hope, one based on disparity and arbitrary decisions.... [T]he decisions made on lifers almost ignore the criteria the MDOC has in place, such as risk level and management level.... Nowhere is there...more disparity or arbitrariness than in the parole decision process as it applies to the older [pre-‘92] lifer population. R.128, Gabry, Exh. 22.
5

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Proceedings to Date: The district court granted summary judgment to the plaintiffs on their ex post facto claim and entered a modest remedial order. R.168, Judgment and Order. Motion panels of this Court twice denied requests for stays. The merits panel reversed and remanded, with instructions to grant summary judgment to the defendants.
ARGUMENT 1. The Panel Decision Is at Odds with Sixth Circuit, Sister Circuit,
and U.S. Supreme Court Law In California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), and Garner v. Jones, 529 U.S. 499 ((2000), the U.S. Supreme Court set out the legal standard to be applied in analyzing an ex post facto claim of the sort presented here – where the changes are to the parole regime, rather than to the substantive statutory standard. This Court has read those cases to hold that the test is whether the cumulative changes “present a significant risk of increasing the ... amount of time actually served.” Michael v. Ghee, 498 F.3d 372, 383 (6th Cir. 2007). See also Fletcher v. Reilly, 433 F.3d 867, 869-70 (D.C. Cir. 2006) (“the critical question ... is whether, as a practical matter, the retroactive application creates a significant risk of prolonging an inmate’s incarceration”). A prisoner need not show that his prison time has actually been increased, but only that he suffers the “sufficient risk.” See Dyer v. Bowlen, 465 F.3d 280, 288 (6th Cir. 2006).
6

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 8
A good example of how a court should review such retroactive changes to a parole regime can be found in Mickens-Thomas v. Vaughan, 321 F.3d 374 (3rd Cir. 2003), and 355 F.3d 294 (3rd Cir. 2004). In Mickens-Thomas, Pennsylvania had revamped its parole laws in the wake of the election of a new governor, who ran on an anti-crime platform. There, as here, although the substantive statutory standard for parole did not change, the governor was able to create a new board largely of his own choosing. Parole rates dropped precipitously as a result, the same as in Michigan. See R.13, Parole Rate Chart, Exh. 53.
In Mickens I, the court reviewed a range of evidence comparing the two regimes. It looked at written policies and procedures, statements of the two boards, an internal review charting the changes after the new board took office, changes in parole rates, etc. “We look at all of the Board’s actions and statements of policy to determine how it interpreted the statutory provisions.” Id., at 378. The court concluded that the new board was retroactively applying a harsher standard, in violation of the ex post facto clause. The Third Circuit said:
Although some discretion might still exist within the pre-1996 parameters, a parole decision that fails to address any of the criteria mandated by Board policy, such as institutional recommendations, willingness to undergo counseling and educational achievements, and instead utterly ignores all factors counseling in favor of release, falls outside of the realm of the legitimate exercise of discretion under the pre-1996 policies. Id., at 387. The court found, based on all the evidence, that the board “mistakenly
7

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construed [the amendments] to signify a substantive change in its parole function.”

Id., at 391. The court remanded for the parole board to re-evaluate the case, giv-

ing “genuine consideration and due regard to the factors prescribed by the Board’s

pre-1996 policies.” Id.

When the board again denied parole, the Third Circuit reviewed the board’s

reasons in detail. The court found ongoing ex post facto violations, and granted

the petitioner an unconditional writ. Mickens-Thomas II, at 310.

In Mickens-Thomas, as here, the board argued that it was simply exercising

its discretion. The Third Circuit, however, noted that:

A Parole Board policy, although partly discretionary, is still subject to ex

post facto analysis when there are sufficiently discernable criteria to suggest

to a reviewing body that the new retroactive policies are being applied

against the offender’s interest.

*

*

*

*

*

*

That a Board or legislature may learn from experience does not mean that

those who were sentenced at an earlier juncture may now be more severely

re-sentenced in the light of newly-found wisdom. This is precisely what the

Ex Post Facto clause prohibits.

Id., at 387. In short, “The presence of discretion does not displace the protections

of the ex post facto clause.” Garner, supra, at 253, see also Dyer, supra, at 288.

The Foster-Bey panel, on the other hand, staked out the opposite position.

Slip Op. at 11-13. The panel found, as a matter of law, that because the board al-

ways had discretion, it retained unlimited (and unreviewable) discretion to apply

new, harsher criteria retroactively to the plaintiff class:

8

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 10
The decision whether to grant parole has always been within the Board’s discretion. ... Therefore, from the time plaintiffs committed their offenses, there was always the possibility the Board would exercise its discretion in a way that would result in fewer paroles and longer prison terms.
Id., at 12. The panel effectively found that because the statutory standard itself did
not change, the plaintiffs could never prevail, because the board always retained
discretion. Id., at 12-14. By the same token, the plaintiffs could never show that a
retroactive change was attributable to specific amendments, because the changes
might be attributable only to the manner in which the board exercised its discretion.5 Id.,at 12-16.
In sum, instead of evaluating the proofs – as the Third Circuit did in Mick-
ens-Thomas, and as this Court did in Michael and Dyer, and as the district court
did below – the panel held as a matter of law that the ex post facto clause cannot
be violated absent a change in the substantive statutory standard. This is an outlier position that by itself justifies en banc review.6
5 This argument proves too much, as it could be made with equal force even in cases where the substantive statutory standard changes. According to the panel, one can simply never know whether the change in the board’s practice is attributable to the amendment, or to the board’s “legitimate exercise of its discretion.” Slip Op. at 13-21. 6 The panel relies on a quote from Justice Scalia in Garner to the effect that “an inmate has no cause to complain that the Board in place at the time of his offense has been replaced by a new, tough-on-crime board....” Slip Op. at 15. But Justice Scalia’s comment comes from a concurrence that no other member of the Court joined. See Garner, 529 U.S. at 249 et seq.
9

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The panel tried to support its position by arguing that a parole board will inevitably change over time, producing gradual fluctuations in the relative harshness or leniency of its decisions. Slip Op. at 15. This case itself, however, is proof that such long-term organic changes present little risk, and are categorically different from what occurred here. From 1942 to 1992, the membership of the Michigan parole board changed many times, without ever applying harsh new criteria retroactively, to a degree that would implicate the ex post facto clause.7
But what happened in 1992 was not a long-term or organic change. The old board was fired en masse and supplanted by a new board for the specific political purpose of retroactively increasing the time that Michigan prisoners would serve. That is the very essence of an ex post facto violation. See e.g., Lynce v. Mathis, 519 U.S. 433 (1997), and Weaver v Graham, 450 U.S. 24 (1981). Indeed, at bottom the district court found that the board stopped exercising its discretion, and made a categorical decision not to parole lifers as a class. R.143, Op., at 20, 31.
The panel’s decision is equally an outlier as to specific statutory changes. In Morales and Garner, the U.S. Supreme Court held that the reduced frequency
7 For 50 years sitting board members trained and acculturated new members in such a way that the center always held. Even from 1985 to 1992, when the old board’s lifer parole rates fell, the fall was not due to a shift in board philosophy, applied retroactively, but to a severe lack of resources in the face of an exploding prison population. See R.124, Decls., Exhs. 2-5, and R.143, Opinion, at 39-42.
10

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of parole review is not necessarily an ex post facto violation: the question is whether the less frequent review creates a “sufficient risk of increased punishment.” Both cases held that because the challenged state schemes required individualized assessment before the less frequent review was invoked, and because both states permitted the parole board to see worthy candidates on an accelerated schedule, the prisoners had not proven the requisite risk. (Garner remanded for discovery.)
In Shabazz v. Gabry, 123 F.3d 909 (6th Cir. 1997), this Court held the same thing. Shabazz was a facial challenge limited to the 1992 amendment that reduced lifer parole review to a 10+5+5 schedule. This Court’s denial of relief hinged on two facts, namely (1) that “no reliable statistical analysis was available ... because the statute had been in effect for too short a period,” and (2) that “other viable opportunities for parole” existed apart from the 5-year reviews. Id., at 914.
Here, however, the plaintiffs proved, and the district court found, that in practice the 5-year review was automatic. R.143, Op., at 31-34. The MDOC director in the 1990s could not recall a single case of accelerated review other than for terminal illness, and the sitting board chair seemed unaware that shorter than 5-year intervals were even possible. See R.130, Exh. 39, at 74-77; Exh. 42, at 41; Exh. 43, at 67, 84. Whether the prisoner had served 15 or 40 years, and whether the vote in executive session (to deny parole) was 10-0 or 6-4, all lifer reviews were set out five years, by computer. The new board created an irrebuttable pre-
11

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 13
sumption that if a person was not parolable today, he or she would not be parol-
able for five more years. Contrary to Morales, Garner, and Shabazz, the panel
found no ex post facto violation, because any untoward effect might equally be
due to “the Board’s stricter exercise of its discretion.” Slip Op. at 16.8
2. The Panel Made the Wrong Comparison for Ex Post Facto Purposes
In evaluating the parole release rates,9 the panel erred in using 1985-92 as
the linchpin period for comparison. The ex post facto clause requires a court to
compare the parole regime in effect when the prisoner committed the crime with
the regime in effect when the prisoner comes up for parole. Here, roughly 60 per-
8 On similar facts, the South Carolina Supreme Court found a per se ex post facto violation. Distingishing Garner, the South Carolina court said:
... unlike the Georgia Parole Board’s rules, the South Carolina statute automatically increases violent offenders’ parole consideration from every year to “every two years. ... South Carolina’s system does indeed create “a significant risk of prolonging respondent’s incarceration” by one year without any chance for review....
Jernigan v. State, 340 S.C. 256, 264 n.5 (S.C. 2000). 9 The panel suggests that it is an open question whether, in comparing parole regimes, one should look at the number of prisoners paroled per year as opposed to parole rates. See Slip. Op., at 17. This cannot be correct. As the district court understood, if the old board paroled 10 people out of 100 eligible lifers in a given year, its parole rate was 10 percent. But if the new board paroled 10 people in a given year (not that it ever did) out of 1,000 eligible lifers, its parole rate would be just one percent. To inflate their performance, the defendants argued in both courts that only the numerator – the raw number paroled – matters. This is statistical hogwash, which the district court correctly rejected. R.143, Opinion, at 37.
12

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cent of the plaintiff class committed their crimes before 1985, at a time when the old board’s historical 5-year-averaged parole rate had never fallen below five percent. Thus, even if the panel were correct (that there was no significant difference between the last years of the old board and the first decade of the new board), the panel’s holding could not be applied to the bulk of the class who committed their crimes before 1985. The undisputed evidence is that the pre-1985 class members were at least 25 times more likely to be paroled under the old board (when they committed their crimes) than under the new board from 1995-2004.10
Looking at the old board’s decisions from 1985-92, the panel concluded that the parole rates between the two boards were not significantly different. The numbers may all be small, but if people who committed their crimes from 1985-89 had a five-year-averaged chance for parole of .6 percent, and ten years later (under the new board) from 1995-99 they had a chance of only .2 percent, or from 2000-04 a chance of only .15 percent, see Slip Op. at 19, their collective chances for parole dropped by a factor of three and four, respectively – hardly an insignificant drop.
10 Lifers who were eligible for parole from 1985-92 may have had a different ex post facto claim that they could have brought against the old board: namely that its policy of focusing its funding and resources on non-lifers, thereby postponing lifer interviews and delaying public hearings even in the lifer cases it approved, created a significant risk of increased punishment. The fact that such a claim might have been possible then, however, does not bar the current class from bringing its own ex post facto claim against the new board, based on its “life means life” policy and the 1992 and 1999 statutory changes.
13

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Moreover, as to the period from 1990-92, the panel gave no weight to the fact that the outgoing board in 1992 approved 47 class members for public hearing. Under the old board, such approval was tantamount to granting parole, as the old board rarely denied a lifer parole after a public hearing. R.124, Exh. 8, at 2. Although eight of the “pipeline” approvals were blocked by state-court judicial vetoes, the 39 remaining cases still amounted to more than five percent of the parole-eligible lifer population. Thus, in 1992, the old board was on course to match its long-term historical lifer parole rate of five percent.
Instead of considering this evidence, the panel ignored the old board’s approvals for public hearing. Slip Op. at 19, n.6. But these cases are ideal “comparables” that highlight the radical difference in the two boards’ approaches to lifer parole. The new board not only rejected most of the old board’s “pipeline” people in 1993-94 – blocking their public hearings or voting against their paroles – but from 1995 to 2004 (and beyond) the new board repeatedly denied public hearings to these very same candidates, and routinely set the cases five years out before the next possible review.
Many of these people were still in prison when this case was filed in 2005. Many remain in prison today, 18-25 years after the old board first approved them for public hearing. Garner and Dyer and Mickens-Thomas require this Court to look at all the evidence. The 1992 public hearing cases show that under the new
14

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board, “increased punishment” was not just a risk, but a certainty.

Finally, as to the numbers, if from 1995-04 the new board was not applying

a harsher standard, then the change in lifer paroles produced by this litigation is

hard to explain. The lower court entered an injunction requiring the new board to

apply (to the extent possible) “the parole laws, policies, procedures, and standards

that were applied by the old board in the decades before 1992.” R.168, Order, at

4. Since 2008, the board has approved at least 90 members of the class for public

hearings, and to date more than 40 class members have been paroled. The district

court enjoined the new board’s “life means life” policy, with immediate results.

To undo the injunction will doom the plaintiff class to mandatory life in prison.

Conclusion

Because the panel decision is at odds with Sixth Circuit, sister circuit, and

U.S. Supreme Court case law, and because the panel made the wrong comparison

for ex post facto purposes, the plaintiffs request rehearing and rehearing en banc.

Respectfully submitted,

Dated: March 2, 2010

s/ Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu - P27594

15

Case: 08-1371 Document: 00619402907 Filed: 03/02/2010 Page: 17

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Case Nos. 08-1371, 08-1372, 08-1626 ____________________________________________

KENNETH FOSTER, et al.,

Plaintiffs-Appellees, v.

SHAREE BOOKER, in her official capacity as a member of the Michigan Parole Board, et al.,

Defendants-Appellants. _____________________________________________

Proof of Service

The plaintiffs’ motion for rehearing and rehearing en banc was filed on

March 2, 2010, using the Court’s ECF system, which will send e-mail notice to all

attorneys of record.

Dated: March 2, 2010

s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for the Plaintiffs pdr@umich.edu - P27594

16

 
 Case 2:05-cv-71318-MOB-VMM Document 109 Filed 02/06/2006 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY LYNCH-BEY, Plaintiff,
v. JOHN RUBITSCHUN ET AL.,
Defendant(s).

Case No. 05-71318 (Previously consolidated with 05-72378) Honorable Nancy G. Edmunds
/

ORDER
1. GRANTING PLAINTIFF’S MOTION FOR SEVERANCE OF CLAIMS [64]; 2. GRANTING IN PART PLAINTIFF’ S MOTION TO STRIKE DEFENDANT’S
RESPONSES AND/OR FOR A MORE DEFINITE STATEMENT [99]; 3. VACATING ORDER OF CONSOLIDATION WITH CASE NO. 05-71318 [7]
AND REOPENING CASE NO. 05-72378; 4. DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION [2]; 5. DENYING APPLICANTS’ MOTION TO INTERVENE AS PLAINTIFFS [5]; 6. DENYING APPLICANTS’ MOTION TO INTERVENE AS PLAINTIFFS [96]; 7. DENYING APPLICANTS’ MOTION TO INTERVENE AS PLAINTIFFS [104]; 8. DISMISSING PROPOSED CLASS PLAINTIFFS.
On April 5, 2005, a class action complaint was filed in this Court under 29 U.S.C. §
1983, alleging violation of the Ex Post Fa cto Clause and the Due Proces s Clause of the
United States Cons titution. The plaintiffs are parolable life inmates in the Michigan
Department of Corrections who were convicted before October 1, 1992, for whom parole
has been rejected or deferred; the defendants are members of the Michigan Parole Board
and the Director of the Michi gan Department of Corrections. That case is captioned
Kenneth Foster-Bey et al. v. Rubitschun eat l., Case No. 05-71318 (“the Foster-Bey Case”).

Case 2:05-cv-71318-MOB-VMM Document 109 Filed 02/06/2006 Page 2 of 4
On June 15, 2005, Plaintiff Anthony Lynch-Bey filed this action 1 (“the Lynch-Bey Case”), which makes substantially similarallegations and names the same Defendants as the Foster-Bey Case. Plaintiff sought in his Co mplaint certification of a class of similarly situated prisoners.
On July 21, 2005, this Court issued an Orderconsolidating the Foster-Bey Case with the Lynch-Bey Case. All briefing has since been in the Foster-Bey Case, a consolidated class action, Case No. 05-71318. There hasbeen some progress in the consolidated case, including the Court’s granting of the plaintfifs’ Motion for Class Certification and the setting of discovery and motion schedules.
It now appears, however, that Plaintiff Anthony Lynch-Bey wishes to pursue different theories and strategies against Defendants, and he urges the Court to separate his case from the Foster-Bey Case. He has moved for a severance of claims, as well as to strike Defendants’ responses and/or for a more definite statement. The Court GRANTS these Motions inasmuch as they seek to separatethe cases and compel Defendants to respond to Plaintiff Anthony Lynch-Bey independent of the Foster-Bey Case. Accordingly, the Court hereby VACATES its July 21 Order and REOPENS the Lynch-Bey Case, No. 05-72378. The Foster-Bey Case and the Lynch-Bey Case shall proceed independent of one-another.
Further, the Court hereby rules that while Plaintiff Anthony Lynch-Bey may pursue his claims pro se, he may not represent a class of individuals. “The right to litigate for oneself . . . does not create a coordinate right to litigate for others. The reasoning behind this rule
1The first document on the docket is entitled, “PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION,” and, “MOT ION FOR CERTIFICATION O F CLASS ACTION.” (Case No. 05-72378, Doc. 1.) F or purposes of this pro se lawsuit, the Court construes this document as a complaint.
2

Case 2:05-cv-71318-MOB-VMM Document 109 Filed 02/06/2006 Page 3 of 4
is two-fold: it protects the rights of t hose before the court and jealously guards the judiciary’s authority to govern those who practice in its courtrooms.” Myers v. Loudon County Pub. Schs, 418 F.3d 395, 400 (4th Cir. 2005) (citations omitted). Thus, the Court hereby DENIES Plaintiff AnthonyLynch-Bey’s Motion for Class Certification, as well as the three separate Motions to I ntervene as Plaintiffs filed in connection with the Lynch-Bey Case. The Court DISMISSES all Plaintiffs from the Lynch-Bey Case, No. 05-72378, with the exception of Mr. Lynch-Bey himself.
The Court notes that al l parties who have moved to i ntervene as plaintiffs in the Lynch-Bey Case but have been excluded becauseof the Court’s above ruling may choose to be represented by class counselin the Foster-Bey Case, pursuant to other requirements for class membership.2

Dated: February 6, 2006

s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge

2Class counsel for the Foster-Bey Case, No. 05-71318, has posted a Notice of Class Certification to potential plaintiffs. The Notice is addressed to
All parolable lifers in the custody of the Michigan Department of Corrections who were convicted before October 1, 1992, and whos e parole the “new” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred . . . .
Potential litigants who fall into the above description should contact the Michigan Clinical Law Program, 363 Legal Research Building, 801 Monroe St., Ann Arbor, MI 48109-1215.
3

Case 2:05-cv-71318-MOB-VMM Document 109 Filed 02/06/2006 Page 4 of 4 I hereby certify that a copy of the foregoing document was served upon counsel of record on February 6, 2006, by electronic and/or ordinary mail.
s/Carol A. Hemeyer Case Manager
4

 
 Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
2005 WL 2010181 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan, Southern Division.
Kenneth FOSTER-BEY, et al., Plaintiff(s), v.
John S. RUBITSCHUN, et al., Defendant(s). No. 05-71318. | Aug. 18, 2005.
Attorneys and Law Firms
Paul D. Reingold, University of Michigan Clinical Law Program, Ann Arbor, MI, for Plaintiffs.
Frank J. Monticello, Kevin R. Himebaugh, Michigan Department of Attorney General, Lansing, MI, for Defendants.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [9]
EDMUNDS, J.
*1 This § 1983 case presents Constitutional challenges to Michigan’s parole policies. Defendants’ motion to dismiss, pursuant to FED. R. CIV. P. 12(b)(6), is presently before the Court. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.
I. Background All seven plaintiffs1 were convicted in Michigan state courts before October 1, 1992 and sentenced to life imprisonment with the possibility of parole. (Compl.¶ 1.) Plaintiffs are still in the custody of the Michigan Department of Corrections (“MDOC”) at various facilities. (Id.¶¶ 1, 12-18.)
Plaintiffs have named the members (including the chair) of the Michigan Parole Board (“the Board”)2 as well as the director of MDOC3 as defendants in this action. (Id.¶¶ 27-30.) Defendants have been named “individually and in their official capacities.” (Id. at 1.)
In the complaint, Plaintiffs allege that the amendments to Michigan’s parole laws and the Board’s policies (1) constitute ex post facto laws and thus violate U.S. CONST. art. I, § 10, cl. 1 and (2) deprive them of due process in violation of U.S. CONST. amend. XIV, § 1. (Compl.¶¶ 114-17.) Specifically, they contend the following changes, when viewed collectively, create a Constitutional violation: their parole was reviewed every other year, but now only every five years (id.¶¶ 94-95); they are no longer entitled to an in-person hearing (id.¶¶ 96-97); written reasons for denial are not required, but were before (id.¶¶ 98-99); “a statement of no interest or a pass-over” is no longer considered a formal Board decision subject to judicial review (id.¶¶ 100-03); and, the Board has changed from an independent entity to one under the direct authority of Michigan’s executive department (id.¶¶ 104-05). Defendants filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6).
II. Standard of Review “Dismissal pursuant to a Rule 12(b)(6) motion is proper only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 745 (6th Cir.2004)(quotation and citation omitted). The factual allegations in the complaint must be looked at as if
1

