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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY and KEITH MAXEY,
Plaintiffs, v
JENNIFER GRANHOLM, in her Official Capacity as Governor of the State of Michigan, PATRICIA CARUSO, in her Official Capacity as Director, Michigan Department of Corrections, BARBARA SAMPSON, in her Official Capacity as Chair, Michigan Parole Board, jointly and severally,
Defendants.

File No. 10-cvHON.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
NOW COME Plaintiffs, by and through their counsel, and for their Complaint for Declaratory and Injunctive Relief, against the Defendants, and each of them, state as follows:
INTRODUCTION 1. This action for declaratory and injunctive relief is brought under 42 U.S.C. § 1983. Plaintiffs are individuals who were charged and tried as adults for crimes committed when they were under the age of eighteen, punished by a mandatory adult sentence of life imprisonment, and are currently being detained without a meaningful opportunity for release.

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2. Juvenile offenders, as compared to adults, have lessened culpability and are less deserving of the harshest punishment available. They have a lack of maturity and an underdeveloped sense of responsibility, making them more vulnerable or susceptible to negative influences and outside pressures.
3. Since abolishing the death penalty in 1846 for crimes involving homicides, the harshest penalty the State of Michigan can impose on an adult convicted of any such crime, or series of crimes, is a life sentence without the possibility of parole.
4. Under the current scheme in Michigan, juveniles may be charged, tried and sentenced as if they were adults without consideration of their juvenile status, including their reduced culpability and unique capacity for change and rehabilitation as compared to adults.
5. Under Michigan law, seventeen-year-olds are treated as adults in all criminal proceedings and juveniles aged fourteen and up are automatically charged as adults for homicide offenses, absent the prosecutor filing a petition in juvenile court.
6. Michigan categorizes its homicide offenses as either first or second degree offenses. The former includes premeditated murder, murder of a peace officer, felony murder and aiding and abetting a murder. M.C.L. 750.316; M.C.L. 767.39. All other homicide offenses are categorized as second degree murder. M.C.L. 750.317.
7. Both first degree and second degree offenses can result in a sentence of life imprisonment. However, the sentence for a conviction under M.C.L. 750.316 is mandatory and Michigan courts have no discretion to consider the age of juvenile offenders who are charged and tried as adults, as a mitigating factor in their sentencing. M.C.L. 750.316.
8. Moreover, while a conviction for both first degree murder – M.C.L. 750.316 – and second degree murder – M.C.L. 750.317 – carries a maximum sentence of life
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imprisonment, the Michigan Parole Board does not have jurisdiction over the mandatory life sentences given to juveniles convicted under M.C.L. 750.316.
9. Plaintiffs were all charged and convicted under M.C.L. 750.316. 10. Plaintiffs seek a declaration that Michigan laws, policies and practices, including M.C.L 791.234, insofar as it excludes Plaintiffs from the jurisdiction of the Michigan Parole Board and thereby denies them a meaningful opportunity for release, violates the Eighth and Fourteenth Amendments of the United States Constitution and customary international law. 11. Plaintiffs do not challenge their judgments of conviction and do not seek to invalidate their life sentences; rather Plaintiffs seek orders that the Michigan Department of Corrections afford them, as persons sentenced to life imprisonment for offenses committed before they were eighteen years old, a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation.
JURISDICTION 12. 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. § 1343(a), which authorizes federal courts to hear civil rights cases, and 28 U.S.C. § 2201, the Declaratory Judgment Act.
VENUE 13. Venue is proper in this Court, as the Defendants conduct their business across the state, including in the Eastern District of Michigan, and some of the named Plaintiffs are incarcerated in the Eastern District of Michigan.
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PARTIES Plaintiffs 14. Plaintiff Henry Hill was charged, convicted and sentenced as an adult to a life sentence in Saginaw County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Hill is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Henry has served twenty-eight years in adult prison. 15. Plaintiff Jemal Tipton was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a seventeen-year-old minor. Plaintiff Tipton is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Jemal has served twenty-three years in prison. 16. Plaintiff Damion Todd was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a seventeen-year-old minor. Plaintiff Todd is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Damion has served twenty-four years in adult prison. 17. Plaintiff Bobby Hines was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a fifteen-year-old minor. Plaintiff Hines is currently in the custody of the Michigan Department of Corrections. He is
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imprisoned at the Earnest C. Brooks Correctional Facility in Muskegon County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Bobby has served twenty-one years in adult prison.