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
they were true. Id. However, the court need not adopt the plaintiff’s legal conclusions or unwarranted factual inferences. Id.
III. Analysis
A. Background Cases The issues presented by Plaintiffs’ complaint are not new; the Court recognizes that it does not write on a blank slate. It is therefore helpful to turn first to the cases which address the relationship at issue here-what changes in State’s parole procedures violate the Ex Post Facto Clause.
In Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 501, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Supreme Court considered a California amendment which changed the frequency of parole suitability hearings. Specifically, at the time of the plaintiff’s conviction, the parole board was required to hold hearings on an annual basis. Id. at 503 (citation omitted). The amendment permitted (but did not require) hearings to be postponed for three years if the prisoner was convicted of more than one offense which involved the taking of a life. Id. (citation omitted).
*2 The Morales Court rejected the plaintiff’s proposed approach that would require that [courts] invalidate any of a number of minor (and perhaps inevitable) mechanical changes that might produce some remote risk of impact on a prisoner’s expected term of confinement. Under [this] approach, the judiciary would be charged under the Ex Post Facto Clause with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures....
Id. at 508. Instead, the Court held that the Ex Post Facto Clause was violated only if the retroactive change “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509.
The California amendment, however, “create[d] only the most speculative and attenuated possibility of ... increasing the measure of punishment....” Id. In reaching this conclusion, the Court noted that, for the class of prisoners affected by the amendment, “the likelihood of release on parole is quite remote.” Id. at 510. Moreover, “the [parole board] must conduct a full hearing and review of all relevant facts” at the prisoner’s initial parole hearing-which occurred at the same time before and after the amendment-and then “state the bases for its finding.” Id. at 511 (quotation and citation omitted). In addition, the Court cited to the fact that the parole board was given discretion to tailor the frequency of (and could even expedite) hearings. Id. at 511-13.
Before the Supreme Court issued its decision in Morales, a class action suit was filed in this district challenging Michigan’s 1992 statutory amendments to MICH. COMP. LAWS § 791.234(6) and § 791.244(1). See Shabazz v. Gabry, Case No. 93-73316. The class included prisoners, convicted before 1992, who were “serving long, indeterminate sentences, parolable life sentences, and mandatory life sentences.” Shabazz v. Gabry (“Shabazz I”), 900 F.Supp. 118, 121 (E.D.Mich.1995). The court then split the plaintiffs into subclasses based on the year in which they were convicted: (1) between 1982 and 1992, (2) between 1977 and 1982, and (3) before 1977.4 Id.
The statute in place at the time of subclass 1’s convictions provided for an initial “interview after four years and then every two years thereafter....” Id. For subclass 2, the frequency was governed by a Michigan administrative regulation. Id. at 121-22. It required “members of subclass 2 [to be] interviewed after seven years, again at three years and then every year thereafter....” Id. at 122.
When the members of [subclass 3] were convicted and sentenced, there was no applicable statute or codified administrative regulation governing the frequency of parole board review. Instead, the frequency of parole review for these inmates was governed by the internal policies and procedures of the parole board itself and by policy directives established by the MDOC. Pursuant to these procedures and directives, the practice of the parole board was to interview [members of the subclass] after seven years of incarceration, then every three years thereafter....
*3 Id. In contrast, the statutes at issue changed the process for all classes so that the first parole interview was given after ten years and then every five years thereafter. Id. at 122.
2

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
After Morales was decided, the district court, addressing cross motions for summary judgment, held that the amendments constituted ex post facto laws for subclasses 1 and 2, but not for subclass 3. Id. at 120-21. The court found “the relationship between regularly scheduled parole hearings and an inmate’s opportunity for early release” to be “quite significant.” Id. at 127. Although it noted that “meaningful statistics about [the amendment’s] effect on early release are unavailable[,]” the court relied on anecdotal evidence-including the opinion testimony of a former Board member-to support its holding that there was a sufficient risk of longer sentences for some members of subclasses 1 and 2. Id. at 127-28, 130.5 The court found, however, “that the internal procedures and policy directives of the MDOC and the parole board in effect when members of subclass 3 committed their crimes are not ‘laws’ under Article I, § 10.” Id.
On appeal, the Sixth Circuit reversed in part, finding that there was not a sufficient risk of increased sentences for any subclass. Shabazz v. Gabry (“Shabazz II”), 123 F.3d 909, 910 (6th Cir.1997), cert. denied, 522 U.S. 1120, 118 S.Ct. 1061, 140 L.Ed.2d 122 (1998). Specifically, [w]here amendments to state parole laws postpone initial mandatory parole hearings and decrease the frequency of subsequent mandatory hearings, but nevertheless provide other viable opportunities for parole, such amendments do not produce a “sufficient risk of increasing the measure of punishment attached to the covered crimes.” The 1992 amendments do not change the standard for parole, but allow prisoners ample opportunity to petition the Parole Board for interviews. Further, the 1992 amendments allow the Parole Board to grant parole interviews of its own volition, and to grant prisoners parole without an interview.
Id. at 914. The court noted that the district court’s reliance on “anecdotal observations and personal speculations” were not sufficient to show a sufficient risk. Id. at 915. The district court’s holding that internal memoranda and policy directives were not “laws” for purpose of the Ex Post Facto Clause was affirmed. Id. at 915-16.
In Gamer v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), the Supreme Court took up this issue again, this time examining Georgia’s parole system. At the time of the plaintiff’s conviction, the Georgia Parole Board Rules required parole hearings to occur every three years. Id. at 247 (citation omitted). A Georgia statute provided the board with discretion to determine the frequency of these hearings however. Id. (citation omitted). So, it later amended its rules to provide for reconsideration “at least every eight years.” Id. (citation omitted).6 However, the rules permitted the board to hold hearings more frequently and to give any inmate an expedited hearing based on new information or a change in circumstances. Id. at 248.
*4 The Eleventh Circuit Court of Appeals found that the rule was an ex post facto law. See id. at 248-49. The Supreme Court reversed, holding that “[t]he requisite risk is not inherent in the framework of [the amended rule.]” Id. at 251. It then noted that,
[w]hen the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Id. at 255. Based on the information in the record, the Court could not conclude whether “the change in Georgia law lengthened respondent’s time of actual imprisonment” and therefore remanded for further consideration. Id. at 256-57.
B. Defendants’ Arguments for Dismissal It is against this backdrop that Defendants filed their motion to dismiss. They argue that (i) Plaintiffs lack standing; (ii) issue and/or claim preclusion bar the action; (iii) Plaintiffs were not deprived of a liberty interest; (iv) the changes in Michigan’s parole policies do not constitute ex post facto laws; (v) the claims are barred by the statue of limitations; and (vi) Defendants are protected by qualified immunity.
1. Standing
[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete
3

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
Defendants first argue that there is no “injury in fact” because Plaintiffs do not possess a Constitutional right to parole. As Defendants recognize, however, part of the injury claimed by Plaintiffs is the loss of the procedural safeguards that were in place at the time of their conviction. The dilution of procedures may create a Constitutional injury. Thus, Defendants’ claim must be rejected.
Defendants argument regarding causation and redressability are the same: the Board retains complete discretion whether to grant or deny parole; therefore, different processes will not necessarily change the length of an inmate’s sentence. Again, this logic does not take into account that a dilution of procedural safeguards, in and of itself, is an injury. If the Court were to rule that these changes violated the Constitution, the old procedures (or different permissible procedures) must be implemented. This would redress Plaintiffs’ injury.
The Court nonetheless recognizes that these standing issues parallel the analysis undertaken to determine whether a change in parole hearings constitutes an ex post facto law. See generally Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588. Standing is a threshold determination however. Unlike proving the merits of the case-that, in these parole cases, may require a statistical showing that there is a sufficient risk of an increased penalty-a plaintiff cannot be required to provide evidence of his injury at this initial stage; it is sufficient for him to state his injury so that the court may determine whether, assuming those facts do exist, it is cognizable. In this case, based on the allegations in Plaintiffs’ complaint, there is an injury that was caused by Defendants and can be redressed by the Court.7
2. Claim and Issue Preclusion
*5 The doctrines of issue and claim preclusion prohibit a plaintiff from bringing a suit that was actually litigated or, for the latter, could have been resolved in a previous suit.8 Defendants argue that Plaintiffs cannot bring the present action because Shabazz put the issues to rest.9 Some of the procedural changes cited by Plaintiffs, however, occurred after the Shabazz case was filed (and decided). Compare MICH. COMP. LAWS § 791.234(6)(a) (1998)(requiring interviews “at the conclusion of 10 calendar years of the sentence and every 5 years thereafter”) with MICH. COMP. LAWS § 791.234(6)(a) (2005 Supp.)(requiring interviews “at the conclusion of 10 calendar years of the prisoner’s sentence and thereafter as determined by the parole board”). Thus, in Shabazz, it was not possible for plaintiffs to bring the claims or the court to resolve the issues presented in this case.10
Defendants further argue that the changes that occurred after Shabazz are not relevant for ex post facto purposes. Specifically, they point to the rule that internal policies do not generally constitute “laws.” It has been held
that the operative factor in assessing whether a directive constitutes a “law” for ex post facto purposes is the discretion that the Parole Commission retains to modify that directive or to ignore it altogether as the circumstances may require ..... Ex post facto concerns do not obtain where a regulation serves not as a binding constraint on the administrative decisionmaking process, but merely as a guide to the proper exercise of discretion.
Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1988) (citations omitted); see also Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977)(Parole Commission guidelines do not “have the characteristics of law. They are not fixed and rigid, but are flexible. The Commission remains free to make parole decisions outside of these guidelines.”). In Shabazz, the Sixth Circuit also held that “the policies behind the Ex Post Facto Clause” show why policies should not be construed as laws. Shabazz II, 123 F.3d at 916. Specifically, the Ex Post Facto Clause was created
to protect citizens from retroactive increases in punishment. Changes in the administration and enforcement of statutes have little impact on these expectations.... [T]he internal memoranda and policy directives ... are not published ... or presented to the public for comment. Accordingly, the ... policies and directives did not likely influence public expectations as to parole or create a reliance interest in the
4

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
public....
Id. (citation omitted).
As noted above, however, some changes were legislative.11 In addition, in Gamer, the Supreme Court noted the relevance of internal policies:
The Court of Appeals erred in not considering the Board’s internal policy statement. At a minimum, policy statements, along with the Board’s actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether, as a matter of fact, the amendment to [the rule] created a significant risk of increased punishment. It is often the case that an agency’s policies and practices will indicate the manner in which it is exercising its discretion. The Court of Appeals was incorrect to say the Board’s policies were of no relevance in this case. Absent a demonstration to the contrary, we presume the Board follows its statutory commands and internal policies in fulfilling its obligations.... The policy statement here, [in contrast to the one in Morales ], is a formal, published statement as to how the Board intends to enforce its Rule. It follows a fortiori ... that the Court of Appeals should not have disregarded the policy. *6 Garner, 529 U.S. at 256-57 (citations omitted).12
Some of the changes that Plaintiffs cite in their complaint were the subject of previous cases-courts have agreed with the Board’s interpretation of the parole statute that, for instance, a “no interest” decision was not a final decision. See, e.g., In re Parole Johnson, 235 Mich.App. 21, 596 N.W.2d 202 (Mich.Ct.App.1999). At this time, however, it is not clear how the Board implemented this change-e.g., through a formal, published statement. Pursuant to clear language in Gamer, this is relevant to the Court’s examination. Nonetheless, Defendants’ argument must be rejected because some of the changes occurred by statute and thus, constitute “laws” under an Ex Post Facto Clause analysis.
3. Interest that Triggers Due Process Protection
The Fourteenth Amendment prohibits states from depriving a person of “life, liberty, or property” without due process of law. U.S. CONST. amend. XIV, § 1. The courts have found that this clause gives rise to two types of claims-procedural and substantive. Plaintiffs’ claim involves the former. That is, they contend that the procedures followed before making a decision regarding parole do not satisfy the minimum level required by the Constitution.
Th[e Sixth Circuit] applies a two-part analysis to procedural due process claims. First, the court must determine whether the interest at stake is a protected liberty or property right under the Fourteenth Amendment. Only after identifying such a right do [courts] continue to consider whether the deprivation of that interest contravened notions of due process.
Midkiff v. Adams County Reg’l Water Dist., 409 F.3d 758, 762-63 (6th Cir.2005)(quotation and citation omitted).
The right to parole (i.e., the interest at issue here) cannot be classified as any conceivable type of property. Thus, to implicate procedural due process protection, it must be a liberty interest. In Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir.1994)(en banc), however, the Sixth Circuit ruled that, in Michigan, “the parole discretion is broad....” Therefore, “ ‘the State has not created a constitutionally protected liberty interest’ by enacting procedural rules.” Id. at 1165 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)). Although this holding seems to end the inquiry, Plaintiffs have come up with a novel approach in an attempt to keep the claim alive.
Plaintiffs first assert that the Due Process Clause entitles them to be sentenced based on accurate information. Relying on this rule, they contend that the Constitution was violated because the sentencing judge assumed that the parole procedures in place at the time of the conviction would continue to be used. Plaintiffs’ premise is correct-a judge’s reliance on a factual error in sentencing does violate due process. See Collins v. Buchkoe, 493 F.3d 343, 346 (6th Cir.1974). However, their conclusion is incorrect-in this case, there was not an error that creates a due process violation. If the sentencing judge assumed that the parole procedures would not change, this was improper. The procedures are consistently altered. Moreover, even if the procedures change, there is no assurance that a person, after his conviction and sentence, will ever satisfy the substantive requirements necessary for parole. Thus, Plaintiffs’ argument must be rejected. To hold otherwise would permit a plaintiff to bring a due process claim that would directly conflict with the Sixth Circuit’s holding that, in Michigan, a liberty
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Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)
interest does not exist in parole. Defendants’ motion to dismiss this count is therefore granted.
4. Ex Post Facto Clause Violation
*7 Defendants argue that the amendments to Michigan’s parole hearing procedures do not violate the Ex Post Facto Clause. There are two ways that amendments to these procedures can create a violation: a significant risk may be shown either (1) “by [rule’s] own terms”-i.e., on its face or (2) “the rule’s practical implementation by the agency charged with exercising discretion....” Garner v. Jones, 529 U.S. at 255. The latter requires the plaintiff to draw on outside evidence. See, e.g., id. at 256 (requiring the court of appeals to determine “whether, as a matter of fact, the amendment to [the rule] created a significant risk of increased punishment”)(emphasis added). The motion to dismiss presently before the court, however, does not permit the consideration of this extraneous information. Thus, the issue is not ripe for consideration.
5. Statute of Limitations
Defendants claim that the changes occurred more than three years ago and are thus barred by the statute of limitations. Plaintiffs respond that the harm is ongoing and, accordingly, they are permitted to bring an action for injunctive relief (but not damages).
“Th[e Sixth] Circuit employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to § 1983 actions.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003) (citation omitted). Specifically, a continuing violation may sometimes exist in a hostile work environment claim. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). It does not normally occur in other actions because they almost always involve discrete acts. This is, however, an atypical case that parallels the first type of continuing violations in employment discrimination. This type occurs
where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues presently to impose disparate work assignments or pay rates.... The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay. It is irrelevant that the employer has committed the same illegal act at other times prior to the beginning of the relevant limitations period.
Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir.1991)(quotation and citations omitted)(emphasis in original). Here, assuming the procedures are not Constitutional, a violation of the Ex Post Facto Clause would occur every time they are used to deny Plaintiffs parole. This is the type of claim that gives rise to a continuing violation. Thus, the statute of limitations does not barr the action.13
6. Qualified Immunity
Defendants argue that they are protected by the doctrine of qualified immunity. Plaintiffs do not seek damages however; they seek an injunction-i.e., a form of relief that does not implicate the functions of the qualified immunity doctrine. Thus, Defendants qualified immunity claim must be rejected.
IV. Conclusion *8 For the reasons set forth above, the Court hereby orders that Defendants’ motion to dismiss Plaintiffs’ Due Process Claim is GRANTED IN PART and DENIED IN PART.
SO ORDERED. 6

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)

HEMEYER, J.
I hereby certify that a copy of the foregoing document was served upon counsel of record on August 18, 2005, by electronic and/or ordinary mail.

Footnotes

1

The plaintiffs are Kenneth Foster-Bey, John Alexander, Waymon Kincaid, William Sleeper, Robert Weisenauer, Eric McCullum,

and Gerald Lee Hessell. (Compl.¶¶ 12-18.) The complaint is styled as a class-action to represent “[a]ll parolable lifers in the

custody of the Michigan Department of Corrections who were convicted before October 1, 1992, and whose parole ... has [been]

denied....” (Id.¶ 19.) Plaintiffs filed a motion for class certification on April 5, 2005. This motion has been held in abeyance until

Defendants’ motion to dismiss is resolved. (July 6, 2005 Order.)

2

John S. Rubitschun is the chairman of the parole board. (Compl.¶ 27.) James Atterberry, Miguel Berrios, Charles Braddock,

Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, and Artina Hartman are the other

members of the board. (Id.¶ 28.)

3

Patricia L. Caruso is the director of MDOC. (Compl.¶ 30.)

4

The third subclass also included prisoners who received mandatory life sentences between 1977 and 1982. Shabazz I, 900 F.Supp.

at 121.

5

The district court distinguished the statute in Morales because the Michigan amendments (1) covered “a large class of prisoners”

and thus the likelihood of parole was not remote; (2) did not require “a case specific inquiry [to be] conducted before [the inmates]

were consigned to the less frequent hearing schedule[;]” and (3) delayed the initial and the subsequent hearings. Shabazz I, 900

F.Supp. at 126.

6

The board changed back to the three year time period after the Eleventh Circuit, in an earlier case, found that the change

constituted an ex post facto law. See Atkins v. Snow, 922 F.2d 1558, cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1079

(1991); Garner, 529 U .S. at 247. After the Morales decision, however, the board returned to the eight year interval. Id. at 248.

7

Defendants argument may be interpreted as follows: a new policy or law that only changes the procedures, when the Board retains

complete discretion over the ultimate decision, cannot constitute an ex post facto law. This view was adopted by Justice Scalia in

his concurrence in Garner:

A statutory parole system that reduces a prisoner’s sentence by fixed amounts of time for good behavior during incarceration can

realistically be viewed as an entitlement-a reduction of the prescribed penalty-rather than a discretionary grant of leniency. But that

is immeasurably far removed from the present case. In Georgia parole ... is-and was at the time respondent committed his offense-a

matter of grace. It may be denied for any reason (except, of course, an unlawful one such as race), or for no reason. And where, as

here, the length of the reconsideration period is entrusted to the discretion of the same body that has discretion over the ultimate

parole determination, any risk engendered by changes to the length of that period is merely part of the uncertainty which was

inherent in the discretionary parole system....

It makes no more sense to freeze in time the Board’s discretion as to procedures than it does to freeze in time the Board’s

discretion as to substance. Just as the Ex Post Facto Clause gives respondent no cause to complain that the Board in place at the

time of his offense has been replaced by a new, tough-on-crime Board that is much more parsimonious with parole, it gives him no

cause to complain that it has been replaced by a new, big-on-efficiency Board that cuts back on reconsiderations without cause....

[A] policy statement or regulation, in the context of a system conferring complete discretion as to substance and as to the timing of

hearings upon the Board, simply creates no reasonable expectation of entitlement.... This is not an expectation of the sort that can

give rise to ex post facto concerns.

Garner, 529 U.S. at 258-89 (Scalia, J., concurring)(emphasis in original). This view was not, however, adopted by the five Justice

majority. See id. at 253 (“The presence of discretion does not displace the protections of the Ex Post Facto Clause.”). Thus, the

rule does not control this Court’s decision.

8

See Hammer v. Immigration & Naturalization Serv., 195 F.3d 836, 840 (6th Cir.1999)(Issue preclusion “applies only when (1) the

issue in the subsequent litigation is identical to that resolved in the earlier litigation, (2) the issue was actually litigated and decided

in the prior action, (3) the resolution of the issue was necessary and essential to a judgment on the merits in the prior litigation, (4)

the party to be estopped was a party to the prior litigation (or in privity with such a party), and (5) the party to be estopped had a

full and fair opportunity to litigate the issue.”) (citations omitted)(emphasis added); Executive Arts Studio, Inc. v. City of Grand

Rapids, 391 F.3d 783, 795 (6th Cir.2004)(“[C]laim preclusion bars a second, subsequent action when (1) the prior action was

decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could

7

Foster-Bey v. Rubitschun, Not Reported in F.Supp.2d (2005)

have been, resolved in the first.” )(quotation and citation omitted) (emphasis added).

9

Defendants also contend that Michigan v. Hill, ---N.W.2d ---, 2005 WL 1630066 (Mich.Ct.App.2005), forecloses consideration of

the issues before this Court. In Hill, the defendant argued that Michigan’s “life means life” parole board policy violated the Ex Post

Facto Clause. For Plaintiffs to be precluded from making a similar argument, they must have been a party in Hill. See note 9

supra. Presently, however, the defendant in Hill is not a plaintiff in this action. Thus, Plaintiffs are not precluded from making the

argument that the changes in Michigan’s parole policies violated their Constitutional rights.

10

Defendants’ argue that the Court cannot consider the frequency change in inmates’ parole hearings as set forth in the 1992

amendments because that was considered in Shabazz. This claim is incorrect. It ignores the fact that the Court must examine the

cumulative changes in the parole procedures since an inmate’s conviction. A state cannot continuously make minor changes in the

parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the

Ex Post Facto Clause.

For example, a state makes change A to the parole procedure after Inmate is convicted. Inmate brings a suit challenging A, but a

court finds that it does not create an ex post fact law. The state subsequently makes changes B, C, and D. Inmate is not precluded

from bringing a Constitutional challenge. And, importantly, the court must be able to compare the original parole policy with the

new policy (which includes change A as well as changes B, C, and D) to see if there is a sufficient risk of increasing the measure of

punishment.

11

Compare MICH. COMP. LAWS § 791.234(6)(a) (1998) with MICH. COMP. LAWS § 791.234(6)(a) (2005 Supp.)(changing

interview requirements). Also, the Michigan Legislature amended the statute to remove prisoners’ right to appeal denials by the

parole board. See Jackson v. Jamrog, 411 F.3d 615, 617-18 (6th Cir.2005). Defendants argue that the Sixth Circuit, in Jackson v.

Jamrog, considered this change and found that it did not create a Constitutional violation. However, the Jackson Court was only

faced with an Equal Protection Clause challenge to the statute.

12

In Fletcher v. District of Columbia, 370 F.3d 1223, 1228 (D.C.Cir.2004), the D.C. Circuit rejected plaintiff’s claim because “a

parole guideline is not a ‘law’ within the proscription of the Ex Post Facto Clause; the Commission’s guidelines are merely policy

statements, from which the Commission may depart in its discretion.” Upon rehearing, this holding was vacated based on Garner.

“The Supreme Court thus foreclosed our categorical distinction between a measure with the force of law and guidelines that are

merely policy statements....” 391 F.3d 250, 251 (D.C.Cir.2004) (citation omitted).

13

Defendants also point out that the Michigan Supreme Court has held that the continuing violations doctrine is not compatible with

the statute of limitations. See Garg v. Macomb County Cmty. Coll. Mental Health, 472 Mich. 263, 696 N.W.2d 646, 656

(Mich.2005). This is not dispostive however. Although “the duration of the statute of limitations for § 1983 actions is governed by

state law ..., federal standards govern when the statute begins to run.” Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir.2004)

(citations omitted).

8

 
 Foster-Bey v. Rubitschun
United States District Court for the Eastern District of Michigan, Southern Division April 19, 2005, Decided CIVIL NO. 05-71318

Reporter: 2005 U.S. Dist. LEXIS 40135 KENNETH FOSTER-BEY, #142187, JOHN ALEXANDER, #163875, WAYMON KINCAID, #137927, WILLIAM SLEEPER, #116539, ROBERT WEISENAUER, #157085, ERIC MCCULLUM, #120287, GERALD LEE HESSEL, #150163, Plaintiffs, v. JOHN S. RUBITSCHUN, ET AL., Defendants.

For Maurice Jones, Intervenor Plaintiff, Pro se, Marensico, MI.
For Gilberto Osequeda, Intervenor Plaintiff, Pro se, Freeland, [*2] MI US.

Subsequent History: Motion granted by, in part, Motion denied by, in part, Dismissed by, in part Foster-Bey v. Rubitschun, 2005 U.S. Dist. LEXIS 40869 ( E.D. Mich., Aug. 18, 2005)
Counsel: [*1] For Kenneth Foster, John Alexander, Waymon Kincaid, William Sleeper, Robert Weisenauer, Eric McCullum, Gerald Hessell, Plaintiffs: Paul D. Reingold, University of Michigan, Clinical Law Program, Ann Arbor, MI.
For Anthony Lynch, Consol Plaintiff, Pro se, New Haven, MI.
For James Clark, Consol Plaintiff, Pro se, Saginaw, MI.
For Holley Davis, Consol Plaintiff, Pro se, Detroit, MI.
For Johnathan Martin, Consol Plaintiff, Pro se, Freeland, MI.
For Billy Ray Abernathy, Consol Plaintiff, Pro se, Saginaw, MI.
For Brian Hagood, Consol Plaintiff, Pro se, Saginaw, MI.

For Roderick Walker, Intervenor Plaintiff, Pro se, Muskegon, MI US.
For John S. Rubitschun, in his/her official capacity as member of the Michigan Parole Board, James Atterberry, in his/her official capacity as member of the Michigan Parole Board, Miguel Berrios, in his/her official capacity as member of the Michigan Parole Board, Charles Braddock, in his/her official capacity as member of the Michigan Parole Board, Stephen DeBoer, in his/her official capacity as member of the Michigan Parole Board, Enid Livingston, in his/her official capacity as member of the Michigan Parole Board, James Quinlan, in his/her official capacity as member of the Michigan Parole Board, Marianne Samper, in his/her official capacity as member of the Michigan Parole Board, Barbara Sampson, in his/her official capacity as member of the Michigan Parole Board, Artina Hartman, in his/her official capacity as member of the Michigan Parole Board, Patricia L. Caruso, in her official capacity as director of the Michigan Department of Corrections, Defendants: Frank J. Monticello, Kevin R. Himebaugh, Leo H. Friedman, Michigan Department of Attorney General, Lansing, MI.

For Brian Luckett, Consol Plaintiff, Pro se, Saginaw, MI.

Judges: Nancy G. Edmunds, United [*3] States District Judge.

For Timothy Ganderson, Consol Plaintiff, Pro se, Saginaw, MI.

Opinion by: Nancy G. Edmunds

For Giovanni Cipriano, Intervenor Plaintiff, Pro se, Freeland, MI.
For Ralph Cobb, Intervenor Plaintiff, Pro se, Freeland, MI US.

Opinion
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(g)

For Melvin Gunn, Intervenor Plaintiff, Pro se, Freeland, MI.
For Henry Hill, Intervenor Plaintiff, Pro se, Freeland, MI.
For William Jenkins, Intervenor Plaintiff, Pro se, Freeland, MI.

Plaintiffs are state prisoners currently in the custody of the Michigan Department of Corrections. Through counsel, they have filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiffs have filed individual applications to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).

2005 U.S. Dist. LEXIS 40135, *3

Page 2 of 2

Plaintiffs must pay the full filing fee for this civil action. 28

U.S.C. § 1915(b)(1). Each prisoner is proportionally liable for If Plaintiff Hessel fails to pay the $ 35.71 filing fee within

any fees and costs that may be assessed. In re Prison thirty days from the date of this Order, each remaining

Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). Plaintiff will be responsible for a recalculated, proportionate

Thus, any fees and costs for this action must be equally share of the full filing fee. If Plaintiff Hessel does not prepay

divided among the seven plaintiffs. Id. Accordingly, each the filing fee, the Court will issue an Amended Order holding

Plaintiff is liable for $ 35.71 of the $ 250.00 filing fee.

each remaining Plaintiff liable for his recalculated,

proportionate share of the full filing fee, increased by $ 5.95.

The Court concludes from the financial date before it that

Plaintiff Hessel has not established indigence and is able to Typically, when the Court grants a plaintiffs request

prepay the filing fee for this action. Plaintiff Hessel [*4] has to [*6] proceed in forma pauperis, the Court directs the

a current spendable account balance of $ 502.49. Therefore, United States Marshal to effect service without prepayment of

the Court denies Plaintiff Hessel's application to proceed in costs for such service. In this case, counsel has represented to

forma pauperis. Accordingly, Plaintiff Hessel must pay his the Court that counsel will effect service.

portion of the $ 250.00 filing fee, $ 35.71, within thirty days from the date of this Order. Failure to do so will result in the dismissal of Plaintiff Hessel from this action.

Accordingly, the Court GRANTS Plaintiffs Foster-Bey, Alexander, Kincaid, Sleeper, Weisenauer, and McCullum's applications to proceed in forma pauperis and ORDERS the

The Court has reviewed the remaining Plaintiffs' financial agency having custody of Plaintiffs Foster-Bey, Alexander, affidavits, and certified account statements or their equivalent. Kincaid, Sleeper, Weisenauer, and McCullum to: (1)

Having considered these items, the Court grants Plaintiffs withdraw or set aside the initial partial filing fee from

Foster-Bey, Alexander, Kincaid, Sleeper, Weisenauer, and plaintiffs' trust fund accounts; (2) forward this amount to the

McCullum's applications to proceed without prepayment of Clerk of this Court within thirty (30) days of the date of this

the filing fee for this action. 28 U.S.C. § 1915(a)(1). The order; and (3) in subsequent months, or from time to time,

Court must assess and, if funds exist, collect from these forward payments of twenty percent (20%) of the preceding Plaintiffs' accounts an initial partial filing fee, consisting of month's income credited to plaintiffs' accounts to the Clerk of

twenty percent (20%) of the greater of (1) the average this Court until each plaintiff has paid his individual and

monthly deposits to each plaintiffs account, or (2) the average total sum of $ 35.71 to complete the entire filing fee of $

monthly balance in each plaintiffs account for the preceding 250.00. The Court will notify the agency having custody of

six (6) months. 28 U.S.C. § 1915(b).

plaintiffs when plaintiffs have paid the entire filing fee.

The initial partial filing fee for Kenneth Foster-Bey is $ 2.00. The initial [*5] partial filing fee for John Alexander is $ 16.00. The initial partial filing fee for Waymon Kincaid is $ 0.00. The initial partial filing fee for William Sleeper is $ 1.00. The initial partial filing fee for Robert Weisenauer is $ 3.00. The initial partial filing fee for Eric McCullum is $ 17.00.After plaintiffs pay their initial partial filing fees, each plaintiff is equally and separately liable for the proportional total sum of $ 35.71, and they must make monthly payments of twenty percent (20%) of the preceding month's income credited to their accounts until the total sum of $ 35.71 has been paid. 28 U.S.C. § 1915(b)(2).

The Court DENIES Plaintiff Hessel's Motion to Proceed In Forma [*7] Pauperis and ORDERS Plaintiff Hessel to prepay $ 35.71, his portion of the filing fee, within thirty days from the date of this Order.
SO ORDERED.
S/Nancy G. Edmunds
United States District Judge
Dated: April 19, 2005

 
 Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 1 of 30
CLOSED, CONSOL, IFP, reassigned
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:05−cv−71318−MOB−VMM

Foster et al v. Rubitschun et al Assigned to: District Judge Marianne O Battani Referred to: Magistrate Judge Virginia M Morgan Member case: (View Member Case) Case in other court: U.S. Court of Appeals − Sixth Circuit,
08−01371, 08−01372, 08
U.S. Court of Appeals − Sixth Circuit, 08−01478
U.S. Court of Appeals − Sixth Circuit, 08−01371/08−01372/08−00001 Cause: No cause code entered
Plaintiff

Date Filed: 04/05/2005 Date Terminated: 02/07/2008 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Kenneth Foster

represented by Paul D. Reingold University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734−763−4319 Email: mclp@umich.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Alexander

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Waymon Kincaid

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff William Sleeper

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Robert Weisenauer

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Eric McCullum

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 2 of 30

Gerald Hessell

represented by Paul D. Reingold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff Anthony Lynch TERMINATED: 02/06/2006
Consol Plaintiff James Clark TERMINATED: 02/06/2006
Consol Plaintiff Holley Davis TERMINATED: 02/06/2006
Consol Plaintiff Johnathan Martin TERMINATED: 02/06/2006
Consol Plaintiff Billy Ray Abernathy TERMINATED: 02/06/2006
Consol Plaintiff Brian Hagood TERMINATED: 02/06/2006
Consol Plaintiff Brian Luckett TERMINATED: 02/06/2006

represented by Anthony Lynch 146972 Macomb Correctional Facility 34625 26 Mile Road New Haven, MI 48048 PRO SE
represented by James Clark 146972 Saginaw Correctional Facility 9625 Pierce Road Saginaw, MI 48623 PRO SE
represented by Holley Davis 116440 Mound Correctional Facility 17601 Mound Road Detroit, MI 48212 PRO SE
represented by Johnathan Martin 173004 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Billy Ray Abernathy 150693 Saginaw Correctional Facility 9625 Pierce Road Saginaw, MI 48623 PRO SE
represented by Brian Hagood 183904 Saginaw Correctional Facility 9625 Pierce Road Saginaw, MI 48623 PRO SE
represented by Brian Luckett 217822 Saginaw Correctional Facility 9625 Pierce Road

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 3 of 30

Saginaw, MI 48623 PRO SE

Consol Plaintiff
Timothy Ganderson TERMINATED: 02/06/2006

represented by Timothy Ganderson 225169 Saginaw Correctional Facility 9625 Pierce Road Saginaw, MI 48623 PRO SE

V. Intervenor Plaintiff Giovanni Cipriano TERMINATED: 02/06/2006
Intervenor Plaintiff Ralph Cobb TERMINATED: 02/06/2006
Intervenor Plaintiff Melvin Gunn TERMINATED: 02/06/2006
Intervenor Plaintiff Henry Hill TERMINATED: 02/06/2006
Intervenor Plaintiff William Jenkins TERMINATED: 02/06/2006
Intervenor Plaintiff Maurice Jones TERMINATED: 02/06/2006

represented by Giovanni Cipriano 139222 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Ralph Cobb 144283 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Melvin Gunn 111525 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Henry Hill 169371 THUMB CORRECTIONAL FACILITY 3225 JOHN CONLEY DRIVE LAPEER, MI 48446 PRO SE
represented by William Jenkins 149992 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Maurice Jones 160361 Ojibway Correctional Facility North 5705 Ojibway Road Marensico, MI 49947−9771 PRO SE

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 4 of 30

Intervenor Plaintiff Gilberto Osequeda TERMINATED: 02/06/2006
Intervenor Plaintiff Roderick Walker TERMINATED: 02/06/2006

represented by Gilberto Osequeda 144441 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 PRO SE
represented by Roderick Walker 123268 Brooks Correctional Facility 2500 S. Sheridan Road Muskegon, MI 49444 PRO SE

V. Defendant John S. Rubitschun in his/her official capacity as member of the Michigan Parole Board TERMINATED: 10/25/2007
Defendant

represented by Frank J. Monticello Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517−335−7021 Fax: 527−335−7157 Email: monticellof@michigan.gov TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin Michigan Department of Attorney General 525 West Ottawa Street Suite 4th Floor, G. Mennen Williams Building P.O. Box 30217 Lansing, MI 48909 517−335−7021 Email: govorchinp@michigan.gov ATTORNEY TO BE NOTICED
Kevin R. Himebaugh Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909−7717 517−335−7021 Email: himebaughk@michigan.gov ATTORNEY TO BE NOTICED
Leo H. Friedman MI Dept of Atty Gen Corrections Division P. O. Box 30217 Lansing, MI 48909 517−335−7021 Email: friedmanl@michigan.gov TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
represented by

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 5 of 30

James Atterberry in his/her official capacity as member of the Michigan Parole Board

Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Miguel Berrios in his/her official capacity as member of the Michigan Parole Board

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Charles Braddock in his/her official capacity as member of the Michigan Parole Board TERMINATED: 10/25/2007

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Stephen DeBoer in his/her official capacity as member of the Michigan Parole Board

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 6 of 30

LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Enid Livingston in his/her official capacity as member of the Michigan Parole Board TERMINATED: 03/19/2009

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
James Quinlan in his/her official capacity as member of the Michigan Parole Board TERMINATED: 03/19/2009

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Marianne Samper in his/her official capacity as member of the Michigan Parole Board TERMINATED: 10/25/2007

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 7 of 30

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Barbara Sampson in his/her official capacity as member of the Michigan Parole Board

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Artina Hartman in his/her official capacity as member of the Michigan Parole Board

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Defendant
Patricia L. Caruso in her official capacity as director of the Michigan Department of Corrections

represented by Frank J. Monticello (See above for address) TERMINATED: 07/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 8 of 30

Defendant Sharee Booker Parole Board Member TERMINATED: 03/19/2009
Defendant John Schlinker Parole Board Member TERMINATED: 03/19/2009
Defendant Laurin' Thomas Parole Board Member
Defendant Barbara Sampson Parole Board Chairperson TERMINATED: 03/19/2009

Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED
Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED
Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) ATTORNEY TO BE NOTICED
Kevin R. Himebaugh (See above for address) ATTORNEY TO BE NOTICED

V. Movant Wilmot Moore Consolidated TERMINATED: 02/06/2006
Movant Mario Wilson Consolidated TERMINATED: 02/06/2006
Movant Larissa Barclay TERMINATED: 02/06/2006
Movant

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 9 of 30

Cassandra Barlow TERMINATED: 02/06/2006

Movant
Onie C. Bradford TERMINATED: 02/06/2006

Movant
Loretta Bradley TERMINATED: 02/06/2006

Movant
Annie Jackson TERMINATED: 02/06/2006

Movant
Kyle Jackson TERMINATED: 02/06/2006

Movant
Lutricia Long TERMINATED: 02/06/2006

Movant
Ernestine Lynch TERMINATED: 02/06/2006

Movant
Vicki Davis Mack TERMINATED: 02/06/2006

Movant
Melvin Gunn TERMINATED: 02/06/2006

Movant Kenneth Wojnicz

represented by Kenneth Wojnicz 108691 KINROSS CORRECTIONAL FACILITY 16770 S. WATERTOWER DRIVE KINCHELOE, MI 49785 PRO SE

Date Filed 04/05/2005
04/05/2005
04/05/2005 04/11/2005
04/19/2005

# Docket Text
1 CLASS ACTION COMPLAINT with exhibits 1−7, Receipt No. IFP. (Attachments: # 1 Document Continuation)(JPur, ) (Entered: 04/06/2005)
2 MOTIONS to proceed in forma pauperis by plaintiffs. (Attachments: # 1 Document Continuation)(JPur, ) (Entered: 04/06/2005)
3 MOTION for Class Certification by plaintiffs. (JPur, ) (Entered: 04/06/2005)
4 Prisoner Trust Fund Account Statement by Gerald Hessell.(JPur2, ) (Entered: 04/12/2005)
5 ORDER granting in part and denying in part 2 Application to Proceed Without Prepayment of Fees filed by Kenneth Foster,, John Alexander,, Gerald Hessell,, Waymon Kincaid,, Robert Weisenauer,, William Sleeper,, Eric McCullum,. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 04/19/2005)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 10 of 30

04/27/2005 04/27/2005 05/10/2005 05/12/2005 05/12/2005 05/12/2005 05/12/2005
05/12/2005 05/12/2005 05/17/2005 05/18/2005
05/19/2005 05/19/2005 06/01/2005
06/01/2005
06/01/2005 06/01/2005
06/06/2005 06/06/2005
06/08/2005 06/09/2005

6 CERTIFICATE OF SERVICE by plaintiffs of 1 Complaint. (DPer, ) (Entered: 04/29/2005)
7 CERTIFICATE OF SERVICE by plaintiffs of 1 Complaint. (DPer, ) (Entered: 04/29/2005)
13 NOTICE of filing fee paid in full. (DPer, ) (Entered: 05/13/2005)
8 ATTORNEY APPEARANCE: Frank J. Monticello appearing on behalf of all defendants.(Monticello, Frank) (Entered: 05/12/2005)
9 MOTION to Dismiss with Brief in Support by all defendants. (Attachments: # 1 Exhibit Opinion)(Monticello, Frank) (Entered: 05/12/2005)
10 ATTORNEY APPEARANCE: Kevin R. Himebaugh appearing on behalf of all defendants.(Himebaugh, Kevin) (Entered: 05/12/2005)
11 MOTION Hold Motion for Class Certification in Abeyance re 3 MOTION to Certify Class with Brief in Support by all defendants. (Monticello, Frank) (Entered: 05/12/2005)
12 MOTION to Stay Discovery with Brief in Support by all defendants. (Attachments: # 1 Exhibit Discovery)(Monticello, Frank) (Entered: 05/12/2005)
14 LETTER from Robert Weisenauer. (DPer, ) (Entered: 05/16/2005)
15 FEE Received in the amount of $35.71 for Partial Payment of Filing Fee by John Alexander − Receipt No. 5591−AA (JPur, ) (Entered: 05/17/2005)
16 NOTICE of hearing on 9 MOTION to Dismiss with Brief in Support, 11 MOTION Hold Motion for Class Certification in Abeyance re 3 MOTION to Certify Class with Brief in Support, 12 MOTION to Stay Discovery with Brief in Support. Motion Hearing set for 6/29/2005 02:00 PM before Honorable Nancy G Edmunds. (CHem, ) (Entered: 05/18/2005)
17 NOTICE of filing fee paid in full by Robert Weisenauer (NHoll, ) (Entered: 05/19/2005)
18 NOTICE of Filing Fee paid in full by John Alexander. (NHoll, ) (Entered: 05/20/2005)
19 RESPONSE to 12 MOTION to Stay Discovery with Brief in Support filed by Kenneth Foster. (Attachments: # 1 Exhibit First Interrogatories)(Reingold, Paul) (Entered: 06/01/2005)
20 RESPONSE to 11 MOTION Hold Motion for Class Certification in Abeyance re 3 MOTION to Certify Class with Brief in Support filed by Kenneth Foster. (Reingold, Paul) (Entered: 06/01/2005)
21 Ex Parte MOTION for Leave to File Excess Pages by Kenneth Foster. (Reingold, Paul) (Entered: 06/01/2005)
22 RESPONSE to 9 MOTION to Dismiss with Brief in Support filed by Kenneth Foster. (Attachments: # 1 Exhibit Johnson# 2 Exhibit Curtis)(Reingold, Paul) (Entered: 06/01/2005)
23 ORDER granting 21 Motion for Leave to File Excess Pages− Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 06/06/2005)
24 ORDER granting 11 Motion to hold plaintiffs' motion for class certification in abeyance and granting 12 Motion to Stay discovery, and cancelling hearing.− Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 06/06/2005)
31 NOTICE of filing fee paid in full by William Sleeper. (DPer, ) (Entered: 07/07/2005)
25 REPLY to Response re 9 MOTION to Dismiss with Brief in Support filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Exhibit

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 11 of 30

06/09/2005 06/15/2005
06/24/2005 07/06/2005 07/06/2005 07/13/2005
07/14/2005
07/15/2005 07/15/2005
07/15/2005
07/21/2005 07/25/2005 08/01/2005 08/10/2005 08/15/2005

Attachment)(Himebaugh, Kevin) (Entered: 06/09/2005)
26 CERTIFICATE OF SERVICE by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso re 25 Reply to Response to Motion,. (Himebaugh, Kevin) (Entered: 06/09/2005)
27 REPLY to Response re 9 MOTION to Dismiss with Brief in Support CORRECTED REPLY with Proof of Service filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Himebaugh, Kevin) (Entered: 06/15/2005)
28 NOTICE of hearing on 9 MOTION to Dismiss with Brief in Support, 3 MOTION to Certify Class. Motion Hearing re−set for 7/13/2005 02:00 PM before Honorable Nancy G Edmunds. (CHem, ) (Entered: 06/24/2005)
29 MOTION to Reassign Case and/ or consolidation by Kenneth Foster. (Reingold, Paul) (Entered: 07/06/2005)
30 CERTIFICATE OF SERVICE by Kenneth Foster. (Reingold, Paul) (Entered: 07/06/2005)
Minute Entry −Motion Hearing held on 7/13/2005 re 9 MOTION to Dismiss with Brief in Support filed by Patricia L. Caruso,, John S. Rubitschun,, James Quinlan,, Charles Braddock,, Marianne Samper,, Miguel Berrios,, James Atterberry,, Barbara Sampson,, Stephen DeBoer,, Enid Livingston,, Artina Hartman, before Honorable Nancy G Edmunds. (Court Reporter Suzanne Jacques) (CHem, ) (Entered: 07/19/2005)
32 SUPPLEMENTAL BRIEF re 9 MOTION to Dismiss with Brief in Support together with Certificate of Service filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Exhibit 1)(Himebaugh, Kevin) (Entered: 07/14/2005)
33 SUPPLEMENTAL BRIEF re 32 Supplemental Brief, Response filed by Kenneth Foster. (Attachments: # 1 Exhibit Motion and Brief for Rehearing# 2 Exhibit Hill Opinion)(Reingold, Paul) (Entered: 07/15/2005)
34 ATTORNEY SUBSTITUTION for John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso: Leo H. Friedman added. Attorney Frank J. Monticello terminated. Substituted Appearance of Counsel.(Friedman, Leo) (Entered: 07/15/2005)
35 CERTIFICATE OF SERVICE by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso re 34 Attorney Substitution, Substituted Appearance of Counsel. (Friedman, Leo) (Entered: 07/15/2005)
36 ORDER Requiring Supplemental Briefing to 9 Motion to Dismiss. Response due: 8/1/2005. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 07/21/2005)
37 STIPULATION for Extension of Time for Filing Supplemental Briefs by Kenneth Foster.(Reingold, Paul) (Entered: 07/25/2005)
38 MOTION for enlargement of time to file objections to order of consolidation by Anthony Lynch. (DPer, ) (Entered: 08/02/2005)
39 SUPPLEMENTAL BRIEF re 32 Supplemental Brief, motion to dismiss filed by Kenneth Foster. (Attachments: # 1 Exhibit A − No Way Out)(Reingold, Paul) (Entered: 08/10/2005)
40 RESPONSE to 36 Order Requiring Responsive Pleading with Certificate of Service by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 12 of 30