18. Plaintiff Kevin Boyd was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Boyd is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Kevin has served fourteen years in adult prison.
19. Plaintiff Bosie Smith, was charged, convicted and sentenced as an adult to a life sentence in Washtenaw County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Smith is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Chippewa Correctional Facility in Chippewa County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Bosie has served eighteen years in adult prison.
20. Plaintiff Jennifer Pruitt was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when she was a sixteen-year-old minor. Plaintiff Pruitt is currently in the custody of the Michigan Department of Corrections. She is imprisoned at the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence. Jennifer has served seventeen years in adult prison.
21. Plaintiff Matthew Bentley was charged, convicted and sentenced as an adult to a life sentence in Huron County, Michigan, for acts committed when he was a fourteen-year-old
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minor. Plaintiff Bentley is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Richard A. Handlon Correctional Facility in Ionia County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Matthew has served twelve years in adult prison.
22. Plaintiff Keith Maxey was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Maxey is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Keith has served two years in adult prison.
Defendants 23. Defendant Jennifer Granholm is the Governor of the State of Michigan. Defendant Granholm is invested with executive power pursuant to Art. V § 1 of the Michigan Constitution and is responsible for ensuring compliance with the laws of the State of Michigan. Defendant Granholm resides in Ingham County, Michigan. Governor Granholm is sued in her official capacity. 24. Defendant Patricia L. Caruso is the Director of the Michigan Department of Corrections. Defendant Caruso has authority over the Michigan Parole Board pursuant to M.C.L. 791.231a, which determines which Michigan prisoners are eligible for parole. Defendant Caruso is sued in her official capacity. 25. Barbara Sampson is the Chair of the Michigan Parole Board. Under M.C.L. 791.234, the Parole Board determines which prisoners, under their jurisdiction, to parole. Defendant Sampson is sued in her official capacity.
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BACKGROUND FACTUAL ALLEGATIONS Michigan’s Sentencing Framework
26. Since abolishing capital punishment, the harshest punishment the State of Michigan can impose for any crime or series of crimes is a life sentence without the possibility of parole.
27. Michigan’s Penal Code sets forth the punishments for crimes categorized as first degree homicides, which include premeditated murder, M.C.L. 750.316(1) (a); felony murder, M.C.L. 750.316(1)(b); murder of a peace officer, M.C.L. 750.316(1)(c); and second degree murder, M.C.L. 750.317.
28. Michigan’s Code of Criminal Procedure provides that a person who aids or abets a murder is punishable as if that person had directly committed the offense. M.C.L. 767.39.
29. The punishment for first degree murder, whether it be premeditated, felony murder or aiding and abetting a murder, is mandatory imprisonment for life. M.C.L. 750.316(1). The punishment for second degree murder is imprisonment for life, or any term of years, at the court’s discretion. M.C.L. 750.317.
30. Each of the Plaintiffs’ judgments of conviction and sentence states that the Plaintiff was sentenced to imprisonment for life for a conviction under M.C.L. 750.316.
31. Michigan law grants the Department of Corrections’ Parole Board the authority to release individuals sentenced to life if a prisoner meets certain specified criteria. M.C.L. 791.234.
32. Since 2008, the Michigan Parole Board has had the authority to grant release to all individuals sentenced to life imprisonment except for individuals serving a life sentence for a conviction under M.C.L. 750.316.
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33. Plaintiffs, who are all serving life sentences for convictions under M.C.L. 750.316 are excluded from the Parole Board’s authority and jurisdiction. M.C.L. 791.234(6). Punishment of Juveniles in Michigan
34. Seventeen-year-old minors are treated as adults in Michigan for criminal prosecution purposes. Michigan is one of only seven states that automatically subjects seventeen-year-olds to adult charges and punishment of a life sentence without parole for first degree murder.
35. Michigan’s laws and procedures for the trial and punishment of juveniles under the age of seventeen who committed homicide offenses have been amended on two occasions since 1980, resulting in three categories of Plaintiff juveniles depending on the date that they were sentenced.
36. Irrespective of the scheme for charging, trial, sentencing and process for homicide crimes, all of the Plaintiffs were given a punishment of life without adequate consideration of their juvenile status, are not subject to the jurisdiction of the Parole Board and have never otherwise been afforded a meaningful opportunity for release.