08/16/2005
08/17/2005
08/17/2005 08/18/2005 08/18/2005
08/19/2005
08/22/2005 08/26/2005 08/26/2005 08/29/2005 08/29/2005
08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/30/2005

Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Exhibit 1 − Hill Opinion)(Himebaugh, Kevin) (Entered: 08/15/2005)
41 [STRICKEN AS OF 8/17/2005] REPLY to Response re 12 MOTION to Stay Discovery with Brief in Support, 9 MOTION to Dismiss with Brief in Support filed by Kenneth Foster. (Reingold, Paul) Modified on 8/18/2005 (NHoll, ). Additional attachment(s) added on 8/23/2005 (NHoll, ). (Entered: 08/16/2005)
42 SUPPLEMENTAL BRIEF re 32 Supplemental Brief,, 39 Supplemental Brief Corrected Version filed by Kenneth Foster. (Attachments: # 1 Exhibit No Way Out)(Reingold, Paul) (Entered: 08/17/2005)
43 ORDER Striking 41 Reply to Response to Motion filed by Kenneth Foster. Signed by Honorable Nancy G Edmunds. (NHoll, ) (Entered: 08/18/2005)
44 ORDER granting in part and denying in part 9 Motion to Dismiss− Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 08/18/2005)
45 ORDER granting 38 Motion to Extend time to file objections to consolidation to 9/2/2005. − Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 08/18/2005)
46 MOTION for Reconsideration re 44 Order on Motion to Dismiss −Motion for Partial Reconsideration with Brief in Support and Certificate of Service by all defendants. (Himebaugh, Kevin) (Entered: 08/19/2005)
47 ORDER denying 46 Motion for Reconsideration − Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 08/22/2005)
48 Mail Returned as Undeliverable. Mail sent to James Clark re 47 Order on Motion for Reconsideration. (NHoll, ) (Entered: 08/29/2005)
51 Sealed Matter (B).(DTyle, ) (Entered: 08/30/2005)
49 CERTIFICATE OF SERVICE by plaintiffs re 1 Complaint upon Patricia Caruso. (DTyle, ) (Entered: 08/30/2005)
50 CERTIFICATE OF SERVICE by plaintiffs Anthony Lynch, James Clark, Holley Davis, Johnathan Martin, Billy Ray Abernathy, Brian Hagood, Brian Luckett, Timothy Ganderson of complaint served upon John Rubitschun. (DTyle, ) (Entered: 08/30/2005)
52 SUMMONS Returned Executed. James Atterberry served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
54 SUMMONS Returned Executed. Charles Braddock served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
55 SUMMONS Returned Executed. Stephen DeBoer served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
56 SUMMONS Returned Executed. Artina Hartman served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
57 SUMMONS Returned Executed. Marianne Samper served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
58 SUMMONS Returned Executed. Barbara Sampson served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
59 SUMMONS Returned Executed. Enid Livingston served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
60 SUMMONS Returned Executed. James Quinlan served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)
53 SUMMONS Returned Executed. Miguel Berrios served on 8/12/2005, answer due 9/1/2005 (DTyle, ) (Entered: 08/30/2005)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 13 of 30

08/31/2005 09/01/2005
09/06/2005
09/06/2005 09/12/2005
09/12/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005

61 RESPONSE to 38 MOTION TO EXTEND for Severance of Claims filed by Kenneth Foster. (Reingold, Paul) (Entered: 08/31/2005)
62 NOTICE of Appearance by Kevin R. Himebaugh on behalf of John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Himebaugh, Kevin) (Entered: 09/01/2005)
63 RESPONSE to 38 MOTION TO EXTEND and to Lynch−Bey Plaintiffs' Motion for Severance of Claims filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Himebaugh, Kevin) (Entered: 09/06/2005)
64 MOTION for Severance of Claims by Anthony Lynch. (NHoll, ) (Entered: 09/07/2005)
65 RESPONSE to 3 MOTION to Certify Class with Certificate of Service filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Himebaugh, Kevin) (Entered: 09/12/2005)
96 MOTION to Intervene as Plaintiff's by Larissa Barclay, Cassandra Barlow, Onie C. Bradford, Loretta Bradley, Annie Jackson, Kyle Jackson, Lutricia Long, Ernestine Lynch, Vicki Davis Mack. (NHoll, ) (Entered: 09/19/2005)
66 NOTICE of Filing Rule 5 Materials by Anthony Lynch. (NHoll, ) (Entered: 09/15/2005)
67 STATE Court Record − Supreme Court Case No. 04−00031−AA−C30.(NHoll, ) (Main Document 67 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
68 STATE Court Record − State of Michigan, Department of Corrections.(NHoll, ) (Main Document 68 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
69 STATE Court Record − Copy of Letter from State of Michigan, Dept. of Corrections.(NHoll, ) (Entered: 09/15/2005)
70 STATE Court Record − Petition for Judicial Review; Ingham County Circuit Court.(NHoll, ) (Main Document 70 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
71 STATE Court Record − State of Michigan, Case No. 04−31−AA.(NHoll, ) (Main Document 71 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
72 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 72 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
73 STATE Court Record − State of Michigan, Case No. 04−31−AA.(NHoll, ) (Main Document 73 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
74 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 74 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
75 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Entered: 09/15/2005)
76 STATE Court Record − State of Michigan, Case No. 04−31−AA.(NHoll, ) (Main Document 76 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
77 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 77 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
78 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 78 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 14 of 30

09/13/2005
09/13/2005 09/13/2005
09/13/2005 09/13/2005
09/13/2005
09/13/2005
09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/22/2005 09/23/2005 09/23/2005 09/23/2005 09/27/2005

79 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 79 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
80 STATE Court Record − State of Michigan, Case No. 04−31−AA.(NHoll, ) (Main Document 80 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
81 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 81 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
82 STATE Court Record − State of Michigan, Case No. 04−31−AA.(NHoll, ) (Main Document 82 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
83 STATE Court Record − Ingham Coounty Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 83 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
84 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 84 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
85 STATE Court Record − Ingham County Circuit Court, Case No. 04−31−AA.(NHoll, ) (Main Document 85 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
86 STATE Court Record − Thirtieth Judicial Circuit Court, Case No. 04−31−AA.(NHoll, ) (Entered: 09/15/2005)
87 STATE Court Record − Michigan Court of Appeals, Case No. 04−31−AA.(NHoll, ) (Entered: 09/15/2005)
88 STATE Court Record − Michigan Court of Appeals, Case No. 257290.(NHoll, ) (Main Document 88 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
89 STATE Court Record − Michigan Court of Appeals, Case No. 257290.(NHoll, ) (Main Document 89 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
90 STATE Court Record − Michigan Court of Appeals Case No. 257290.(NHoll, ) (Main Document 90 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
91 STATE Court Record − Ingham County Circuit Court Case No. 257290.(NHoll, ) (Main Document 91 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
92 STATE Court Record − Michigan Court of Appeals, Case No. 257290.(NHoll, ) (Entered: 09/15/2005)
93 STATE Court Record − Letter to Michigan Supreme Court by Lynch.(NHoll, ) (Main Document 93 replaced on 8/27/2010) (SSch). (Entered: 09/15/2005)
94 STATE Court Record − Michigan Supreme Court Case No. 257290.(NHoll, ) (Entered: 09/15/2005)
95 EX PARTE REQUEST for leave to file brief exceeding 20 page limitation by all plaintiffs. (NHoll, ) (Entered: 09/15/2005)
97 AMENDED CERTIFICATE OF SERVICE by Anthony Lynch. (DPer, ) (Entered: 09/23/2005)
98 EX PARTE NOTICE of intent to file motion to intervene as plaintiff's by Melvin Gunn. (NHoll, ) (Entered: 09/26/2005)
99 MOTION to Strike Responses and/or MOTION for More Definite Statement by all plaintiffs. (NHoll, ) (Entered: 09/26/2005)
100 REPLY to Response re 64 MOTION to Sever filed by all plaintiffs. (NHoll, ) (Entered: 09/26/2005)
101 [FILING ERROR: SIGNATURE BLOCKS INCOMPLETE] STIPULATION dismissing claims against the defendants in their individual capacities and amending the case caption by Kenneth Foster.(Reingold, Paul) Modified on

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 15 of 30

09/28/2005 09/29/2005 10/13/2005
10/25/2005 10/25/2005 10/26/2005
11/23/2005 11/28/2005 12/06/2005
12/12/2005 02/06/2006
02/08/2006 06/12/2006 10/03/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006

9/28/2005 (NHoll, ). (Entered: 09/27/2005)
102 ORDER dismissing claims against the defendants in their individual capacities and amending the case caption. Signed by Honorable Nancy G Edmunds. (NHoll, ) (Entered: 09/28/2005)
103 NOTICE TO APPEAR: Scheduling Conference set for 10/25/2005 10:00 AM before Honorable Nancy G Edmunds. (CHem, ) (Entered: 09/29/2005)
104 MOTION to Intervene as plaintiffs by Giovanni Cipriano, Ralph Cobb, Melvin Gunn, Henry Hill, William Jenkins, Maurice Jones, Gilberto Osequeda, Roderick Walker. (Attachments: # 1 Document Continuation)(DTyle, ) (Entered: 10/17/2005)
Minute Entry −Scheduling Conference held on 10/25/2005 before Honorable Nancy G Edmunds. (CHem, ) (Entered: 10/25/2005)
105 SCHEDULING ORDER: Dispositive Motion Cut−off set for 8/1/2006 Discovery due by 6/15/2006. Signed by Honorable Nancy G Edmunds. (Refer to image for additional dates)(CHem, ) (Entered: 10/25/2005)
106 ORDER granting 3 MOTION to Certify Class filed by Kenneth Foster,, John Alexander,, Gerald Hessell,, Waymon Kincaid,, Robert Weisenauer,, William Sleeper,, Eric McCullum,. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 10/26/2005)
107 NOTICE of Change of Address by Anthony Lynch. (NHoll, ) (Entered: 11/28/2005)
Reset Telephonic Conference: Status Conference re−set for 12/12/2005 10:30 AM before Honorable Nancy G Edmunds. (CHem, ) (Entered: 11/28/2005)
108 [STRICKEN − DISCOVERY MATERIAL LR 26.2]CERTIFICATE OF SERVICE by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Himebaugh, Kevin) Modified on 12/6/2005 (SMar, ). (Entered: 12/06/2005)
Minute Entry −Telephone Conference held on 12/12/2005 before Honorable Nancy G Edmunds. (CHem, ) (Entered: 12/12/2005)
109 ORDER granting 64 Motion to Sever, denying 96 Motion to Intervene, granting in part and denying in part 99 Motion to Strike, granting in part and denying in part 99 Motion for More Definite Statement, denying 104 Motion to Intervene− Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 02/06/2006)
110 NOTICE to Prisoners of Class Certification from Counsel. (NHoll, ) (Entered: 02/13/2006)
111 STIPULATED AMENDED SCHEDULING ORDER: Dispositive Motion Cut−off set for 10/2/2006 Discovery due by 3/15/2006. Signed by Honorable Nancy G Edmunds. (Refer to image for additional dates)(CHem, ) (Entered: 06/12/2006)
112 STIPULATION AND ORDER Extending: Dispositive Motion Cut−off set for 11/1/2006 Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 10/03/2006)
113 Cross MOTION for Summary Judgment by all plaintiffs. (Reingold, Paul) (Entered: 11/01/2006)
114 SUPPLEMENTAL BRIEF re 113 Cross MOTION for Summary Judgment filed by all plaintiffs. (Reingold, Paul) (Entered: 11/01/2006)
115 Ex Parte MOTION for Leave to File page limit by all plaintiffs. (Reingold, Paul) (Entered: 11/01/2006)
116 MOTION for Leave to File non electronic filing by all plaintiffs. (Reingold, Paul) (Entered: 11/01/2006)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 16 of 30

11/01/2006 11/01/2006
11/01/2006 11/02/2006 11/02/2006 11/02/2006 11/09/2006 11/13/2006
11/13/2006 11/13/2006 11/13/2006 11/13/2006

117 Ex Parte MOTION for Leave to File Excess Pages by all plaintiffs. (Reingold, Paul) (Entered: 11/01/2006)
118 MOTION for Summary Judgment with Brief in Support and Proof of Servicer thereon by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Index of Exhibits List of Exhibits# 2 Exhibit 1 List of Plaintiffs' Crimes and Sentences# 3 Exhibit 2 Pamphlet of Parole Process# 4 Exhibit 3 Michigan Lifers Paroled between 010170 to present# 5 Exhibit 4 Deposition of Kenneth Foster# 6 Exhibit 5 Deposition of Gerald Lee Hessell# 7 Exhibit 6 Report of Investigation to Court# 8 Exhibit 7 Presentence Investigation Report# 9 Exhibit 8 Article Selepak Report Spurs Litigation# 10 Exhibit 9 OTIS printout of Leslie Allen Williams# 11 Exhibit 10 Deposition of Kenneth McGinnis# 12 Exhibit 11 Deposition of Robert Steinman# 13 Exhibit 12 Deposition of Barbara Sampson)(Himebaugh, Kevin) (Entered: 11/01/2006)
119 NOTICE of Change of Attorney Information by Paul D. Reingold on behalf of Kenneth Foster. (Reingold, Paul) (Entered: 11/01/2006)
120 ORDER REASSIGNING CASE from Judge Nancy G Edmunds to Judge Marianne O Battani. (Teets, A.) (Entered: 11/02/2006)
121 ORDER denying 116 Motion for Leave to File Non−Electronic Filing − Signed by Honorable Marianne O Battani. (BThe, ) (Entered: 11/02/2006)
122 ORDER granting 117 Motion for Leave to File Excess Pages− Signed by Honorable Marianne O Battani. (CMot, ) (Entered: 11/02/2006)
123 NOTICE of hearing on 118 MOTION for Summary Judgment with Brief in Support and Proof of Servicer thereon, 113 Cross MOTION for Summary Judgment. Responses due by 12/1/2006. Replies due by 12/18/2006. Motion Hearing set for 2/7/2007 02:00 PM before Honorable Marianne O Battani. (CMot, ) (Entered: 11/09/2006)
124 [FILING ERROR − INDEX OF EXHIBITS AND EXHIBITS ARE ONLY IN SUPPORT OF 113 AND 114 ]INDEX of Exhibits re 118 MOTION for Summary Judgment with Brief in Support and Proof of Servicer thereon by all plaintiffs. (Attachments: # 1 Exhibit 1− When life did not mean life# 2 Exhibit 2 Declaration of perry johnson# 3 Exhibit 3 Declaration robert brown# 4 Exhibit 4 declaration of william hudson# 5 Exhibit 5 declaration of william kime# 6 Exhibit 6 declaration of gary gabry# 7 Exhibit 7 declaration of ronal gach# 8 Exhibit 8 declaration of marvin may# 9 Exhibit 9 declaration of sandra reese (johnson)# 10 Exhibit 10 declaration of frank buchko# 11 Exhibit declaration of jessie rivers# 12 Exhibit 12 declaration of michael steely# 13 Exhibit 13 declaration of john alexander# 14 Exhibit 14 declaration of kenneth foster−bey# 15 Exhibit declaration of gerald lee hessell# 16 Exhibit 16 declaration of waymon kincaid# 17 Exhibit 17 declaration of eric mccullum# 18 Exhibit 18 declaration of william sleeper# 19 Exhibit 19 declaration of robert weisenauer# 20 Exhibit declaration of barbara levine)(Reingold, Paul) Modified on 11/14/2006 (PMil, ) (Entered: 11/13/2006)
125 NOTICE of hearing on (233 in 2:05−cv−71318−MOB−VMM, 130 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause and objections to def's first progress report. Responses due by 10/27/2008 Replies due by 10/31/2008 Motion Hearing set for 11/19/2008 02:00 PM before District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 11/13/2006)
126 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 EXHIBIT 21 part 2 re 125 Exhibit by all plaintiffs.(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
127 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 ]EXHIBIT 21 part 3 re 125 Exhibit by all plaintiffs.(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
128 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 ]EXHIBIT 22−35 re 124 Exhibit Index,,,, by all plaintiffs. (Attachments: # 1 Exhibit 22

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 17 of 30

11/13/2006 11/13/2006
11/13/2006
11/14/2006 11/14/2006 12/01/2006

excerpts from media round table# 2 Exhibit 23 declaration of robert gillett# 3 Exhibit 24 corrections in war time# 4 Exhibit 25 mdoc annual report# 5 Exhibit 26 five years after# 6 Exhibit 27 testimony of new board chair# 7 Exhibit 28 statements of mdoc# 8 Exhibit 29 parole board training materials# 9 Exhibit 30 mdoc web page# 10 Exhibit 31 report transcript of prisions# 11 Exhibit 32 audit report# 12 Exhibit 33 michigan judges# 13 Exhibit 34 criminal defense affidavits# 14 Exhibit 35 examples of letters from sentencing)(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
129 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 EXHIBIT 36−38 re 124 Exhibit Index,,,, by all plaintiffs. (Attachments: # 1 Document Continuation 36 31.50 state bar prisons# 2 Exhibit 37 examples of sentencing# 3 Exhibit 38 examples of lifer cases)(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
130 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 ]EXHIBIT 39−71 re 124 Exhibit Index,,,, by all plaintiffs. (Attachments: # 1 Exhibit 39 dep stephen marschke 10.20# 2 Exhibit 30 dep stephen marschke 21.33# 3 Index of Exhibits 39 dep of stephen marschke (28 end)# 4 Exhibit 40 dep of kenneth mcginnis (1)# 5 Document Continuation 40 dep of kenneth mcginnins (2)# 6 Exhibit 41 dep robert steinman (1)# 7 Document Continuation 41 dep of robert steinman ( part 2)# 8 Exhibit 42 dep excerpts john rubitschun# 9 Exhibit 43 dep excerpts of barbara sampson# 10 Exhibit 44 dep excerpts of enid livingston# 11 Exhibit 45 examples of parole board corresp# 12 Exhibit 47 mdoc good time# 13 Exhibit 48 mdoc time computation# 14 Exhibit 49 parolable lifers# 15 Exhibit 50 parole status# 16 Exhibit 51 list of lifers paroled# 17 Exhibit 52 mdoc estimate of pool of parole# 18 Exhibit 53 mdoc chart of parole# 19 Exhibit 54 parolable lifer commitments# 20 Exhibit 55 johnson v million# 21 Exhibit 57 dyer v bowlen# 22 Exhibit 70 declaration of paul reingold# 23 Exhibit 71 random sample of drug lifer parole# 24 Document Continuation 71 random sample drug lifer parole files)(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
131 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 AND 114 ]EXHIBIT 72 re 125 Exhibit by all plaintiffs. (Attachments: # 1 Document Continuation 72a sample of lifer parole files# 2 Document Continuation 72a random sample lifer john gaddie(2)# 3 Document Continuation 72b lifer parole ronald wondero# 4 Document Continuation 72c random sample lifer glenn peters# 5 Document Continuation 72e random sample lifer carl anderson# 6 Document Continuation 72d random sample martin vargas(1A)# 7 Document Continuation 72d random sample of lifer martin vargas (1)# 8 Document Continuation 72d random sample lifer martin vargas (2)# 9 Exhibit 72 f random sample lifer marian beach# 10 Document Continuation 72g random sample lifer emanual rivera# 11 Document Continuation 72h random sample lifer reynoldo rodriguez# 12 Document Continuation 72i random sample lifer curtis smith# 13 Document Continuation 72k random sample lifer nick lazin (1)# 14 Document Continuation 72k random sample lifer nick lazin (2)# 15 Document Continuation 72k random sample lifer nick lazin (3)# 16 Document Continuation 72k random sample lifer nick lazin(4)# 17 Document Continuation 72j random sample lifer willian lutzke (1)# 18 Document Continuation 72j. random sample lifer william lutzke.(2)# 19 Document Continuation 72j. random sample lifer william lutzke.(3))(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/13/2006)
132 [FILING ERROR − EXHIBITS ARE IN SUPPORT OF 113 and 114 ]EXHIBIT 46 re 124 Exhibit Index,,,, by all plaintiffs. (Attachments: # 1 Document Continuation Ex 46 policy directive (2)# 2 Document Continuation Ex 46 policy directive (3)# 3 Document Continuation Ex 46. policy directive (4)# 4 Document Continuation Ex 46. policy directive (5)# 5 Document Continuation Ex 46 policy directive (6)# 6 Document Continuation Ex 46 policy directive (7))(Reingold, Paul) Modified on 11/14/2006 (PMil, ). (Entered: 11/14/2006)
133 EXHIBIT 56 re 114 Supplemental Brief by all plaintiffs.(Reingold, Paul) (Entered: 11/14/2006)
134 RESPONSE to 113 Cross MOTION for Summary Judgment (Response Brief) filed by all plaintiffs. (Reingold, Paul) (Entered: 12/01/2006)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 18 of 30

12/01/2006
12/18/2006
12/18/2006 02/07/2007
02/28/2007 06/04/2007 06/28/2007 07/02/2007 07/02/2007 07/03/2007 10/23/2007 10/25/2007 10/31/2007 11/05/2007 11/19/2007