37. Prior to 1988, when a child under the age of seventeen committed a homicide offense, charges were automatically filed in juvenile court. If the juvenile was fifteen or sixteen-years-old, a prosecutor could request that the juvenile court waive its jurisdiction over the case and transfer it to the circuit court where the juvenile would be tried and sentenced as an adult. No child under fifteen years of age could be subject to this judicial waiver procedure. M.C.L. 712A.4 (1972).
38. Under this scheme, if a juvenile was transferred to adult court following a waiver hearing and convicted of a violation of M.C.L. 750.316 – including felony murder or aiding and
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abetting murder, the judge was required to sentence the juvenile to imprisonment for life in an adult prison.
39. Plaintiffs Henry Hill, Jemal Tipton and Damion Todd were all charged, tried and sentenced under this pre-1988 scheme. They were treated as adults at all stages in the process, sentenced to life imprisonment without consideration of their juvenile status. The Michigan Parole Board does not have jurisdiction to consider them for parole and none of them have been afforded a meaningful opportunity to obtain release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
40. In 1988, the juvenile statutes were amended, eliminating the requirement of judicial waiver hearings and rulings prior to charging juveniles as adults for criminal prosecution. This amendment permitted a prosecutor to bypass the juvenile court system entirely for certain specified crimes, including crimes under M.C.L. 750.316, and to file charges in adult court against children who were fifteen or sixteen years old. Juvenile court judges no longer had authority to individually evaluate a child and exercise discretion, and no waiver hearings were required prior to the charging and trial of a juvenile as an adult.
41. After 1988, children between the ages of fifteen and seventeen who were automatically charged, tried and convicted as an adult for homicide related offenses would then receive one of two limited punishment choices: the court could either sentence the child as an adult with a mandatory punishment of incarceration for life, or sentence the child as a juvenile, requiring release at age twenty-one.
42. Under this post-1988 scheme, Plaintiffs Bobby Hines, Kevin Boyd, Bosie Smith and Jennifer Pruitt were all automatically waived to adult court, charged as adults, tried and
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sentenced to life imprisonment. The Michigan Parole Board does not have jurisdiction to consider them for parole and none of them have been afforded a meaningful opportunity for release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
43. In 1996, the juvenile statutes were again amended to expand the automatic waiver of juveniles to adult court and to include fourteen-year-olds. Since 1996, and continuing to date, all juveniles between the ages of fourteen and eighteen are automatically charged and tried as adults for homicide offenses. M.C.L. 764.1(f)(1).
44. The 1996 amendments also took away the limited judicial discretion for sentencing juveniles tried as adults, making an adult sentence mandatory for all juveniles charged and tried as adults for certain crimes, including homicide offenses. M.C.L. 769.1(i).
45. Since 1996, all juveniles between the ages of fourteen and eighteen are automatically charged, tried and sentenced in the same way as adults for homicide offenses. The age of the individual cannot be considered during the charging, trial or sentencing phase. M.C.L. 769.1(1)(g) and (h).
46. Plaintiffs Matthew Bentley and Keith Maxey were sentenced to life imprisonment under this post-1996 scheme. There was never any consideration of their juvenile status. The Michigan Parole Board does not have jurisdiction to consider them for parole and neither has been afforded a meaningful opportunity for release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
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PLAINTIFFS’ INDIVIDUAL FACTUAL ALLEGATIONS Henry Hill
47. One evening in 1980, Henry Hill, aged sixteen, went with two of his cousins, Larnell Johnson and Dennis Johnson, to a park in Saginaw, Michigan. There they saw Anthony Thomas, a young man with whom Henry’s cousins had prior conflicts. Henry’s cousins shot at Anthony Thomas. Henry was reported to have been shooting into the air before he fled the park with his cousin Dennis. His other cousin, Larnell Johnson, remained, shooting and killing Anthony Thomas.
48. At the time of the incident, Henry had been attending Saginaw High School where he had undergone psychological testing and found to have a verbal IQ of 69, a performance IQ of 58, and a full scale IQ of 61. He had a reading word recognition level of 3.6 grade level, a spelling performance at a 3.0 grade level, and an arithmetic ability at 3.3 grade level. The psychologist who conducted the tests concluded that these results showed signs of a suppressed mental age, and that his general insight and maturity level was that of a pre-adolescent.
49. Henry was charged for his participation in the Anthony Thomas death with aiding and abetting first degree murder. Based on this charge, the juvenile court waived its jurisdiction over Henry and one of his co-defendants, sixteen-year-old, Dennis Johnson. Both stood trial as adults.