135 [FILING ERROR: WRONG EVENT USED − THIS DOCUMENT IS TITLED "DEFENDANTS' RESPONSE TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT]. REPLY to Response re 113 Cross MOTION for Summary Judgment with Proof of Servicer thereon filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Index of Exhibits List of Exhibits# 2 Exhibit 1 deposition of Barbara Sampson# 3 Exhibit 2 deposition of Robert Steinman# 4 Exhibit 3 deposition of Kenneth McGinnis)(Himebaugh, Kevin) Modified on 12/4/2006 (THal, ). (Entered: 12/01/2006)
136 REPLY to Response re 118 MOTION for Summary Judgment with Brief in Support and Proof of Servicer thereon filed by John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson, Artina Hartman, Patricia L. Caruso. (Attachments: # 1 Index of Exhibits List of Exhibits# 2 Exhibit 1−Dep of Marschke# 3 Exhibit 2−Levine, Local Comment# 4 Exhibit 3−Dep of Foster−Bey# 5 Exhibit 4−Dep of Alexander)(Himebaugh, Kevin) (Entered: 12/18/2006)
137 [INDEX OF EXHIBITS IS LAST PAGE OF REPLY]REPLY to Response re 113 Cross MOTION for Summary Judgment reply brief on cross−motions filed by all plaintiffs. (Attachments: # 1 Exhibit A Judge's Order# 2 Exhibit B Levine Letter)(Reingold, Paul) Modified on 12/19/2006 (PMil, ). (Entered: 12/18/2006)
Minute Entry −Motion Hearing held on 2/7/2007 re 113 Cross MOTION for Summary Judgment filed by Kenneth Foster,, John Alexander,, Gerald Hessell,, Waymon Kincaid,, Robert Weisenauer,, William Sleeper,, Eric McCullum,, 118 MOTION for Summary Judgment with Brief in Support and Proof of Servicer thereon filed by Patricia L. Caruso,, John S. Rubitschun,, James Quinlan,, Charles Braddock,, Marianne Samper,, Miguel Berrios,, James Atterberry,, Barbara Sampson,, Stephen DeBoer,, Enid Livingston,, Artina Hartman, before Honorable Marianne O Battani. (Court Reporter Allen Burnham) (CMot, ) (Entered: 02/07/2007)
138 Letter from Billy Paige (PMil) (Entered: 03/01/2007)
139 NOTICE TO APPEAR: Status Conference set for 6/28/2007 03:30 PM before Honorable Marianne O Battani (BThe) (Entered: 06/04/2007)
Minute Entry −Status Conference held on 6/28/2007 before Honorable Marianne O Battani. (CMot) (Entered: 06/29/2007)
140 [FILING ERROR − RULE 11 VIOLATION]STIPULATION to amend order of class certification by Kenneth Foster (Reingold, Paul) Modified on 7/2/2007 (Miller, P.). (Entered: 07/02/2007)
141 CERTIFICATE OF SERVICE by Kenneth Foster re 140 Stipulation (Reingold, Paul) (Entered: 07/02/2007)
142 STIPULATION AND ORDER of Class Certification. Signed by Honorable Marianne O Battani. (BThe) (Entered: 07/03/2007)
143 OPINION AND ORDER granting 113 Plaintiffs' Motion for Summary Judgment; denying 118 Defendants' Motion for Summary Judgment. Signed by Honorable Marianne O Battani. (BThe) (Entered: 10/23/2007)
144 STIPULATION AND ORDER FOR SUBSTITUTION OF DEFENDANTS Sharee Booker, and John Schlinker, and Laurin' Thomas, and Barbara Sampson added. Marianne Samper; Charles Braddock and John S. Rubitschun terminated. Signed by Honorable Marianne O Battani. (PMil) (Entered: 10/26/2007)
145 Letter from Charles Hurst. (PMil) (Entered: 11/01/2007)
146 Letter from Dalron Harris (PMil) (Entered: 11/06/2007)
147 ATTORNEY SUBSTITUTION for John S. Rubitschun, James Atterberry, Miguel Berrios, Charles Braddock, Stephen DeBoer, Enid Livingston, James Quinlan, Marianne Samper, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 19 of 30

11/19/2007
11/19/2007 11/19/2007 11/20/2007 12/07/2007 12/18/2007
12/18/2007
12/20/2007 12/26/2007 01/02/2008 01/11/2008
01/11/2008

Schlinker, Laurin' Thomas: A. Peter Govorchin added. Attorney Leo H. Friedman terminated. (Govorchin, A.) (Entered: 11/19/2007)
148 ORDER Establishing Briefing Schedule: Proposed Judgments due by 12/18/2007,Responses due by 1/11/2008, Proposals Hearing set for 1/23/2008 02:00 PM before Honorable Marianne O Battani Signed by Honorable Marianne O Battani. (BThe) (Entered: 11/19/2007)
Minute Entry −Telephone/Status Conference held on 11/19/2007 before Honorable Marianne O Battani. (CMot) (Entered: 11/19/2007)
149 Letter from Robert L. Walker (THal) (Entered: 11/21/2007)
150 Letter from Charmel Allen. (PMil) (Entered: 11/26/2007)
151 Letter from Tonya Carson (PMil) (Entered: 12/10/2007)
152 SUPPLEMENTAL BRIEF re 143 Order on Motion for Summary Judgment, Brief in support of porposed remedial order filed by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index# 2 Exhibit 1−Pls' proposed remedial order# 3 Exhibit 2 chart of class size# 4 Exhibit 3 MDOC parole approval rates# 5 Exhibit 5 Lippitt letter# 6 Exhibit 4 Capps chart) (Reingold, Paul) (Entered: 12/18/2007)
153 MEMORANDUM re 143 Order on Motion for Summary Judgment, named as Brief in Support of Defendants' Proposed Remedial Order by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Remedial Order# 3 Exhibit 2 − Rubitschun Affidavit# 4 Exhibit 3 − List of Paroled Lifers 1992−Nov 2007) (Himebaugh, Kevin) (Entered: 12/18/2007)
154 Letter from Flenoid Greer. (PMil) (Entered: 12/27/2007)
155 Letter from Michael Ruszkiewicz (Attachments: # 1 Document Continuation) (PMil) (Entered: 12/27/2007)
156 Letter from Carlton Mixon. (PMil) (Entered: 01/07/2008)
157 RESPONSE to 153 Memorandum,, On Remedies by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit Sample security classification screen# 3 Exhibit Declaration of Karen Kantzler# 4 Exhibit Jackson Citizen Patriot article# 5 Exhibit Chart of Lifer Commitments) (Reingold, Paul) (Entered: 01/11/2008)
158 RESPONSE to 153 Memorandum,, by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas. (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit 1 − Irvin v Michigan Parole Board# 3 Exhibit 2 − Affidavit of Jeff Anderson# 4 Exhibit 3 − List Parolable Life Population by Year# 5 Exhibit 4 − Graph − % of Parolable Lifers Paroled by Year# 6 Exhibit 5 − Graph − Parolable LIfe Population By Year# 7 Exhibit 6 − List − Life Offender New Commitments# 8 Exhibit 7 − List − Parolable Life Population by Year# 9 Exhibit 8 − Graph ALO By Age at Commit Date# 10 Exhibit 9 − Graph ALO by Recent Commit Date# 11 Exhibit 10 − Graph ALO by Current Age# 12 Exhibit 11 − List − ALO − Years Served# 13 Exhibit 12 − Chart ALO Active Sentence Combinations# 14 Exhibit 13 − Graph − ALO Serving Multiple Life Sentences# 15 Exhibit # 16 Exhibit # 17 Exhibit 16 − Chart − ALO Statistics# 18 Exhibit 17 − Chart − ALO Having Served 20 or more years# 19 Exhibit 18 − Chart − Statistics of ALO Having Single Life Sentence and No other Sentence# 20 Exhibit 19 − Chart − Active Sentences of ALO Having Single Life Sentence and no other sentence# 21 Exhibit 20 − Chart − Active Sentences of ALO Having Single Life Sentence with no other sentence# 22 Exhibit 21 − Chart − All Life Sentence for ALO# 23 Exhibit 22 − Chart − All Active Life Sentences of ALO having served 20 years or more# 24 Exhibit 23 − Chart − All Active Sentence (regardless of length sentence) of ALO having served 20 or more years..# 25 Exhibit 24 − Graph − ALO months since parole board lifer interview# 26 Exhibit 25 − Affidavit of Patricia Caruso# 27 Exhibit 25 − Affidavit of Patricia Caruso# 28 Exhibit 27 − Affidavit of

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 20 of 30

01/16/2008 01/17/2008 01/17/2008 01/21/2008 01/21/2008
01/22/2008 01/23/2008
01/23/2008 02/04/2008 02/04/2008 02/04/2008 02/06/2008
02/06/2008 02/06/2008
02/07/2008
02/08/2008
02/25/2008 02/25/2008 02/28/2008
02/29/2008

Barbara Sampson# 29 Exhibit 28 − Affidavit of Barry Wickman# 30 Exhibit 29 − Credit Guide for Judges# 31 Exhibit 30 − Judgment of Sentence) (Himebaugh, Kevin) (Entered: 01/11/2008)
159 Letter from Eduardo Guerrero (PMil) (Entered: 01/17/2008)
160 Letter from Norman Mohead. (PMil) (Entered: 01/17/2008)
161 Letter from Erica Blackwell (PMil) (Entered: 01/17/2008)
162 Ex Parte MOTION for Leave to File Excess Pages and time limits on reply brief on remedies by all plaintiffs. (Reingold, Paul) (Entered: 01/21/2008)
163 REPLY to 158 Response (Free) Defendants' Response on Remedies by all plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit A − Comparision Chart of Lifer Commitments# 3 Exhibit B − Chart of Lifer Parole Rates# 4 Exhibit C − Chart of Average Years Served for Plaintiff Class) (Reingold, Paul) Modified on 1/22/2008 (Miller, P.). (Entered: 01/21/2008)
164 ORDER granting 162 Motion for Leave to File Excess Pages. Signed by Honorable Marianne O Battani. (CMot) (Entered: 01/22/2008)
Minute Entry −Miscellaneous Hearing held on 1/23/2008 Re: 148 Order,, Set Motion and RRDeadlines/Hearings,, Set Deadlines/Hearings: before Honorable Marianne O Battani. Evidentiary/Proposal Hearing set for 2/6/2008 10:00 AM before Honorable Marianne O BattaniDisposition: continued(Court Reporter Allen Burnham) (CMot) (Entered: 01/24/2008)
165 Letter from Carlo Vartinelli. (PMil) (Entered: 01/29/2008)
166 Letter from Eduardo M. Guerrero (DTyl) (Entered: 02/07/2008)
170 Letter from Walter Kinard (PMil) (Entered: 02/11/2008)
171 Letter from Robert Mitchell (PMil) (Entered: 02/12/2008)
Minute Entry −Miscellaneous Hearing/Proposal Hearing held on 2/6/2008 before Honorable Marianne O Battani. (Court Reporter Allen Burnham) (CMot) (Entered: 02/06/2008)
167 Letter from Ms. Erica Blackwell (DTyl) (Entered: 02/07/2008)
Set/Reset Deadlines as to Miscellaneous Hearing/Review Parole Board set for 9/4/2008 10:00 AM before Honorable Marianne O Battani (BThe) (Entered: 02/08/2008)
168 DECLARATORY JUDGMENT and first remedial injunctive order and final order for purposes of appeal. Signed by Honorable Marianne O Battani. (DHam) (Entered: 02/07/2008)
169 EXHIBIT List and Exhibts to Declaratory Judgment re 168 Judgment by all plaintiffs (Attachments: # 1 Exhibit A− Parole Statue MCL 791.233# 2 Exhibit B − Parole Regulations MAC 791.7715−16# 3 Exhibit C − Policy directive PD−DWA−45.05 (criteria)# 4 Exhibit D − Policy directive PD−DWA−45.12 (grid scores)) (Reingold, Paul) (Entered: 02/08/2008)
172 TRANSCRIPT of Civil/Motion Hearing held on 1/23/08. (Court Reporter: Allen T. Burnham) (Number of Pages: 26) (Burnham, A) (Entered: 02/25/2008)
173 TRANSCRIPT of Civil/Motion Hearing held on 2/06/08. (Court Reporter: Allen T. Burnham) (Number of Pages: 29) (Burnham, A) (Entered: 02/25/2008)
176 Letter from Al Cannon regarding Edward Hill. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 03/03/2008)
174 Letter from Kenneth Wojnicz. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 03/03/2008)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 21 of 30

02/29/2008 03/05/2008
03/06/2008 03/10/2008
03/10/2008 03/11/2008
03/11/2008 03/13/2008
03/14/2008 03/18/2008 03/19/2008 03/19/2008 03/19/2008

175 CERTIFICATE OF SERVICE re (71 in 2:05−cv−72378−MOB) Letter Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 03/03/2008)
177 NOTICE OF APPEAL by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Patricia Caruso, John Rubitschun, Charles Braddock, Miguel Berrios, Marianne Samper, James Atterberry, James Quinlan, Artina Tinsley Hardman, Enid Livingston, Stephen DeBoer re (168 in 2:05−cv−71318−MOB−VMM) Judgment, (143 in 2:05−cv−71318−MOB−VMM, 143 in 2:05−cv−71318−MOB−VMM) Order on Motion for Summary Judgment,. Fee Status: No Fee Paid. (Himebaugh, Kevin) (Entered: 03/05/2008)
178 Certificate of Service re (74 in 2:05−cv−72378−MOB, 177 in 2:05−cv−71318−MOB−VMM) Notice of Appeal. (PMil) (Entered: 03/06/2008)
179 Appeal Fee received for (74 in 2:05−cv−72378−MOB, 177 in 2:05−cv−71318−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker, James Atterberry in the amount of $ 455.00 − Receipt No. 568441. (PMil) (Entered: 03/11/2008)
184 Letter from Arthur D. Thomas Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 03/17/2008)
180 MOTION for Attorney Fees and brief in support by Kenneth Foster. (Attachments: # 1 Index of Exhibits Exhibit List on Fees, # 2 Exhibit Ex. 1 − PDR declaration on fees, # 3 Exhibit Ex. 2 PDR resume 2008, # 4 Exhibit Ex. 3 PDR Time Sheets, # 5 Exhibit Ex. 4 Student Time Sheets, # 6 Exhibit Ex. 5 Niehoff Affidavit, # 7 Exhibit Ex. 6 McGuinness Affidavit, # 8 Exhibit Ex. 7 Soble Affidavit, # 9 Exhibit Ex. 8 List of Prisoner Letters, # 10 Exhibit Ex. 9 E−mail List)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 03/11/2008)
181 MOTION for Attorney Fees and brief for costs by Kenneth Foster. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit Ex. 1 Pl's Itemizational of costs, # 3 Exhibit Ex. 2 Receipts, # 4 Exhibit Ex. 3 PDR's affidavit on costs)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 03/11/2008)
182 NOTICE of hearing on (180 in 2:05−cv−71318−MOB−VMM, 77 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief in support, (181 in 2:05−cv−71318−MOB−VMM, 78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief for costs. Motion Hearing set for 4/25/2008 02:00 PM before Honorable Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (CMot) (Entered: 03/13/2008)
183 ORDER Denying Emergency Motion to Intervene re (174 in 2:05−cv−71318−MOB−VMM) Letter. Signed by Honorable Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 03/14/2008)
185 NOTICE OF CROSS APPEAL by Kenneth Foster re (44 in 2:05−cv−71318−MOB−VMM) Order on Motion to Dismiss. Fee Status: No Fee Paid. (Reingold, Paul) (Entered: 03/18/2008)
186 Certificate of Service re (185 in 2:05−cv−71318−MOB−VMM) Notice of Cross Appeal. (LHac) (Entered: 03/19/2008)
187 NOTICE OF APPEAL by Anthony Lynch. Fee Status: No Fee Paid. (LHac) (Entered: 03/20/2008)
189 REQUEST for Service of Defendant's Appeal by Anthony Lynch. Associated Cases: 2:05−cv−72378−MOB, 2:05−cv−71318−MOB−VMM (LHac) (Entered: 03/20/2008)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 22 of 30

03/19/2008 03/20/2008 04/01/2008 04/01/2008 04/03/2008
04/03/2008 04/03/2008 04/03/2008 04/04/2008
04/04/2008 04/11/2008
04/11/2008 04/16/2008 04/17/2008

190 Letter from Herman J Wilson to Judge Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (THal) (Entered: 03/24/2008)
188 Certificate of Service re (187 in 2:05−cv−71318−MOB−VMM) Notice of Appeal. (LHac) (Entered: 03/20/2008)
191 Letter from Lloyd Travis. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/03/2008)
197 Letter from James McCorkle. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/07/2008)
192 ORDER With Stipulation to Extend Time to File Response re (180 in 2:05−cv−71318−MOB−VMM, 77 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief in support filed by Kenneth Foster, (181 in 2:05−cv−71318−MOB−VMM, 78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief for costs filed by Kenneth Foster. Responses due by 4/4/2008 Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (PMil). (Entered: 04/03/2008)
194 NOTICE OF APPEAL by Kenneth Wojnicz re (80 in 2:05−cv−72378−MOB) Order. Fee Status: No Fee Paid. (PMil) (Entered: 04/04/2008)
195 REQUEST for exclusion by Kenneth Wojnicz. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/04/2008)
198 NOTICE of Correction re (89 in 2:05−cv−72378−MOB, 192 in 2:05−cv−71318−MOB−VMM) Order to Extend Time to (Free), Order to Extend Time to (Free). Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/08/2008)
193 RESPONSE to (78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees with Certificate of Service filed by Gerald Hessell, James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Barbara Sampson(Parole Board Chairperson), Patricia Caruso, Charles Braddock, Miguel Berrios, Marianne Samper, Barbara Sampson(Michigan Department of Corrections Parole Board Member), James Atterberry, James Quinlan, Artina Tinsley Hardman, Enid Livingston, Stephen DeBoer. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Transcript of Proposal Hearing 2/6/08, Pertinent Pages Only, # 3 Exhibit 2−−First Quartile List, # 4 Exhibit 3−−Affidavit of Barbara S. Sampson)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Himebaugh, Kevin) (Entered: 04/04/2008)
196 Certificate of Service re (91 in 2:05−cv−72378−MOB) Notice of Appeal. (PMil) (Entered: 04/04/2008)
199 REPLY to Response re (78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees, (77 in 2:05−cv−72378−MOB) MOTION for Attorney Fees filed by Kenneth Foster. (Attachments: # 1 Exhibit A Batchelder v Geary)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 04/11/2008)
200 Letter from Felton Woods Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/14/2008)
201 ORDER Denying re (195 in 2:05−cv−71318−MOB−VMM) Request filed by Kenneth Wojnicz. Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 04/16/2008)
202 SUPPLEMENTAL BRIEF re (78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees, (77 in 2:05−cv−72378−MOB) MOTION for Attorney Fees for time sheet for plaintiffs' lead counsel and students time filed by Kenneth Foster.

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 23 of 30

04/17/2008 04/25/2008 04/25/2008
04/28/2008 04/28/2008 04/29/2008
04/29/2008 04/29/2008 04/30/2008
05/01/2008

(Attachments: # 1 Document Continuation Supplement time sheet (johnson &macey))Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 04/17/2008)
203 Letter from Robert Kemp Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/18/2008)
204 APPLICATION to Proceed without prepayment of fees on Appeal with Certificate of Prisoner Institutional Trust Fund Account Activity by Kenneth Wojnicz. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 04/25/2008)
Minute Entry −Motion Hearing held on 4/25/2008 re (180 in 2:05−cv−71318−MOB−VMM, 77 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief in support filed by Kenneth Foster, (181 in 2:05−cv−71318−MOB−VMM, 78 in 2:05−cv−72378−MOB) MOTION for Attorney Fees and brief for costs filed by Kenneth Foster before District Judge Marianne O Battani. Disposition: GRANTED(Court Reporter Allen Burnham) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (CMot) (Entered: 04/25/2008)
205 SUPPLEMENTAL BRIEF re (99 in 2:05−cv−72378−MOB, 202 in 2:05−cv−71318−MOB−VMM) Supplemental Brief, corrected time sheet for students filed by Kenneth Foster. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 04/28/2008)
206 Letter from Tom Holsinger Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (THal) (Entered: 04/29/2008)
207 APPLICATION to Proceed In Forma Pauperis on Appeal by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A Declaration and Certificate of John Alexander, # 3 Exhibit B Declaration and Certificate of Kenneth Foster−Bey, # 4 Exhibit C Declaration and Certificate of Waymon Kincaid, # 5 Exhibit D Declaration and Certificate of Eric McCullum, # 6 Exhibit E Declaration and Certificate of William Sleeper, # 7 Exhibit F Declaration and Certificate of Robert Weisenauer)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Reingold, Paul) (Entered: 04/29/2008)
208 ORDER for Costs (SEE IMAGE FOR DETAILS). Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 04/29/2008)
209 ORDER For Attorney Fees (SEE IMAGE FOR DETAILS). Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 04/29/2008)
210 AMENDED (74 in 2:05−cv−72378−MOB, 177 in 2:05−cv−71318−MOB−VMM) Notice of Appeal,, (168 in 2:05−cv−71318−MOB−VMM) Judgment, (208 in 2:05−cv−71318−MOB−VMM, 105 in 2:05−cv−72378−MOB) Order, (106 in 2:05−cv−72378−MOB, 209 in 2:05−cv−71318−MOB−VMM) Order, (143 in 2:05−cv−71318−MOB−VMM, 143 in 2:05−cv−71318−MOB−VMM) Order on Motion for Summary Judgment, by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Patricia Caruso, John Rubitschun, Charles Braddock, Miguel Berrios, Marianne Samper, James Atterberry, James Quinlan, Artina Tinsley Hardman, Enid Livingston, Stephen DeBoer with Certificate of Service Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (Himebaugh, Kevin) (WRONG EVENT USED − see #211) Modified on 5/1/2008 (LBeh). (Entered: 04/30/2008)
211 NOTICE OF APPEAL (AMENDED) by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Patricia Caruso, John Rubitschun, Charles Braddock, Miguel Berrios, Marianne Samper, James Atterberry, James Quinlan, Artina Tinsley Hardman, Enid Livingston, Stephen

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 24 of 30

05/01/2008 05/01/2008 05/01/2008 05/09/2008 05/16/2008 05/16/2008 05/16/2008 05/21/2008 05/21/2008 06/12/2008 06/26/2008
06/30/2008
07/22/2008