50. Following his trial, Henry was convicted by a jury of first degree aiding and abetting murder.
51. Henry’s pre-sentence investigation report notes that his intelligence classification was in the mentally defective range with an academic ability at the third grade level. In the
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examiner’s opinion Henry had the maturity of a nine-year-old child and was motivated by instant gratification, and the desire to be accepted and secure.
52. The trial court had no discretion to consider Henry’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Henry as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Henry for parole. At no stage in his prosecution was Henry’s juvenile status considered and, following his conviction, he has never been afforded a meaningful opportunity for release based on his demonstrated maturity and rehabilitation.
53. Henry has exhausted all of his post-conviction appellate options. In 2009, he filed a petition for clemency, which is pending.
54. Henry Hill is now forty-six years old and has served nearly thirty years in prison for his actions. He has exhausted all prison educational programs and resources available to him. He works and participates in his bible study group for which he consistently receives excellent reports. Henry has not had a misconduct citation for over a decade and has a custody level II, the lowest possible for his sentence. He is regarded as a model prisoner.
Jemal Tipton 55. In 1987, Jemal Tipton, then aged seventeen, participated in a robbery at the Hunter’s Ridge Condominium Complex in Farmington Hills, Michigan with two adults, Nellie McInnis, a forty-six-year-old acquaintance of his mother, and his older brother, Anthony Parks. 56. Nellie McInnis drove Jemal and Anthony to where the robbery took place. She gave Jemal a .22 caliber pistol and identified an acquaintance of hers, Edward Chapman, as the person to rob.
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57. Armed with the .22 pistol, Jemal approached Edward Chapman and demanded his valuables. A scuffle ensued and the gun went off twice. One shot struck Edward Chapman, killing him.
58. Jemal had a difficult upbringing in which he was shuttled between family members and friends during his mother’s stays in jail or drug treatment facilities before ending up in the care of Nellie McInnis, a family acquaintance with a long criminal history.
59. Under Michigan laws then in force, Jemal was automatically charged as an adult with felony murder. He was tried as an adult, and after trial he was convicted and given the mandatory adult sentence for the offense, life in an adult prison.
60. In sentencing Jemal, the trial court had no discretion to consider his juvenile status.
61. Michigan law required that the trial court punish Jemal as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment.
62. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Jemal for parole. At no stage in his prosecution was his juvenile status considered and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
63. Since his incarceration, Jemal has taken every opportunity to rehabilitate himself. He obtained his GED and electrician certification. He currently earns three dollars a day doing electrician work detail and mentors younger prisoners, encouraging them to continue their education while in prison.
64. Jemal has exhausted all of his post-conviction appellate options.
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65. Since his incarceration, Jemal has been given a total of eight misconduct tickets, the last one occurring over twenty years ago. Jemal has now served twenty-two years in adult prison.
Damion Todd 66. In 1986, Damion Todd was a seventeen-year-old entering his senior year in high school. On a Saturday night in August, Damion and three friends drove to an end of the summer party in Detroit, Michigan. A short while after they had left the party and were driving home, a group of men drove by and shot at them in their car. Convinced that they were from the party, one of Damion’s companions suggested they get his gun and look for the men. 67. They drove back to the party where they were again shot at. Damion’s friend then gave him a shotgun, and told him to fire back. Damion asserts he intended only to fire at the group that shot at them to scare them. However, a young woman who was at the party, Melody Rucker, was struck and died shortly thereafter. 68. At the time of the incident, Damion was a senior at Henry Ford High School in Detroit. He was captain of his football team and had received Letters of Intent from several Division I AA football schools. Damion had no prior involvement in any juvenile or adult criminal proceedings. 69. Damion had volunteered for two summers with the Detroit Police Cadets, a member of the Police Athletic League sports teams, and he was active in his church choir. He worked part-time in a family restaurant in Southfield, as well as in his family’s business. 70. Damion was automatically charged and tried as an adult with assault with intent to kill, first degree murder and felony firearm possession. Damion was subsequently convicted
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on these charges and sentenced to life on the murder charge, 100 to 200 years on the assault conviction and two years for felony firearm possession.
71. The Michigan Department of Corrections’ psychologist’s intake report noted that persons with profiles as similar to Damion’s “tend to be persons with very good institutional and post-release adjustment” and that he “could have been dealt with just as efficiently and less expensively through probation in the community,” as “by the time Mr. Todd reaches his early 30’s, he would have matured out of a youthful exuberance and indiscretions which resulted in the needless and tragic death of an innocent female bystander.”
72. Damion’s sentence for the assault with intent to murder was reversed in 1996 as being excessive and an abuse of discretion. He was resentenced to ten to thirty years on this charge. His mandatory life sentence for his conviction under M.C.L. 750.316, however, remains.
73. The trial court had no discretion to consider Damion’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Damion as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Damion for parole. At no stage in his prosecution was Damion’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
74. Damion has exhausted all of his post-conviction appellate options. In 2010, he filed a petition for clemency, which was denied.
75. Since his incarceration, Damion has obtained certificates in food technology, custodial maintenance, officiating certificates for basketball, volleyball, baseball and Jaycees (a worldwide organization that does humanitarian acts such as donating toys to children). He is a
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member of the Prisoners of Christ Church and in 1987 he received his GED. Damion has received only four misconduct tickets in the twenty-four years he has been incarcerated. He acts as a mentor to young prisoners and is considered by prison officials to be a respectful, thoughtful adult who does his job with excellence and with no management problems.
Bobby Hines 76. In 1989, fifteen-year-old Bobby Hines went with nineteen-year-old Christopher Young and sixteen-year-old Derius Woolfolk to confront James Warner about Warner’s alleged involvement in the theft of a jacket from a boy in the neighborhood. The boy had reported that James Warner had threatened him and taken his jacket for money owed on a drug deal. 77. When the young men saw Warner, Derius Woolfolk fatally shot him and wounded another man he was with. Bobby, who touched neither the weapon nor the victims, was charged as an adult with felony murder. He was tried and subsequently convicted on this charge and sentenced to life imprisonment. 78. The incident occurred in the summer of 1989 shortly after Bobby had completed his eighth grade education at Brooks Middle School in Detroit, Michigan, where he had regular attendance and average grades. 79. Bobby’s co-defendants – Christopher Young, who provided the weapon and sixteen-year-old, Derius Woolfolk, who fatally shot the victim – were both convicted of second degree murder and are serving parolable life sentences. 80. Bobby was automatically charged as an adult under Michigan’s post-1988 laws without consideration of his juvenile status, mental maturity or relative culpability. He was tried as an adult and upon conviction the court had to choose between punishing him as an adult or releasing him at age twenty-one.
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81. The pre-sentence investigation report set forth an evaluation of and plan for Bobby stating that there was no dispute as to what occurred but that due to the “seriousness of the present offenses this writer feels the services and facilities in the adult program would offer more time and circumstance to rehabilitate this defendant. For these reasons and for the best interest of the public welfare and security, it is recommended this defendant be sentenced to a period of incarceration in an adult facility.”
82. The court had no discretion but to sentence Bobby to “a period of incarceration in an adult facility.” Michigan law required that the trial court either sentence him as a juvenile to be released at age twenty-one or sentence him as an adult to a mandatory sentence of life. Bobby was sentenced to serve “the rest of [his] natural life to hard labor and solitary confinement.” Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Bobby for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
83. Bobby is assigned to the lowest custody level available for his sentence. He has now served twenty-one years in prison on a life sentence.
Kevin Boyd 84. In 1994, Kevin Boyd, then aged sixteen, was convicted of first degree premeditated murder for his role in the murder of his father, Kevin Boyd, Sr. by his mother, Lynn Boyd. 85. Kevin’s mother and father had been separated for six years on August 5, 1994, when Kevin’s mother and her lover asked Kevin to give them the keys to his father’s apartment, telling him they were going to kill his father. Kevin gave his mother the keys and did not report
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his mother’s threat to the police. The next day Kevin went to his father’s apartment, found him murdered and immediately called the police.
86. Four months later, on October 18, 1994, Kevin’s mother confessed to the murder and was arrested. Kevin was also arrested at this time. He was interrogated without counsel or a guardian present.
87. Kevin admitted to having given the keys to his mother knowing that she was planning to murder his father and therefore takes responsibility for his role in the murder. He maintains he did not participate in the actual stabbing incident.
88. Kevin was automatically charged under Michigan’s post-1988 laws and tried as an adult without a judicial waiver hearing.
89. By the time of his sentencing Kevin had turned nineteen, giving the court a difficult choice: to sentence Kevin as a juvenile with mandatory release in two years or to sentence him as an adult which would result in a mandatory life sentence.