DeBoer re (168 in 2:05−cv−71318−MOB−VMM) Judgment, (106 in 2:05−cv−72378−MOB, 209 in 2:05−cv−71318−MOB−VMM) Order, (143 in 2:05−cv−71318−MOB−VMM, 143 in 2:05−cv−71318−MOB−VMM) Order on Motion for Summary Judgment,. Fee Status: No Fee Paid. (Himebaugh, Kevin) Modified on 5/1/2008 (LBeh). (Entered: 05/01/2008)
212 Certificate of Service re (108 in 2:05−cv−72378−MOB) Notice of Appeal,,. (THal) (Entered: 05/01/2008)
213 MOTION to Proceed in Forma Pauperis in the United States Court of Appeals for the Sixth Circuit by Anthony Lynch. Associated Cases: 2:05−cv−72378−MOB, 2:05−cv−71318−MOB−VMM (NHol) (Entered: 05/01/2008)
214 Letter from Kerry Browning regarding John Howard Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 05/02/2008)
215 Letter from Steve C. Holsinger regarding John Howard Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 05/13/2008)
216 Letter from Patricia Schreiner regarding John Howard Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 05/20/2008)
217 Letter from Margaret Howard regarding John Howard Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 05/20/2008)
218 Letter from Robert Grubbs. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (PMil) (Entered: 05/20/2008)
219 ORDER Striking re (207 in 2:05−cv−71318−MOB−VMM) Application to Proceed In Forma Pauperis,, filed by Kenneth Foster. Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 05/21/2008)
220 ORDER Denying re (204 in 2:05−cv−71318−MOB−VMM) Application to Proceed Without Prepayment of Fees filed by Kenneth Wojnicz. Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB (BThe) (Entered: 05/21/2008)
221 TRANSCRIPT of Civil/Motion Hearing held on 4/25/2008. (Court Reporter: Allen T. Burnham) (Number of Pages: 21) (Burnham, A) (Entered: 06/12/2008)
223 Appeal Fee received for (211 in 2:05−cv−71318−MOB−VMM) Notice of Appeal filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker and James Atterberry in the amount of $ 455.00 − Receipt No. 572011. (LBeh) (Entered: 07/11/2008)
222 ORDER from U.S. Court of Appeals − Sixth Circuit re (211 in 2:05−cv−71318−MOB−VMM, 108 in 2:05−cv−72378−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker, James Atterberry − Disposition: Dismissed for want of prosecution [Appeal Case Number 08−1626] (PMil) (Entered: 07/09/2008)
224 ORDER from U.S. Court of Appeals − Sixth Circuit re (211 in 2:05−cv−71318−MOB−VMM, 108 in 2:05−cv−72378−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker, James Atterberry − Disposition: Motion to Reinstate is granted [Appeal Case Number 08−1626] (PMil) (Entered: 07/23/2008)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 25 of 30

07/30/2008 09/02/2008 09/03/2008
09/04/2008 09/04/2008 09/04/2008 09/08/2008 09/11/2008 09/12/2008 09/18/2008 10/02/2008
10/02/2008

225 Letter from Gerald Kelly Platz Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 07/31/2008)
226 MOTION for Order to Show Cause by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex 1 Defs' Motion for Stay, # 3 Exhibit Ex 2 Pls response to stay, # 4 Exhibit Ex 3 CAPPS Chart #1, # 5 Exhibit Ex 4 CAPPS Chart #2)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 09/02/2008)
227 RESPONSE to (123 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause with Certificate of Service filed by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Barbara Sampson(Parole Board Chairperson), Patricia Caruso, Miguel Berrios, Barbara Sampson(Michigan Department of Corrections Parole Board Member), James Atterberry, James Quinlan, Artina Tinsley Hardman, Enid Livingston, Stephen DeBoer. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Proposal Hrg Transcript (pg 27))Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 09/03/2008)
Minute Entry −Miscellaneous Hearing/Review Parole Board held on 9/4/2008 before District Judge Marianne O Battani. Disposition: Continued(Court Reporter Allen Burnham) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 09/04/2008)
Set Deadlines/Hearings: Miscellaneous Hearing/Review Parole Board continued to 11/19/2008 02:00 PM before District Judge Marianne O Battani Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 09/04/2008)
228 SCHEDULING ORDER continuing Review Hearing to 11/19/08 at 2:00. Plaintiffs' brief due 10/2/2008 Response due by 10/27/2008 Replies due by 10/31/2008 Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 09/04/2008)
229 NOTICE by Kenneth Foster of withdrawal of (226 in 2:05−cv−71318−MOB−VMM) MOTION for Order to Show Cause. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 09/08/2008)
230 Letter from D. Dean Hackett Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 09/15/2008)
231 Letter from Arthur Anderson Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 09/15/2008)
232 Letter from Walter Lee Travier−EL Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (PMil) (Entered: 09/19/2008)
233 MOTION for Order to Show Cause and objections to def's first progress report by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex. A Chart: rates 1998−2002, # 3 Exhibit Ex. B − Foster−Bey parole materials, # 4 Exhibit Ex. C Gaddie parole materials, # 5 Exhibit Ex. D Deruyscher parole materials, # 6 Exhibit Ex. E Fulgham parole materials, # 7 Exhibit Ex. F Rodriguez parole materials, # 8 Exhibit Ex. G chart: sample random files, # 9 Exhibit Ex. H Rohn parole materials, # 10 Exhibit Ex. I Scola parole materials, # 11 Exhibit Ex. J Chart sample denial files, # 12 Exhibit Ex. K Chart denial reasons, # 13 Exhibit Ex. L chart years to next review, # 14 Exhibit Ex. M Chart lifer hearings, # 15 Exhibit Ex. N Chart commutation hearings)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 10/02/2008)
234 MOTION for Leave to File Excess Pages by Kenneth Foster. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 10/02/2008)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 26 of 30

10/02/2008 10/02/2008 10/03/2008 10/03/2008 10/27/2008
10/30/2008 10/30/2008 10/30/2008

235 SUPPLEMENTAL BRIEF re (168 in 2:05−cv−71318−MOB−VMM) Judgment Plaintiff's brief on minimization/innocence and consecutive sentencing filed by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex A Anderson Parole Materials, # 3 Exhibit Ex B Turner Parole Materials, # 4 Exhibit Ex C Valiroso Parole Materials)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 10/02/2008)
238 Letter from Nathaniel Turner. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (PMil) (Entered: 10/07/2008)
236 ORDER granting (234) Motion for Leave to File Excess Pages in case 2:05−cv−71318−MOB−VMM; granting (131) Motion for Leave to File Excess Pages in case 2:05−cv−72378−MOB−VMM. Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 10/03/2008)
237 NOTICE of hearing on (233 in 2:05−cv−71318−MOB−VMM, 130 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause and objections to def's first progress report. Responses due by 10/27/2008 Replies due by 10/31/2008 Motion Hearing set for 11/19/2008 02:00 PM before District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 10/03/2008)
239 RESPONSE to (130 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause and objections to defs' first progress report and defs' response to plfs' brf on minimization/innocence and consecutive sentencing filed by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Barbara Sampson(Parole Board Chairperson). (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Lifer Interview Report, # 3 Exhibit 2 − Affidavit of Barbara Sampson, # 4 Exhibit 3 − Letter, # 5 Exhibit 4 − Transcript of 2/6/2008 Proposal Hearing, # 6 Index of Exhibits 5 − First Quartile Voting Table, # 7 Exhibit 6 − Depo of Kenneth Foster−Bey, # 8 Exhibit 7 − Offender profile of Floyd Caldwell, # 9 Exhibit 8 − Affidavit of Clayton Straseske, # 10 Exhibit 9 − Affidavit of Anthony King, # 11 Exhibit 10 − Affidavit of Thomas Combs, # 12 Exhibit 11 − Affidavit of Ruth Schueller, # 13 Exhibit 12 − Affidavit of Miguel Berrios, # 14 Exhibit 13 − Affidavit of Laurin Thomas, # 15 Exhibit 14 − Affidavit of David R. Kleinhardt, # 16 Exhibit 15 − Table re public hearings held, # 17 Exhibit 16 − Table of Lifers Paroled since 1970, # 18 Exhibit 17 − Commutation granted 1969 to present, # 19 Exhibit 18 − Transcript of 4/17/2008 Public Hearing of Lippert)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 10/27/2008)
240 JUDGMENT in favor of PLAINTIFF (Nunc Pro Tunc) against DEFENDANTS (See Doc. #168 under Case No. 05−71318), ORDER Granting Doc. #110 MOTION to Proceed in Forma Pauperis in the United States Court of Appeals for the Sixth Circuit filed by Anthony Lynch. Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−72378−MOB−VMM, 2:05−cv−71318−MOB−VMM (BThe) (Entered: 10/30/2008)
241 JUDGMENT in favor of PLAINTIFF against DEFENDANTS Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−72378−MOB−VMM, 2:05−cv−71318−MOB−VMM (BThe) (Entered: 10/30/2008)
244 ORDER from U.S. Court of Appeals − Sixth Circuit re (74 in 2:05−cv−72378−MOB−VMM, 177 in 2:05−cv−71318−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker, James Atterberry, (82 in 2:05−cv−72378−MOB−VMM, 185 in 2:05−cv−71318−MOB−VMM) Notice of Cross Appeal filed by Kenneth Foster, (211 in 2:05−cv−71318−MOB−VMM, 108 in 2:05−cv−72378−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock,

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 27 of 30

10/31/2008
10/31/2008 11/03/2008 11/18/2008
11/18/2008
11/19/2008 11/26/2008 12/05/2008 12/15/2008

Patricia L. Caruso, Stephen DeBoer, John Rubitschun, John Schlinker, James Atterberry − Disposition: Motion for a stay is denied without prejudice [Appeal Case Number 08−1371, 08−1372, 08−1626] (PMil) (Entered: 10/31/2008)
242 REPLY to Response re (233 in 2:05−cv−71318−MOB−VMM, 130 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause and objections to def's first progress report and objections to defs first progress report filed by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex 1 Mickens−Thomas v Vaughn, # 3 Exhibit Ex 2 Sample Denial Forms, # 4 Exhibit Ex 3 Voting Chart, # 5 Exhibit Ex 4 Interviewing Chart)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 10/31/2008)
243 RESPONSE to (233 in 2:05−cv−71318−MOB−VMM, 130 in 2:05−cv−72378−MOB−VMM) MOTION for Order to Show Cause and objections to def's first progress report Plaintiff's reply brief on minimization/innocenc and consecutive sentencing filed by Kenneth Foster. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul)[REPLY TO SUPPLEMENTAL BRIEF 235 ] Modified on 10/31/2008 (PPau). (Entered: 10/31/2008)
245 MOTION to Reassign Case filed by Brady Smith in case 08−14002. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (KMil) (Entered: 11/04/2008)
246 EXHIBIT Supplemental Exhibit (Affidavit of Anne C. Benion) re (136 in 2:05−cv−72378−MOB−VMM, 239 in 2:05−cv−71318−MOB−VMM) Response to Motion,,,,,, by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Barbara Sampson(Parole Board Chairperson) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 11/18/2008)
247 CERTIFICATE OF SERVICE by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas, Barbara Sampson(Parole Board Chairperson) re (246 in 2:05−cv−71318−MOB−VMM, 144 in 2:05−cv−72378−MOB−VMM) Exhibit,, Supplemental Exhibit to [R. 239] Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 11/18/2008)
Minute Entry −Motion Hearing re Parole Hearing Review held on 11/19/2008 re (130 in 2:05−cv−72378−MOB−VMM, 233 in 2:05−cv−71318−MOB−VMM) MOTION for Order to Show Cause filed by Kenneth Foster before District Judge Marianne O Battani. (Court Reporter Allen Burnham) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 11/20/2008)
248 ORDER from U.S. Court of Appeals − Sixth Circuit denying motion to proceed in forma pauperis re (91 in 2:05−cv−72378−MOB−VMM, 194 in 2:05−cv−71318−MOB−VMM) Notice of Appeal filed by Kenneth Wojnicz [Appeal Case Number 08−1478] (THal) (Entered: 12/01/2008)
249 ORDER Denying re: MOTION for Order to Show Cause and objections to def's first progress report filed by Kenneth Foster., ( Progress Report due by 4/30/2009, Miscellaneous Hearing re: Review of Parole Board set for 5/14/2009 02:00 PM before District Judge Marianne O Battani) Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (BThe) (Entered: 12/05/2008)
250 LETTER by Gerald Houghteling. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) Modified on 12/17/2008 (THal). (Entered: 12/16/2008)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 28 of 30

12/15/2008 12/17/2008 12/22/2008
12/22/2008 12/22/2008
12/22/2008 12/29/2008 03/09/2009 03/19/2009
04/07/2009 04/13/2009 04/30/2009
05/07/2009

251 APPLICATION to Proceed In Forma Pauperis by movant Gerald Houghteling. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 12/16/2008)
252 NOTICE of Correction re (148 in 2:05−cv−72378−MOB−VMM, 148 in 2:05−cv−72378−MOB−VMM, 250 in 2:05−cv−71318−MOB−VMM, 250 in 2:05−cv−71318−MOB−VMM) MOTION for Order to Show Cause, MOTION for Sanctions. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 12/17/2008)
253 TRANSCRIPT of Civil/Motion Hearing held on 2/7/2007. (Court Reporter/Transcriber: Allen T. Burnham) (Number of Pages: 45) Redaction Request due 1/12/2009. Redacted Transcript Deadline set for 1/22/2009. Release of Transcript Restriction set for 3/23/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Burnham, A) (Entered: 12/22/2008)
254 Notice of Filing Transcript. (Burnham, A) (Entered: 12/22/2008)
255 TRANSCRIPT of Civil/Motion Hearing held on 11/19/2008. (Court Reporter/Transcriber: Allen T. Burnham) (Number of Pages: 56) Redaction Request due 1/12/2009. Redacted Transcript Deadline set for 1/22/2009. Release of Transcript Restriction set for 3/23/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Burnham, A) (Entered: 12/22/2008)
256 Notice of Filing Transcript. (Burnham, A) (Entered: 12/22/2008)
257 ORDER from U.S. Court of Appeals − Sixth Circuit re (91 in 05−72378, 194 in 05−71318) Notice of Appeal filed by Kenneth Wojnicz − Disposition: Dismissed for want of prosecution. [Appeal Case Number 08−1478] (KMil) (Entered: 01/05/2009)
258 Letter to Chief Judge from Oddis K. Gwinn Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (THal) (Entered: 03/10/2009)
259 NOTICE by James Atterberry, Miguel Berrios, Stephen DeBoer, Enid Livingston, James Quinlan, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Sharee Booker, John Schlinker, Laurin' Thomas of Substitution of Defendants, and Certificate of Service (Attachments: # 1 Exhibit 1 − Table of Appointments)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 03/19/2009)
260 ORDER from U.S. Court of Appeals − Sixth Circuit − Disposition: that the appellant's motion to voluntarily dismiss the appeal is granted [Appeal Case Number 08−1374] (LHac) (Entered: 04/07/2009)
261 Letter to Honorable Marianne Battani from James Earl McCorkle regarding exhibit filing. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (DWor) (Entered: 04/13/2009)
262 NOTICE by James Atterberry, Miguel Berrios, Stephen DeBoer, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Laurin' Thomas, Patricia Caruso Proof of Service of mailing Defendants' Progress Reports Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) Modified on 4/30/2009 (DHam). [WRONG EVENT USED] (Entered: 04/30/2009)
263 Supplement to Defts' Progress Report REPORT by James Atterberry, Miguel Berrios, Stephen DeBoer, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Laurin' Thomas (Attachments: # 1 Exhibit List of Exhibits, # 2 Exhibit 1 − Desc of Sections fo the Report &Summaries, # 3 Exhibit 2 − Section A4 'approved for Public Hearing', # 4 Exhibit 3 − Public Hearing Activity − Addendum, # 5 Exhibit

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 29 of 30

05/14/2009 05/15/2009 08/31/2009
09/14/2009 09/21/2009
09/21/2009 10/19/2009 11/03/2009 11/18/2009 12/02/2009

4 − Case Info Packet − Edward Guerrero, # 6 Exhibit 5 − Case Info Packet − Martin Vargas)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 05/07/2009)
Minute Entry −Miscellaneous Hearing held on 5/14/2009 before District Judge Marianne O Battani. (Court Reporter Allen Burnham) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 05/14/2009)
264 ORDER Establishing Briefing Schedule: ( Plaintiffs Report due by 8/31/2009, Defendants Response due by 9/21/2009, Hearing on the matters set for 10/15/2009 02:00 PM before District Judge Marianne O Battani) Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (BThe) (Entered: 05/15/2009)
265 RESPONSE to (263 in 2:05−cv−71318−MOB−VMM, 157 in 2:05−cv−72378−MOB−VMM) Report (Free), Report (Free), Report (Free) Defendants' Second Remedial Report by Kenneth Foster. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex 1 Public hearing data chart, # 3 Exhibit Ex 2 Board Voting Records, # 4 Exhibit Ex 3 Interview Tracking Chart, # 5 Exhibit Ex 4 Interview Tracking Chart May 2009, # 6 Exhibit Ex 5 Robins Material, # 7 Exhibit, # 8 Exhibit Ex 7 Kissane Warden's Recommendation, # 9 Exhibit Ex 8 Next−Review Date Chart, # 10 Exhibit Ex 9 Review Date Survey Letter, # 11 Exhibit Ex 10 Psychological Reports, # 12 Exhibit Ex 11 Chart of Board Member Changes)Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 08/31/2009)
ReSet Hearings: Hearing on the reports reset for 10/19/2009 02:30 PM before District Judge Marianne O Battani (Court not available on 10/15/09). Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 09/14/2009)
266 REPLY to (159 in 2:05−cv−72378−MOB−VMM) Response (Free), Response (Free), Response (Free), Response (Free) by James Atterberry, Miguel Berrios, Stephen DeBoer, Barbara Sampson(in his/her official capacity as member of the Michigan Parole Board), Artina Hartman, Patricia L. Caruso, Laurin' Thomas, Patricia Caruso, Miguel Berrios, Barbara Sampson(Michigan Department of Corrections Parole Board Member), James Atterberry, Artina Tinsley Hardman, Stephen DeBoer. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Himebaugh, Kevin) (Entered: 09/21/2009)
267 REPLY to (266 in 2:05−cv−71318−MOB−VMM, 160 in 2:05−cv−72378−MOB−VMM) Reply (Free), Reply (Free), Reply (Free) letter re: court hearing by Kenneth Foster. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (Reingold, Paul) (Entered: 09/21/2009)
Minute Entry − Miscellaneous Hearing held on 10/19/2009 Re Hearing on the reports before District Judge Marianne O Battani. (Court Reporter Allen Burnham) Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 10/19/2009)
268 ORDER on the Defendants' Second Remedial Report with Stipulation of Approval., ( Telephone Conference set for 12/3/2009 03:30 PM before District Judge Marianne O Battani) Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (BThe) (Entered: 11/03/2009)
269 ORDER from U.S. Court of Appeals − Sixth Circuit − Disposition: DENIED [Appeal Case Number 08−1371/08−1372/08−1626] (SSch) (Entered: 11/18/2009)
ReSet Hearings: Telephone Conference reset for 1/11/2010 02:00 PM before District Judge Marianne O Battani Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 12/02/2009)

Case: 2:05-cv-71318-MOB-VMM As of: 09/22/2010 11:16 AM EDT 30 of 30

01/11/2010 01/13/2010 02/18/2010 04/22/2010

Minute Entry − Status Conference held via telephone conference on 1/11/2010 before District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (CMot) (Entered: 01/12/2010)
270 CONSENT ORDER Following Status Conference Signed by District Judge Marianne O Battani. Associated Cases: 2:05−cv−71318−MOB−VMM, 2:05−cv−72378−MOB−VMM (BThe) (Entered: 01/13/2010)
271 JUDGMENT from U.S. Court of Appeals − Sixth Circuit − Disposition: Ordered that the orders of the District Court are Affirmed in part, Reversed in part, Vacated in part and the case is Remanded for further proceedings. [Appeal Case Number 08−1371; 08−1372; 08−1626] (JCha) (Entered: 02/18/2010)
272 MANDATE from U.S. Court of Appeals − Sixth Circuit as to (211 in 2:05−cv−71318−MOB−VMM, 108 in 2:05−cv−72378−MOB−VMM) Notice of Appeal,, filed by Enid Livingston, Patricia Caruso, Sharee Booker, Miguel Berrios, James Quinlan, Artina Tinsley Hardman, Artina Hartman, Marianne Samper, Laurin' Thomas, Charles Braddock, Patricia L. Caruso, John Rubitschun, Stephen DeBoer, John Schlinker, James Atterberry. [Appeal Case Number 08−1371/08−1372/08−1626]. (CGre) (Entered: 04/22/2010)

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 10a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

KENNETH FOSTER, et al.,

X

Plaintiffs-Appellees (08-1371/1626); -

Plaintiffs/Cross-Appellants (08-1372),

-

v.

-,>

-

SHAREE BOOKER, in his/her official capacity -

as member of the Michigan Parole Board, et

-

al.,

-

Defendants-Appellants (08-1371/1626); -

Defendants/Cross-Appellees (08-1372). -

-

N

Nos. 08-1371/1372/1626

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 05-71318; 05-72378—Marianne O. Battani, District Judge.

Argued: November 3, 2009

Decided and Filed: February 18, 2010 Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.*

_________________

COUNSEL
ARGUED: Kevin R. Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Defendants. Paul D. Reingold, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor, Michigan, for Plaintiffs. ON BRIEF: Kevin R. Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Defendants. Paul D. Reingold, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor, Michigan, for Plaintiffs.

*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
1

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_________________
OPINION _________________
ROGERS, Circuit Judge. Defendants, the Michigan Parole Board and the Director of the Michigan Department of Corrections, appeal the district court’s grant of summary judgment in favor of plaintiffs on their ex post facto claim. Plaintiffs, inmates in the custody of the Michigan Department of Corrections sentenced to life imprisonment with the possibility of parole for offenses committed before October 1, 1992, brought this § 1983 action to challenge the Michigan Parole Board’s application of post-1992 changes to Michigan’s parole laws to plaintiffs’ parole review. The district court, in determining that application of the changes to plaintiffs violated the Ex Post Facto Clause, relied on statistics showing average annual rates of parole and average years served at parole from 1942 to 2004, as well as evidence that the post-1992 reconstituted Parole Board had curtailed the exercise of its discretion in a wholesale fashion. The district court subsequently entered a permanent injunction and awarded plaintiffs’ costs and attorney fees.
To the extent that plaintiffs face a risk of increased punishment under the post1992 parole laws as compared to the laws in effect when they committed their offenses, we cannot conclude that changes to the parole laws caused such an increase. Rather, the new Board’s low rates of parole may be attributable largely to the legitimate exercise of discretion in granting fewer paroles. Even assuming that changes in the number of paroles did not result from a stricter exercise of discretion, it is not clear that plaintiffs have shown a sufficient risk of increased punishment to prevail on their ex post facto claim. Thus plaintiffs were not entitled to judgment as a matter of law, and the summary judgment and grant of injunctive relief must be reversed.
I.
Plaintiffs filed this class action lawsuit against the Michigan Parole Board and the Director of the Michigan Department of Corrections pursuant to 42 U.S.C. § 1983.

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Plaintiffs allege that changes to Michigan’s parole laws in 1992 and 1999, as implemented and applied retroactively to their parole review, violate the Ex Post Facto and Due Process Clauses of the United States Constitution. The district court granted plaintiffs’ motion for class certification. The parties later agreed to define the class as
[a]ll parolable lifers in the custody of the Michigan Department of Corrections who committed crimes (for which they received a parolable life sentence) before October 1, 1992, and whose parole the “new” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. Excluded from this definition are socalled “drug lifers” who were convicted of distribution or possession of controlled substances, regardless of whether the crime was one originally subject to parolable life or one converted to parolable life at a later time.
“Parolable lifer” is a term used by the parties and the district court to refer to a “prisoner sentenced to imprisonment for life” for an offense other than first degree murder, first degree criminal sexual conduct, or a few other specific categories of offenses. See Mich. Comp. Laws § 791.234(6)-(7). Thus the plaintiff class generally includes inmates sentenced to life with the possibility of parole, for pre-1992 non-drug crimes.
An inmate sentenced to parolable life for a crime committed before October 1, 1992, comes within the Board’s jurisdiction after he or she has served ten calendar years of the life sentence. Mich. Comp. Laws § 791.234(7)(a). Once an inmate comes within the Board’s jurisdiction, the Board may parole the inmate at any time, see id., although “release on parole is discretionary with the parole board,” id. § 791.234(11). At all times relevant to this lawsuit, the statutory discretion has been limited by the requirement that a “prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that the prisoner will not become a menace to society or to the public safety.” Id. § 791.233(1)(a). If the Board decides not to parole an inmate after he or she has served ten years, then the Board reviews the inmate for parole periodically thereafter, until the inmate “is paroled, discharged, or deceased.” Id. § 791.234(8)(b).

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If the Board decides to move forward with the parole process, either at the tenyear mark or following an inmate’s subsequent review, then the Board holds a public hearing. Id. § 791.234(8)(c). The Board must give notice of the hearing to the inmate’s sentencing judge (or that judge’s successor in office). Id. If the sentencing judge “files written objections to the granting of the parole within 30 days of receipt of the notice of hearing,” then the process comes to an end. Id. Absent an objection, however, the Board ultimately decides whether to grant parole after holding the public hearing. See id. § 791.234(8)(a)-(d).
Plaintiffs’ ex post facto and due process claims are based on the cumulative effect of statutory changes to the structure and composition of the Board in 1992 and changes to parole procedures in 1992 and 1999. From the Board’s establishment in 1953 until 1992, Board members were “within the state civil service.” 1953 Mich. Pub. Acts No. 232 at p. 413 (§ 32); see also 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)). According to one former Director of the Michigan Department of Corrections, serving as a Board member “was like any other civil service job: a member could stay until he or she wanted to leave or was removed for cause.” In 1992, however, the Michigan Legislature repealed the provision that had established the civil service board, 1992 Mich. Pub. Acts No. 181 at p. 1125 (§ 32(3)), and created instead a board of ten members “who shall not be within the state civil service,” Mich. Comp. Laws § 791.231a(1) (emphasis added); see 1992 Mich. Pub. Acts No. 181 at p. 1124 (§ 31a(1)). This represented a three-member increase in the size of the Board. Compare 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)) (“There is established in the department a parole board consisting of 7 members . . . .”), with Mich. Comp. Laws § 791.231a(1) (“Beginning October 1, 1992, there is established in the department, a parole board consisting of 10 members . . . .”). As of 1992, Board members are limited to four-year terms, although a member may seek reappointment at the end of his or her term. Mich. Comp. Laws § 791.231a(2). The law now also requires that “[a]t least 4 members of the parole board shall be persons who, at the time of their appointment, have never been employed by or appointed to a position in the department of corrections.” Id.

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Like the structure and composition of the Board, the procedure for paroling inmates sentenced to parolable life has also changed over time. Until 1982, inmates sentenced to parolable life could expect an initial interview with the Board after having served seven years, with subsequent interviews “at no greater than 36-month intervals following the initial interview,” i.e., a 7+3+3 interview structure. MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective Oct. 15, 1982); see MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective Nov. 15, 1980); MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective June 18, 1979). In 1982, the Michigan Legislature amended the law to require the initial interview at the four-year mark with subsequent interviews “biennially thereafter,” i.e., a 4+2+2 interview structure. 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 34(4)(a)). The Legislature changed the law again a decade later such that, as of 1992, a Board member is not statutorily required to interview an inmate sentenced to parolable life before the inmate comes within the Board’s jurisdiction. Rather, the initial interview is required only after the inmate has served ten years. Mich. Comp. Laws § 791.234(8)(a); see 1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)). Moreover, as of 1992, the inmate could expect to be reinterviewed as infrequently as every five years, i.e., a 10+5+5 interview structure, not every two or three years as had been the previous practice. 1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)).
In 1999, the Legislature eliminated the statutory reinterview requirement altogether. As a result, as of 1999, a Board member need only interview an inmate sentenced to parolable life after the inmate has served ten years. See Mich Comp. Laws § 791.234(8)(a); 1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(a)). Interviews take place “thereafter as determined by the” Board. Mich. Comp. Laws § 791.234(8)(a). Rather than requiring regular reinterview of an inmate, the statute now requires the Board to review the inmate’s paper file at five-year intervals. Id. § 791.234(8)(b); see 1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(b)). At oral argument, however, the Board’s counsel stated that, in practice, the Board exercises its discretion to reinterview an inmate every ten years following the initial ten-year interview.

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Legislative changes in 1999 also curtailed an inmate’s right to judicial review of the denial of parole. The Legislature had made an inmate’s right to appeal explicit in 1982 by providing that the “action of the parole board in granting or denying a parole shall be appealable to the circuit court.” 1982 Mich. Pub. Acts No. 314 at p. 1357 (§ 34(5)). Before 1982, the law had provided only that the Board’s action of releasing an inmate was “not . . . reviewable if in compliance with law.” 1953 Mich. Pub. Acts No. 232 at p. 414 (§ 34); see 1958 Mich. Pub. Acts No. 211 at p. 281 (§ 34); 1978 Mich. Pub. Acts No. 81 at p. 219 (§ 34(5)). As a result of the 1999 amendments, only the prosecutor or the victim of an inmate’s crime has a statutory right to appeal the Board’s decision to grant parole. Mich. Comp. Laws § 791.234(11); see 1999 Mich. Pub. Acts No. 191 at p. 1077 (§ 34(9)).
Plaintiffs also allege that in the 1990s the Board stopped providing written reasons to explain its lack of interest in moving an inmate forward to a public hearing. See MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA45.05 (effective Feb. 10, 1986) (setting forth Board’s practice of “prepar[ing] a written summary of [Board’s] action on all parole denial cases”). This change appears to have been within the statutory discretion of the Board. Since 1982, Michigan law has required that “[w]hen the parole board makes a final determination not to release a prisoner, the prisoner shall be provided with a written explanation of the reason for denial.” Mich. Comp. Laws § 791.235(12); see 1982 Mich. Pub. Acts No. 314 at p. 1358 (§35(10)). The Michigan Court of Appeals in 2001, by interpreting “final determination” to mean determinations that had progressed through all the steps in the parole eligibility process, refused to require a written explanation at the “no interest” stage. Gilmore v. Parole Bd., 635 N.W.2d 345, 357-58 (Mich. Ct. App. 2001). While plaintiffs argue that a “subtle change” in the 1999 statutory amendments, dealing with the requirement of a public hearing,1 provided the basis for the Board’s policy change

1As of 1999, the statute provides that a “decision to grant or deny parole to [a] prisoner [sentenced to parolable life] shall not be made until after a public hearing,” Mich. Comp. Laws § 791.234(8)(c); see 1999 Mich. Pub. Acts No. 191 at p. 1076 (§34(6)(c)), whereas the predecessor provision had stated that a “parole shall not be granted a prisoner so sentenced until after a public hearing,” 1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(b)).

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in this regard, the Gilmore court did not mention, much less rely upon, that statutory change.
In sum, the statutory amendments that provide the basis for plaintiffs’ ex post facto challenge (1) altered the structure and composition of the Board; (2) reduced the frequency of parole reviews after an initial ten-year interview; (3) substituted paper reviews for in-person interviews; (4) eliminated plaintiffs’ right to appeal a denial of parole; and (5) contained new language consistent with the Board’s practice of not giving written reasons for a statement of “no interest” in moving forward with parole. Plaintiffs allege that the Board’s retroactive application of the 1992 and 1999 changes to the parole laws creates a significant risk that plaintiffs will face greater punishment than they would have faced under the law in place at the time they committed their offenses.
The Board initially moved to dismiss plaintiffs’ complaint for failure to state a claim upon which relief can be granted. The district court granted in part and denied in part the Board’s motion. See Foster-Bey v. Rubitschun, No. 05-71318, 2005 WL 2010181 (E.D. Mich. Aug. 18, 2005). Most significant for purposes of this appeal, the district court granted the Board’s motion with regard to plaintiffs’ due process claim on the ground that plaintiffs do not have a constitutionally protected liberty interest in parole. Id. at *6. Moreover, to the extent that plaintiffs’ sentencing judges assumed that parole procedures would not change over time, this assumption was improper and, therefore, did not amount to a factual error in sentencing that violated due process. Id. The district court denied the Board’s motion with respect to plaintiffs’ ex post facto claim, id. at *7, and concluded that this court’s decision in Shabazz v. Gabry, 123 F.3d 909 (6th Cir. 1997), did not preclude plaintiffs’ ex post facto challenge, Foster-Bey, 2005 WL 2010181, at *5. In Shabazz, a more comprehensive plaintiff class lost a facial challenge to the constitutionality of the 1992 change to a 10+5+5 interview structure. The district court determined that, because the Michigan Legislature had made additional changes to the parole laws in 1999 (after this court had decided Shabazz), the cumulative effect of the 1992 and 1999 changes to Michigan’s parole laws could not have been

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litigated in Shabazz. Id. at *5 & n.10. According to the district court, a “state cannot continuously make minor changes in the parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the Ex Post Facto Clause.” Id. at *5 n.10.
Following discovery, the parties cross-moved for summary judgment on plaintiffs’ ex post facto claim. On October 23, 2007, the district court granted plaintiffs’ motion and denied the Board’s motion. See Foster-Bey v. Rubitschun, No. 05-71318, 2008 WL 7020690 (E.D. Mich. Oct. 23, 2008). The district court determined that the discretionary nature of the Board’s decision whether to grant parole did not preclude plaintiffs’ ex post facto challenge. Id. at *9. After considering the cumulative effect of the challenged amendments to the parole laws, id. at *10, the district court concluded that the “change in the make-up of the Michigan Parole Board, the Board’s understanding of why the change occurred and how it was to exercise its discretion, its redefining of the eligibility procedure for [inmates sentenced to parolable life], and changes to the timing and intervals of the interview and review process, when considered in total have significantly disadvantaged the class and constitute a violation of the Ex Post Facto Clause,” id. at *23.
More specifically, the district court found that the pre-1992, or “old,” Board had treated inmates serving parolable life sentences and inmates serving long indeterminate sentences the same to ensure that inmates who had committed similar crimes—and who had been similarly rehabilitated—would serve similar time in prison. Id. at *13-14. The new Board, by contrast, took the position that “life means life” and, accordingly, treated inmates sentenced to parolable life differently than inmates serving long indeterminate sentences. Id. at *14-16. In addition, members of the new Board focused on the seriousness of an inmate’s offense as the most relevant factor in deciding whether to grant parole. Id. at *16-17. The district court found that this “myopic view of the relevant factors” led to the “erosion of the substantive standard” for granting parole. Id. Furthermore, the district court found that, in practice, the new Board does not review the file of an inmate sentenced to parolable life any more frequently than every five years,

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no matter the inmate’s individual circumstances. Id. at *17-18. The district court also determined that “the value of the [in-person] interview,” all but eliminated from the parole process in 1999, “cannot be overstated.” Id. at *19.
The district court relied in large part on statistical evidence in concluding that, as a result of the 1992 and 1999 changes to the parole laws, plaintiffs faced a sufficient risk of increased punishment to prevail on their ex post facto claim. Id. at *19-23. According to the district court, “parole rates from 1942 until 1984 show that [inmates sentenced to parolable life] were paroled at a steady 5-15 percent rate, with the average time served steady at 15-18 years.” Id. at *21 (internal quotation marks omitted). The district court reported that the new Board’s parole rate was, by contrast, just 0.15%; meanwhile, the “average number of years served climbed from 19.2 during 1995-99, to 23.2 during 2000-04.” Id. The district court assigned credit for the “pipeline paroles”—paroles of inmates whom the old Board, near the end of its tenure, moved forward to public hearings but for whom the decision whether to grant parole ultimately rested with the new Board—to the old Board rather than the new Board. Id. at *20-21. As a result, the district court refused to credit the new Board with any paroles during the transition period from 1992 to 1994; thus, for purposes of the district court’s analysis, the new Board effectively began its tenure in 1995. Id. at *21. The district court also declined to consider the new Board’s post-2004 numbers, because plaintiffs filed their class action complaint in April 2005. Id.
Importantly, the district court excused the marked decrease in the old Board’s parole rates from 1985 to 1994 because the decrease was not due to a change in the parole laws. Id. at *23. Rather, the decrease was attributable to a number of other causes, including (1) the governor’s nine-time invocation of the Prison Overcrowding Emergency Powers Act, which, with each invocation, moved forward by ninety days the release dates for inmates with minimum sentences, thereby increasing the number of inmates eligible for parole and “‘bur[ying]’ the Board with new cases”; (2) an overall increase in the prison population and, in particular, an increase in the number of inmates sentenced to parolable life in the mid-1970s (these inmates were just coming within the

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Board’s jurisdiction by the mid-1980s); and (3) a 1982 statutory amendment that required more frequent parole interviews for inmates sentenced to parolable life—as of 1982, these inmates had a 4+2+2 interview structure. Id. at *21-23.
After granting plaintiffs’ motion for summary judgment, the district court solicited proposed remedial orders from both parties. On February 7, 2008, the district court entered a declaratory judgment “holding that the defendants have been and remain in violation of the ex post facto clause of the U.S. Constitution.” The district court also entered a permanent injunction with terms the court deemed the least restrictive it could impose to cure the Board’s ex post facto violation. The district court’s injunctive order required the Board to compile a list of the longest-serving first quartile of the plaintiff class “as soon as practicable” and to interview those plaintiffs within five months of the entry of the order. The injunctive order further instructed the Board to “apply the parole laws, policies, procedures, and standards that were applied by the old parole board in the decades before 1992,” to “the extent possible,” and listed a number of sources the Board should consult for guidance. The district court ordered the Board to report back with the results of the first-quartile interviews within six months and to have compiled a list of second-quartile plaintiffs by that time.
The Board has since submitted two progress reports for the district court’s review. On November 3, 2009, in response to the Board’s second progress report, the district court supplemented its original injunctive order by imposing additional reporting requirements. The district court’s supplemental order also required the Board to make an inmate’s complete psychological records available for review online by all Board members before they vote whether to move the inmate forward to a public hearing.
Subsequent to the entry of the initial remedial order, the district court awarded plaintiffs’ costs and attorney fees. The Board now appeals the district court’s grant of plaintiffs’ motion for summary judgment, entry of the declaratory judgment and permanent injunction, and award of plaintiffs’ costs and attorney fees. Plaintiffs crossappeal the dismissal of their due process claim.

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After filing notice of their appeal, the Board twice moved this court to stay the original injunctive order and all further district court proceedings during the pendency of the appeal. A motions panel of this court denied both motions. Following oral argument, however, and in response to the district court’s November 3, 2009, supplemental order, the Board again moved to stay the original injunctive order and all further district court proceedings. This panel granted the Board’s motion with respect to the November 3, 2009, supplemental order but denied the Board’s motion in all other respects. Thus the permanent injunction has remained in effect and the Board has released a number of plaintiffs on parole during the pendency of this appeal.2 Indeed, as of November 2009, three of four quartiles of the plaintiff class had been or were currently going through the review process.
II.
A. Ex Post Facto Claim
Plaintiffs have not shown that they face a significant risk of increased punishment as a result of the challenged statutory changes to Michigan’s parole process rather than as a result of the new Board’s legitimate exercise of discretion in a way that results in fewer paroles. In any event, we are not confident that plaintiffs have even shown a significant risk of increased punishment under the post-1992 parole regime. Accordingly, plaintiffs were not entitled to judgment as a matter of law.
The Ex Post Facto Clause is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995) (citations omitted). When an inmate challenges an allegedly ex post facto parole law, this court “must examine the relevant law in effect at the time [the inmate’s] offense was committed and compare it with the retroactively-applied version of the law.” Shabazz, 123 F.3d at 912. The “focus of the ex post facto inquiry

2At oral argument, the Board’s counsel stated unequivocally on behalf of the state defendants that if this court were to reverse the district court’s grant of plaintiffs’ motion for summary judgment, plaintiffs paroled pursuant to the district court’s original injunctive order would not have their parole revoked solely on the basis of this court’s reversal.

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is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ . . . but on whether [the] change . . . increases the penalty by which a crime is punishable.” Morales, 514 U.S. at 506 n.3. Where a legislative change is argued to increase the risk of affecting a prisoner’s punishment, the Supreme Court has made clear that the appropriate inquiry is whether the retroactively-applied version of the parole law “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509. When the retroactively-applied version of the law “does not by its own terms show a significant risk” of increased punishment, the inmate bringing the ex post facto challenge “must demonstrate, by evidence drawn from the [law]’s practical implementation by the agency charged with exercising discretion, that [the law’s] retroactive application will result in a longer period of incarceration than under the earlier” version of the law. Garner v. Jones, 529 U.S. 244, 255 (2000).
To the extent that plaintiffs have shown they face a significant risk of increased punishment under the new parole regime, plaintiffs have not shown that this risk is attributable to statutory changes to the parole process and not to a change in the way the Board legitimately exercises its discretion. The decision whether to grant parole has always been within the Board’s discretion. See Mich. Comp. Laws § 791.234(11). Therefore, from the time plaintiffs committed their offenses, there was always the possibility the Board would exercise its discretion in a way that would result in fewer paroles and longer prison terms. As the Michigan Court of Appeals stated in People v. Hill, 705 N.W.2d 139, 143 (Mich. Ct. App. 2005), “[t]here was always a ‘significant risk’ that [plaintiffs] would be made to serve [their] life sentence[s].”
Throughout the time period relevant to this suit, the statutory scope of the Board’s range of discretion has remained the same. Parole is within the Board’s discretion, but a “prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that the prisoner will not become a menace to society or to the public safety.” Mich. Comp. Laws § 791.233(1)(a). Despite the fact that the scope of the Board’s discretion has remained the same, plaintiffs argue that, in

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practice, the new Board applied a harsher standard than the old Board when deciding whether to grant parole. However, plaintiffs’ contentions do not make out an ex post facto violation.
If the Parole Board decided within its discretion to get tougher, that could hardly amount to an ex post facto violation as long as it was within the Parole Board’s discretion to get tougher. This would be true even if the tougher attitude resulted from a change in personnel on the Board, even if the Board members independently developed a tougher attitude, and even if the Board members partook of a general public attitude that parole decisions should be tougher. By analogy, there is no ex post facto violation if a lenient judge is replaced by a strict one in a particular jurisdiction, such that a certain crime, say shoplifting or drunk driving, now regularly gets a sentence well above what was previously the case. Without some legal change other than a difference in the proper exercise of discretion, the shoplifter or the drunk driver simply had no ex post facto-protected interest in the more lenient sentence, as long as the more severe sentence was within the range available to the sentencing judge at the time of the crime.
Plaintiffs’ arguments that the new Board members acted in a tougher exercise of their retained discretion thus cut against finding an ex post facto violation. Plaintiffs point to evidence that changes to the parole laws in 1992 were motivated by the desire to increase public safety by granting fewer paroles. Indeed, a report issued by the Michigan Department of Corrections in 1997 suggests that, when the Legislature “overhaul[ed]” the Board and the parole process itself in 1992, the “intent . . . was to make Michigan’s communities safer by making more criminals serve more time and keeping many more locked up for as long as possible.” Mich. Dep’t of Corr., Five Years After: An Analysis of the Michigan Parole Board Since 1992, at 2 (1997). The report also asserts that one of “the most important differences since the overhaul is a Parole Board that is much less willing to release criminals who complete their minimum sentences—and much less willing to release criminals at all, forcing many to serve their maximum sentences.” Id.

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Plaintiffs contend that the new Board, which by statute must include at least four members with no experience in the Department of Corrections, Mich. Comp. Laws § 791.231a(2), placed greater emphasis on an inmate’s underlying offense and less emphasis on the inmate’s rehabilitation when deciding whether to grant parole. Plaintiffs submitted the sworn statements of several members of the new Board to support this contention. For example, Gary Gabry, a former county prosecutor who chaired the new Board from 1992 to 1996, recalls:
I often found myself trying to get the focus off the crime and onto the candidate’s recent record in prison. I pushed the board to focus more on the prisoner’s behavior, adjustment and future plans and not primarily the sentencing offense, but it nearly always fell on deaf ears with at least five members of the board.
Gabry believes that after the addition of “school teachers and other professionals” to the Board, “it was just much harder for a prisoner to get out on parole.” In Gabry’s opinion, “the drop-off in . . . paroles . . . was largely a reflection of the new type of people who were appointed to the parole board in 1992.”
Plaintiffs argue that the new Board’s low rates of parole “can only be attributed to its ‘life means life’ policy.” As evidence of the existence of this policy, plaintiffs quote public statements by and on behalf of the new Board. For example, when Stephen Marschke, who served as a member (1992-1996) and then as chair (1996-2002) of the new Board, submitted written testimony in support of proposed changes to the parole laws in 1999, he stated:
It has been a long[-]standing philosophy of the Michigan Parole Board that a life sentence means just that—life in prison. . . . It is the parole board’s belief that something exceptional must occur which would cause the parole board to request the sentencing judge or Governor to set aside a life sentence. Good behavior is expected and is not in and of itself grounds for parole.
Marschke Test. in Support of Proposed Legis. ¶ 2.