90. Despite positive reviews for Kevin from supervisors at the juvenile facility where he was detained pending trial and sentencing, opinions that he was nonviolent and unlikely to be a repeat offender and his involvement being based on his youthful desire to please his mother, it was felt that three years would be inadequate for the juvenile system to fully rehabilitate Kevin. Kevin was therefore sentenced to life imprisonment.
91. Kevin appealed and the Michigan Court of Appeals reversed his sentence, finding that the trial court had abused its discretion in sentencing Kevin as an adult, as Kevin was “a model prisoner, an excellent student, amenable to treatment, not a danger to the public and remorseful for his actions.” Four months later, with little explanation, the appeals court reversed itself.
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92. Michigan law required that Kevin be sentenced to mandatory life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Kevin for parole and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
93. Kevin has subsequently exhausted all of his post-conviction appellate options. His petition for clemency is pending.
94. During his incarceration, Kevin has received his GED, several trade certificates and is considered a model prisoner. Kevin has now served fourteen years in adult prison and is a Level II prisoner, the lowest custody level for his sentence.
Bosie Smith 95. In 1992, Bosie Smith, then aged sixteen, was involved in the stabbing death of an adult male during a fight. 96. Although the adult male who initiated the fight was eight years older and twice the size of the 103 pound Bosie, the jury rejected Bosie’s claim of self-defense and convicted him on the first degree murder charge. 97. Bosie was born with fetal alcohol syndrome. He was abandoned by both his parents and was raised by his maternal grandmother. At the time of his conviction, he had completed schooling through the eighth grade. Bosie was a member of his school’s wrestling team and local church youth group. 98. Bosie was tried as an adult under Michigan’s automatic transfer laws. He was charged and tried as an adult without a judicial waiver hearing or any consideration of his juvenile status, mental age or maturity.
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99. Both the case evaluator and the judge were troubled by the idea of sentencing Bosie to life imprisonment. Nevertheless, the case evaluator recommended adult sentencing because the only other option was four years in the juvenile system. The trial judge stated that he would sentence Bosie to a term of years if he had that option but that he was bound by the statute, which required a mandatory life sentence.
100. On appeal, the conviction was affirmed but the case was remanded upon a finding that the trial court abused its discretion in sentencing Bosie as an adult. The Court of Appeals ordered Bosie to undergo psychological testing to assist the trial court in its sentencing. However, the Supreme Court reversed the Court of Appeals remand order, finding that there was no clear error or abuse of discretion by the trial court.
101. Michigan law required that the trial court sentence Bosie to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Bosie for parole and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
102. Since his incarceration, Boise has completed his GED and has been involved in numerous prison groups including, Commitment to Change, Career Scope, 2nd Chance at Life, and Retired Greyhound Prison Program. Boise has also earned certificates pertaining to “Communication Skills,” “Diversity,” “Critical Thinking,” “Prisoner Rape Elimination Act Education,” and “Blood Bourn.” Presently, Bosie is in the process of completing training in custodial maintenance, conflict resolution, and substance abuse counseling training.
103. Bosie has exhausted all his post-conviction appellate options.
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104. Bosie has been imprisoned in an adult facility for seventeen years and throughout this time has maintained Level II custody, the lowest allowed for his offense.
Jennifer Pruitt 105. In 1992, Jennifer Pruitt, then aged sixteen, participated in a plan to rob one of her neighbors in Pontiac, Michigan. 106. Jennifer was a runaway from sexually and physically abusive parents when she committed her crime. She had no prior criminal record. 107. At the time of the robbery, Jennifer was staying with Donnell Miracle, a twentythree-year-old neighbor. While Miracle initiated the robbery plan, Jennifer was the one who singled out the neighbor, Elmer Heichel, as the person to rob. 108. Elmer Heichel let Jennifer and Miracle into his house at 1:30 a.m. on August 30, 1992. Jennifer went to use the bathroom and then went into the back room to steal the neighbor’s wallet. When she came out of the room she witnessed Miracle stabbing Elmer Heichel. 109. Jennifer did not participate in the stabbing. She also reported the incident and her involvement to the police that same day, leading to the subsequent arrest of Miracle. 110. The trial of Jennifer Pruitt was delayed. Jennifer’s remorse was so strong that she became self-injurious and was committed to a psychiatric facility where she was deemed incompetent to stand trial for over a year. 111. Under Michigan law, Jennifer was automatically charged as an adult with first degree murder and armed robbery. She was convicted of felony murder and sentenced as an adult based upon the pre-sentence investigation report’s assertion that the adult facilities would afford greater opportunities for her rehabilitation. However, the report failed to acknowledge
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that her rehabilitation and eventual return to society was impossible because under Michigan law, the court had no discretion to give her any sentence other than life in prison.