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At bottom, plaintiffs’ evidence shows that the new Board exercised its discretion rigorously, resulting in fewer paroles than under the old Board. As the United States Supreme Court has explained in the clearest terms,
[T]o the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors, will inform parole decisions.
Garner, 529 U.S. at 253 (citations omitted). The most that can be said here is that, based on experience, the new Board’s discretion was informed and then exercised in a way that made it more difficult for plaintiffs to secure release on parole.
“[T]he Ex Post Facto Clause gives [an inmate] no cause to complain that the Board in place at the time of his offense has been replaced by a new, tough-on-crime Board that is much more parsimonious with parole . . . .” Id. at 259 (Scalia, J., concurring). Plaintiffs conceded at oral argument that there would be no ex post facto violation if the new Board had gradually changed the way it exercises discretion or if Board members had been replaced one by one over time. There is, however, no reason to distinguish between gradual change and wholesale change for purposes of this ex post facto analysis. Nor is there a constitutional requirement that changes in the exercise of discretion be made over time. Thus plaintiffs’ allegations pertaining to the composition of the new Board do not establish an ex post facto violation.
With respect to plaintiffs’ loss of the right to appeal a denial of parole, any harm resulting from this change to the law is too speculative to contribute to the alleged risk of increased punishment in any significant way. From 1995 to 1999, inmates filed 3,800 appeals from Board decisions, but only about four percent of those cases were remanded to the Board for reconsideration, and only about six-tenths of a percent ultimately resulted in parole. Jackson v. Jamrog, 411 F.3d 615, 620 (6th Cir. 2005) (quoting House

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Legislative Analysis, First Analysis, H.B. 4624 at 9 (Mich. Mar. 21, 2000)). As the Board points out, appeals by inmates sentenced to parolable life likely represented only a fraction of those percentages. Plaintiffs counter that the right to appeal is “important” because “just one successful case can change the law for all prisoners.” Although plaintiffs’ statement is arguably true, it does not change the facts. Because the loss of the right to appeal “creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment” attached to plaintiffs’ crimes, Morales, 514 U.S. at 509, this change in the law does not contribute in a significant way to the risk of increased punishment alleged as the basis for the ex post facto claim.
Plaintiffs have not shown that the remainder of the statutory and regulatory changes to the parole process—i.e., the change to a 10+5+5 interview structure, the substitution of paper reviews for in-person interviews, and the loss of written reasons to explain a statement of “no interest” in moving forward with parole—as practically implemented and applied retroactively, create a sufficient risk of increased punishment to prevail on their ex post facto claim. First, this court decided previously that the change from a 7+3+3 or a 4+2+2 interview structure to a 10+5+5 interview structure does not on its face create a sufficient risk of increased punishment to establish an ex post facto violation. See Shabazz, 123 F.3d at 914-15. Second, and more clearly dispositive, to the extent that plaintiffs have shown a decrease in the average annual rate of parole or an increase in the average years served at parole since the new Board took office, this court cannot isolate the cause of those effects on the record in this case. In other words, there is no way for this court to determine whether any decrease in the parole rate or any increase in the average years served is due to the challenged statutory changes to the parole process or to the Board’s stricter exercise of its discretion. Indeed, plaintiffs’ ex post facto claim is explicitly premised on the cumulative effect of changes to parole policies and procedures in 1992 and 1999—including changes in the way Board members exercise their discretion. It is not enough for plaintiffs to show that “a legislative change produces some ambiguous sort of ‘disadvantage.’” Morales, 514 U.S. at 506 n.3. And plaintiffs cannot distinguish the effect of the statutory changes to the

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interview process from the effect of the Board’s more rigorous, yet still legitimate, exercise of its discretion. Therefore, plaintiffs were not entitled to summary judgment on their ex post facto claim.
In any event, we are not even confident the statistics show a significant risk of increased punishment under the post-1992 parole laws as compared to the laws in effect when plaintiffs committed their offenses. As a preliminary matter, the parties disagree as to how this court should measure the effect of changes to the parole laws. Plaintiffs assert that the average annual rate of parole is the relevant measure, and they compare the new Board’s rates to the old Board’s rates in an effort to show that the statutory changes created a significant risk of increased punishment. In contrast to plaintiffs, the Board argues that the annual number of paroles is the proper measure and that plaintiffs’ ex post facto claim is unfounded because the new Board’s number of paroles (47) for the ten-year period from 1995 to 2004 was greater than the old Board’s number of paroles (28) for the ten-year period from 1983 to 1992.
In fact, the data suggest that the real difference between the tenures of the two Boards was in the number of inmates sentenced to parolable life who had served ten years and could thus be considered for parole. This number provides the denominator for plaintiffs’ parole rate calculations. According to the data plaintiffs provided in their brief on appeal, see Pls.’ Br. 35, 41-42,3 this number has increased significantly since the early 1980s:

3The support for these numbers in the record appears to come from Pls.’ Mot. for Summ. J. Ex. 20, Attach. to Decl. at 3 and Pls.’ Mot. for Summ. J. Ex. 52 at 9.
Both in the district court and on appeal, plaintiffs presented their data as five-year averages. Plaintiffs claim that “[f]ive-year averages give a more accurate picture, offsetting year-to-year fluctuations.” Pls.’ Br. 35. Although we make no judgment with respect to this assertion, because our analysis is based on the data plaintiffs provided in their brief, and for which we find support in the record, we also analyze the data in five-year intervals. The interval spanning the early 1990s is shortened to exclude data from 1993 to 1994, during the transition from the old Board to the new Board.

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Date/Period 2000-04

Average Annual Number of Inmates Sentenced to Parolable Life and Subject to Consideration for Parole
14544

New Board 1995-99

1091

1990-92

740

1985-89

474

1980-84

141.0

1975-79

63.2

1970-74

72.8

1965-69

84.6

1960-64

125.4

1955-59

169.0

1950-54

184.2

1945-49

221.0

Old Board 1942-44

199.7

Despite the increasing number of inmates sentenced to parolable life who could be paroled, according to the figures plaintiffs provided in their brief, Pls.’ Br. 41-42,5 the new Board’s parole rates did not differ significantly from the old Board’s rates during the final years of its tenure:

4Our own calculations, based on the record, suggest that this number should be 1498.8. See Pls.’ Mot. for Summ. J. Ex. 52 at 9.
5The support for these numbers in the record appears to come from Pls.’ Mot. for Summ. J. Ex. 52 at 9 and Defs.’ Mot. for Summ. J. Ex. 3 at 5-8.

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Date/Period Average Annual Average Years Rate of Parole Served at Parole

2000-04

0.15%

23.2

New Board

1995-99 1990-92

0.20% 0.18%6

19.2 unknown

Old Board 1985-89

0.6%

15.1

These data suggest that the practical implementation of changes to the parole laws post1992 did not result in a parole rate significantly lower than the rate that had resulted from the practical implementation of the old parole laws by the mid-1980s. In other words, these numbers indicate that plaintiffs did not face a significant risk of increased punishment under the new parole laws as compared to the old parole laws, as those laws were implemented and applied in practice.
Plaintiffs provide a number of excuses for the old Board’s low rates during the last seven years of its tenure, but do not acknowledge that the new Board inherited some of the same problems that had plagued the old Board. Plaintiffs explain the old Board’s low rates by pointing to an overall increase in the prison population as a result of tougher criminal laws, reasoning that “[a]s the prison population mushroomed, the parole board began to fall behind in its work.” Plaintiffs also attribute the old Board’s low parole rates to (1) the governor’s repeated invocation of the Prison Overcrowding Emergency

6Plaintiffs assert that the average annual rate of parole from 1990 to 1992 was 1.9%. Pls.’ Br. 41. However, to arrive at this number, plaintiffs included in their calculations—as actual paroles—thirtynine inmates sentenced to parolable life whom the old Board, near the end of its tenure, moved forward to public hearings and who were not blocked by judicial veto. Id. at 39-40. The decision whether to parole these inmates ultimately rested with the new Board after it took office. Indeed, the new Board paroled, at most, only fifteen of these thirty-nine inmates in 1993 and 1994. Defs.’ Mot. for Summ. J. Ex. 3 at 6. Plaintiffs argue that the old Board should receive credit for paroling the thirty-nine inmates, even though not all were actually paroled, and even though none were actually paroled by the old Board, because “the old board rarely denied parole after moving forward on a case.” Pls.’ Br. at 40. Thus “all or nearly all would have been paroled if the old board had not been removed.” Id. (emphasis added).
Although the parties dispute whether the old Board or the new Board should receive credit for inmates paroled in 1993 and 1994, we need not decide the issue. This table, like the previous table, excludes data from these transition years.
We calculated 0.18% as the average annual rate of parole from 1990 to 1992 by summing the number of inmates sentenced to parolable life who were actually paroled from 1990 to 1992—four, Defs.’ Mot. for Summ. J. Ex. 3 at 6—and then dividing by the number of years (three) to get the average annual number of paroles (1.33). We then divided that number by the average annual number of inmates sentenced to parolable life who could be considered for parole—740, according to plaintiffs’ brief, Pls.’ Br. 41; see Pls.’ Mot. for Summ. J. Ex. 52 at 9.

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Powers Act, which, with each invocation, moved up by ninety days the release dates for inmates sentenced to a minimum term of years, thereby increasing the number of possible paroles (i.e., increasing the denominator), see Oakland County Prosecuting Attorney v. Mich. Dep’t of Corr., 305 N.W.2d 515, 517 & n.6 (Mich. 1981); (2) more frequent interviews with inmates sentenced to parolable life under the 4+2+2 interview structure after 1982; and (3) an increase in the number of inmates sentenced to parolable life in the mid-1970s who were just becoming eligible for parole in the mid-1980s but who, according to plaintiffs, were not yet ready for parole. William Hudson, who served as a member (1980-1985) and then as chair (1985-1991) of the old Board, remembers:
It is fair to say that the board was overwhelmed by the numbers at some point, and that we had to put our energy and resources into interviewing prisoners who were most likely to be paroled. Lifer interviews got pushed back, and even when we did lifer interviews, it was more to comply with the law, and not with an eye to moving anyone forward to parole, because we were so far behind in our work. In the best of circumstances we kept just marginally abreast of the regular parole cases, and no doubt in the mid-to-late 1980s and early 1990s the lifers suffered for it.
Although the new Board had the benefit of three additional members and a 10+5+5 interview structure, when it took office it faced the same overwhelming numbers the old Board had faced near the end of its tenure. The new Board did not enter the environment that had prevailed from the 1940s to the 1970s, when the average annual number of inmates sentenced to parolable life who were eligible for parole rarely exceeded 200 and annual parole rates were relatively high. Rather, the new Board stepped into the environment inhabited by the old Board in the mid-1980s and early 1990s, by which time the old Board’s parole rates had decreased significantly.
Plaintiffs have not shown that any decrease in the parole rate or any increase in the average years served under the new Board was not attributable to the sheer number of inmates within the new Board’s jurisdiction. And, again, the new Board’s parole rates did not differ significantly from the old Board’s rates during the final years of its tenure. This suggests that plaintiffs did not actually face a significant risk of increased

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punishment as a result of the new Board’s implementation of post-1992 changes to the parole laws.
While our rejection of plaintiffs’ ex post facto claim relies primarily on the impossibility of distinguishing the effect of the Board’s legitimate exercise of discretion from the effect of statutory changes to the parole process on the record before this court, our conclusion is bolstered by some doubt, outlined above, that the new Board’s parole rates were in fact significantly lower than the old Board’s rates during its final years in office.
We reverse the district court’s grant of summary judgment in plaintiffs’ favor and vacate the permanent injunction. Because plaintiffs are no longer the prevailing party, we also reverse the district court’s award of plaintiffs’ costs and attorney fees.
B. Due Process Claim
Plaintiffs’ cross-appeal in this case involves a due process claim raised in the complaint as an alternative to the ex post facto claim. The due process claim was dismissed at an early point in the litigation, primarily on the ground that Michigan prisoners have no constitutionally protected liberty interest in parole. The dismissal was proper, although the reasons for that conclusion depend on which of several theories serves as the basis for the due process claim.
The due process claim could be taken as a challenge to the sufficiency of parole procedures under general procedural due process principles applicable when liberty or property interests are deprived by the government. The complaint at ¶ 117 alleges that the changes to Michigan’s parole standards and policies “have deprived the plaintiffs of meaningful parole review.” A different type of due process theory would be analogous to ex post facto jurisprudence, protecting against punishment that could not have been anticipated when the crime was committed, but where ex post facto protections technically do not apply because the increased punishment does not result from a promulgated statute or regulation. A third theory would be that constitutional due

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process precludes the imposition of punishment greater than that actually imposed or contemplated by the sentencing judge.
The complaint does not state a claim under any of these theories. First, considered as a claim under general procedural due process principles with regard to the denial of parole, the district court properly dismissed on the ground that plaintiffs lack a constitutionally protected liberty interest in parole. See Foster-Bey, 2005 WL 2010181, at *6 (citing Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc)). Plaintiffs do not contest this, but rather argue that this is not the nature of their claim.
We do not read the complaint, however, as raising the second possible type of due process theory—that the Due Process Clause serves to extend ex post facto protections to situations where punishment is tougher than the perpetrator had reason to expect at the time of the crime, but not because of any promulgated law or regulation. The due process allegations in the complaint are not phrased in those terms. In any event, such a theory is not supported in the law. The district court, in denying the motion to dismiss the ex post facto claim, relied on the allegations that laws and regulations had caused the alleged changes in parole eligibility. The district court in doing so recognized that the ex post facto claim would otherwise have to be dismissed, relying on the following excerpt from our holding in Shabazz:
The Ex Post Facto Clause exists to protect citizens from retroactive increases in punishment. Changes in the administration and enforcement of statutes have little impact on these public expectations. . . . [T]he internal memoranda and policy directives . . . are not published in the Michigan Administrative Code or presented to the public for comment. Accordingly, the Parole Board and the MDOC’s policies and directives did not likely influence public expectations as to parole or create a reliance interest in the public on a particular parole hearing schedule.
123 F.3d at 916. If unpublished policy statements do not implicate ex post facto concerns in the parole context, it follows of necessity that pure changes in the exercise of discretion do not do so. Further, there is no apparent reason that such limits on the

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applicability of the Ex Post Facto Clause should not govern an application of the Due Process Clause that would protect the identical underlying interest.
The complaint appears instead to address a different concern—not that the perpetrator could not be aware of the severity of punishment for his act, but that a convicted defendant should not be punished more than the sentence provides. That this is the gravamen of plaintiffs’ due process claim is reflected in ¶ 115 of the complaint: “The changes to Michigan’s substantive parole standards and to the state’s parole laws and policies, described above, could not have been foreseen by the state court trial judges when they sentenced the plaintiffs.” This theory, however, is not supported in the law on the facts alleged in the complaint.
We assume for the sake of argument that the Due Process Clause would prohibit the imposition of punishment beyond limits explicitly imposed by the sentencing court, at least in the absence of some further infraction. But that is not what is alleged in the complaint. Instead, the complaint alleges the imposition of punishment within a range explicitly imposed, but beyond the subjective expectation of the sentencing judge. We are unaware of any authority that would make this a due process violation.
The closest cases cited by plaintiffs in this connection are different because they reflect post-sentencing changes that conflict with explicit limits in the judge’s sentence. The Seventh Circuit on direct appeal in United States v. Kerley, 838 F.2d 932, 941 (7th Cir. 1988), remanded for resentencing, noting that the trial judge “may have sentenced Kerley to a longer term in prison than the judge realized,” but the crux of the ruling was that the trial judge had incorrectly stated at the sentencing hearing that the time served could be less than one year, when the sentencing statute mandated a sentence of at least one year. In Culter v. United States, 241 F. Supp. 2d 19, 22 (D.D.C. 2003), the court relied on that fact that “the Court’s sentence was premised on an explicit understanding of where petitioner would serve her time.” Plaintiffs’ complaint does not allege that such explicit limits were contained in the sentences imposed on plaintiffs.
For these reasons, plaintiffs’ alternative due process claim fails, and the district court properly dismissed it.

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III.
For the foregoing reasons, the district court’s grant of plaintiffs’ motion for summary judgment is reversed and this case is remanded to the district court with instructions to grant the Board’s motion for summary judgment. Accordingly, we vacate the permanent injunction and reverse the award of plaintiffs’ costs and attorney fees. We also affirm the district court’s dismissal of plaintiffs’ due process claim.

 
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08-1371 Docke

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Court of Appeals Docket #: 08-1371

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Date Filed: 04/05/2005

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Date NOA Filed: 03/05/2008

Prior Cases: N

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08-1371 08-1371

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, [4038459-2];

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OPINION JUDGMENT : AFFIRMED

, REVERSED

, VACATED

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 Henderson v. Rubitschun
United States District Court for the Eastern District of Michigan, Northern Division June 5, 2007, Decided ; June 5, 2007, Filed Case Number 06-13274-BC

Reporter: 2007 U.S. Dist. LEXIS 40634; 2007 WL 1648932 STANLEY HENDERSON, Plaintiff, v. JOHN S. RUBITSCHUN, JAMES E. ATTERBERRY, MIGUEL BERRIOS, CHARLES BRADDOCK, GEORGE LELLIS, MARGIE R. McNUTT, JAMES QUINLAN, MARIANNE SAMPER, BARBARA SAMPSON, WILLIAM A. SLAUGHTER, Defendants.
Prior History: Foster-Bey v. Rubitschun, 2005 U.S. Dist. LEXIS 40869 ( E.D. Mich., Aug. 18, 2005)
Counsel: [*1] Stanley Henderson, Plaintiff, Pro se, Lapeer, MI.
For John S Rubitschun, James E. Atterberry, Miguel Berrios, Charles Braddock, George Lellis, Margie R. McNutt, James Quinlan, Marianne Samper, Barbara Sampson, William A. Slaughter, Defendants: Christine M. Campbell, LEAD ATTORNEY, MI Dept of Atty Gen, Corrections Division, Lansing, MI.
Judges: Honorable THOMAS L. LUDINGTON, United States District Judge.
Opinion by: THOMAS L. LUDINGTON

The parties do not object to the facts as recited by the magistrate judge. The Court finds that they faithfully track the record and adopts them here. The following is a summary.
The plaintiff commenced this action on July 20, 2006. At that time, the plaintiff was in the custody of the Michigan Department of Corrections, housed at the Charles E. Egeler Reception and Guidance Center in Jackson, Michigan, serving a life sentence for armed robbery of which he was convicted in 1981. The plaintiff alleges that he is a member of the class action noted above, but seeks to proceed in this case "to allow him to present his individual issue, and not be excluded from the Class Certification." R&R at 2; Compl. at PP 17-18.
According to the complaint, the plaintiff received a "parole lifer interview," but was denied parole consideration, which was to be reviewed again in five years, a "five year continuation." He asserts that his file was reviewed in 1999 and again he was given another five-year continuation. In February 2004, apparently [*3] a parole board member interviewed the plaintiff, but the same result obtained, another five-year continuation. The plaintiff will next be considered for parole in February 2009.

Opinion

ORDER ADOPTING MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION, OVERRULING

PLAINTIFF'S

OBJECTIONS,

GRANTING

DEFENDANTS' MOTION TO DISMISS, AND

DISMISSING CASE

This matter is before the Court on plaintiff Stanley Henderson's objections to a report issued by Magistrate Judge Charles E. Binder on February 27, 2007 recommending that the defendants' motion to dismiss be granted and the case be dismissed. After a de novo review of the record in light of the plaintiff's objections, the Court, consistent with Magistrate Judge Binder, can discern no basis for the instant case to proceed independent of the prisoner class action, Foster-bey v. Rubitschun, Case No 05-71318, pending before United States District Judge Nancy Edmunds. The Court therefore [*2] will adopt the magistrate judge's report and recommendation, overrule the plaintiff's objections, grant the defendants' motion to dismiss, and dismiss the case.

The plaintiff claims in his papers that the actions described above violate the parole board's own policies and long-term release guidelines in addition to the Constitution's ex-post facto prohibition. He states that he has suffered irreparable harm as a result and seeks a declaratory judgment that the board has violated its own guidelines as well as an injunction prohibiting the defendants from using post-1992 release guideline policies and an order directing the defendants to conduct a new parole hearing for him based on pre-1992 guidelines.
Thereafter, the defendants filed a motion to dismiss asserting that the plaintiff may not, as a member of a certified class, file a separate lawsuit seeking individual relief. As noted, the magistrate judge issued a report and recommendation on February 27, 2007, in which he agreed with the defendants. The magistrate judge reasoned as follows:
In Groseclose v. Dutton, 829 F.2d 581 (6th Cir. 1987), the court faced a situation where a prisoner had [*4] filed an individual action alleging the same subject matter as that of a pending class action. The court concluded:

2007 U.S. Dist. LEXIS 40634, *4

Page 2 of 2

In Goff v. Menke, 672 F.2d 702 (8th Cir.

exactly the concerns highlighted by the courts in

1982), the Court of Appeals for the Eighth

Groseclose and Arnold.R&R at 3-4.

Circuit vacated a district court order where

the district judge had granted relief in a

In his objections, the plaintiff argues that he merely wants his

prison conditions case while a class action

case consolidated with the class action pending before Judge

covering the whole prison system was pending on the docket of another district

Edmunds. In fact, he states he filed the action before Judge Edmunds, "and someone else took it upon him/herself to

judge. The Court of Appeals remanded the

transfer Plaintiff's complaint to this Court. Plaintiff was never

case and ordered that it be consolidated with the class action.

informed why his [*6] complaint was transferred from the Southern Division." Pl.'s Objs at 2.

We agree with the logic of the Eighth Circuit decision in Goff. To allow two or more district judges to issue directions to prison officials simultaneously would be to create what the Goff court aptly characterized as an "inefficient" situation, fraught with potential for inconsistency, confusion, and unnecessary expense. 672 F.2d at 705.
Groseclose, 829 F.2d at 584. See also Arnold v. Ghee, 12 Fed. Appx. 313 (6th Cir. 2001) (citing Groseclose and dismissing the prisoner-plaintiff's claims relating to enforcement of a consent decree and stating that "[plaintiff] should seek relief [*5] through the [class action] case so that enforcement of the consent decree may be addressed by one district court judge.")

The plaintiff misunderstands both Groseclose and the nature of filings in the Eastern District. As to the former, in that case, the plaintiff was not already a member of a certified class. Here, the plaintiff is a member of the class. Moreover, since the claims stated in the plaintiff's complaint in this action are identical to those claims in the class action, consolidation would serve no purpose. Theoretically, the plaintiff might seek relief by appropriate motion practice in the class action suit, but he plainly may not proceed individually in this case.
As to the latter, the plaintiff may not select an individual judge to hear his case. He must file the appropriate paperwork with the Clerk of Court and from there, the case is randomly assigned to a presiding judge as directed by the Local Rules. As a result, there was no malfeasance or clerical error when the matter came to this Court. The case is properly before this Court, and the Court concludes the plaintiff's objections lack merit.

I suggest that the instant case presents the Court with facts identical to those of Groseclose. Plaintiff in this case acknowledges that he is a member of the Fosterbey class. He both seeks relief identical to that of the class to which he belongs and raises legal issues identical to those before the district judge in Fosterbey. As a result, I therefore suggest that Plaintiff be required to seek the relief he requests through the class action of which he is already a member.
Although argued by both parties, I further suggest that the court refrain from consideration of the merits, since to do so, I suggest, would bring about

Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 30] is ADOPTED [*7] , the plaintiff's objections [dkt # 31] are overruled, the defendants' motion to dismiss [dkt # 26] is GRANTED, and the case is DISMISSED WITH PREJUDICE.
s/ THOMAS L. LUDINGTON
United States District Judge
Dated: June 5, 2007