112. Given the nature of the offense for which Jennifer was convicted, the Michigan Parole Board does not have jurisdiction to consider her for parole, and she has never been afforded a meaningful opportunity for release based on her juvenile status and her demonstrated maturity and rehabilitation.
113. During Jennifer’s initial years in adult prison, she was raped by two male correctional officers. She has also undergone counseling to assist her recovery from posttraumatic stress disorder.
114. Jennifer has exhausted all of her post-conviction appellate remedies. Her petition for clemency was denied.
115. Jennifer has now served eighteen years of a mandatory sentence of life imprisonment. In the last ten years, Jennifer completed her GED and all recommended rehabilitation programs offered her. Jennifer maintains a Level II security classification, the minimum for her offense, and she has been described as an “inmate role model and excellent worker, dependable, honest, sincere and reliable.”
Matthew Bentley 116. In 1997, Matthew Bentley was a fourteen-year-old ninth grader at Bad Axe High School in Michigan when he decided to break into a house in his neighborhood. 117. Matthew was the youngest child of his mother and father’s second marriage, and he was five when his father was incarcerated for sexual abuse of his sister. He was then raised by his mother. Matthew had a difficult time focusing at school, and in grade school he was diagnosed with Attention Deficit Disorder. He was prescribed Ritalin and he took the
22

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medication until his mother could no longer afford it. He was an active member of the Boy Scouts, young marines, and his local church. He helped with his brother-in-law’s business, swam, wrote poetry, played basketball and babysat his nieces and nephews.
118. Matthew began drinking alcohol at the age of eleven and using marijuana at age thirteen. In 1996, he was prescribed Zoloft for depression and Dexedrine for hyperactivity. His use of drugs and behavior resulted in foster care placement shortly before he committed his offense.
119. On the day of the incident, Matthew left school early and broke into a home he thought was unoccupied. While he was in the house, he found the owner’s gun, which he took with him while rummaging through the house for other valuables. When unexpectedly confronted by the owner of the house, Matthew shot and fatally wounded her before fleeing the scene.
120. Matthew was arrested the same day and, under the newly enacted Michigan law lowering the age for automatic waiver to adult prosecution to fourteen, was charged as an adult with felony murder, home invasion, and felony firearm possession.
121. Tried as an adult, Matthew was convicted of all three offenses and given the mandatory sentence of life imprisonment. The judge stated at his sentencing hearing that if he had a choice he would have given Matthew a term of years which would have afforded him the opportunity for release in fifteen years.
122. In addition to lowering the age for automatic adult prosecution to fourteen, the 1996 laws under which Matthew was charged and sentenced eliminated any discretion to consider Matthew’s juvenile status at sentencing. Matthew was charged, tried, convicted and sentenced without any discretion to consider his juvenile status, mental age or maturity.
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Michigan law required that the trial court punish Matthew as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Matthew for parole.
123. At no stage of his criminal prosecution and sentencing was Matthew’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
124. Since being imprisoned, Matthew has earned his GED and a trade certificate in custodial maintenance. He acts as a mentor and a guardian to incoming young prisoners who are targeted by older sexually predatory inmates.
125. Matthew has exhausted his state appellate options and has filed a clemency petition.
126. Matthew has now served thirteen years in prison. He is currently a Level II custody level prisoner, the lowest allowed for his offense.
Keith Lenard Maxey 127. In 2007, Keith Maxey was sixteen when he accompanied two adult acquaintances to meet some men to buy marijuana. Three people were shot during the drug deal, including Keith. Keith and one of his co-defendants were subsequently charged with attempting to rob the drug dealers and in the death of one of them, who later died from his wound. 128. Keith’s co-defendant, Tyrell Adams, a twenty-year-old who shot the victims and committed the murder, pled to second degree murder and is serving a term of years. The second co-defendant Antoine Bailey, who was also a twenty-year-old, was charged and convicted of assault with intent to commit murder and sentenced to fifteen years.
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129. Keith, the only juvenile involved in the incident, was automatically charged and tried as an adult and convicted of first degree felony murder.
130. Keith was then sentenced as an adult to a mandatory life sentence. 131. Keith appealed his conviction and sentence but the Court of Appeals affirmed the lower court’s order. His application for leave to appeal to the Michigan Supreme Court was denied. 132. The 1996 laws under which Keith was charged and sentenced eliminated any discretion to consider Keith’s juvenile status at sentencing. Keith was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Keith as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Keith for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation. 133. Keith has exhausted his state appellate options. 134. Keith has been imprisoned for two years. During this time he has not received any misconduct citations, is taking classes to complete his GED and is classified to the lowest security level allowed for his offense.
GENERAL FACTUAL ALLEGATIONS 135. Each of the Plaintiffs committed their offenses before the age of eighteen. 136. Each of the Plaintiffs was sentenced as an adult and was given the mandatory punishment imposed on adults for first degree murder, life imprisonment.
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137. Under current Michigan law, the Parole Board does not have jurisdiction over any of the Plaintiffs because they are serving a life sentence for a conviction of first degree murder under M.C.L. 750.316. No one convicted of such an offense can be considered for parole.
138. Under Michigan’s scheme for punishing juveniles as adults for first degree homicide offenses, each of the Plaintiffs cannot be considered for parole, and none of them have been afforded a meaningful opportunity for release based on their juvenile status and demonstrated maturity and rehabilitation.
139. Plaintiffs, who were all juveniles at the time they committed their offenses, did not have the same maturity and sense of responsibility as adults.
140. The State of Michigan recognizes this relative lack of maturity and responsibility based on their age in other areas of the law by prohibiting them from voting, entering into valid contracts, serving on juries, joining the armed forces, smoking tobacco, marrying without parental consent, leaving school, working full time, or applying for a driver’s license without first undergoing youth-specific driver education classes.
141. Plaintiffs, as juveniles, were more vulnerable to adult influences and susceptible to peer pressure than adults.
142. Plaintiffs, as juveniles, were more likely to act impetuously without regard for consequences as compared to adults.
143. Plaintiffs, as juveniles, have a greater capacity for change, growth and rehabilitation than adults.
144. Plaintiffs’ ineligibility for parole discounts and renders immaterial maturity, good behavior, character and rehabilitation for purposes of consideration of release.
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145. The punishment schemes under which the Plaintiffs were imprisoned do not provide for a meaningful opportunity to obtain release upon demonstration of maturity and rehabilitation.
146. The imprisonment of Plaintiffs for life without affording them a meaningful opportunity for release once they have grown and matured fails to take into consideration whether Plaintiffs’ actions were as a result of transient immaturity and whether they have been rehabilitated.
147. Plaintiffs’ youth means that they will be punished more severely than adults given the same sentence because they will serve more years and a greater percentage of their lives in prison than adult offenders.
148. There is no legitimate penological justification for imposing life sentences on Plaintiffs without also affording them a meaningful opportunity for release because such a denial fails to serve any of the recognized objectives of punishment.
149. Michigan is one of only two states in the United States that require that juveniles convicted of first degree homicide offenses be given the harshest adult penalty available in the state without any consideration of lesser culpability or discretion to impose lesser punishment based upon juvenile status.
150. Michigan’s system accounts for over 15% of all juveniles in the United States serving a sentence of life without possibility of parole.
151. The majority of states that allow for the imposition of life sentences without parole on juveniles, provide for discretion at some stage of the proceeding, and require consideration of the individual’s age, maturity and lesser culpability prior to charging and sentencing.
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152. Michigan is in the minority of states in imposing this harshest punishment on juveniles who aid and abet, but do not themselves commit, a homicide.
153. Of the two states that impose the harshest sentence available for adult criminal behavior as a mandatory punishment, Michigan has over six times the number of youth serving this sentence.
154. Michigan is in the minority of states that automatically impose this punishment on juveniles as young as fourteen.
155. The United States is the only country in the world that permits and imposes a life without possibility of parole sentence on persons who commit their offense prior to the age of eighteen.
156. The United Nations Human Rights Committee identified this practice as noncompliant with Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).
157. The United States is a party to the ICCPR, but has reserved the right to treat juveniles as adults only in “exceptional circumstances.”
158. Michigan’s laws do not constitute such an exceptional circumstance, as they presumptively treat all juveniles involved in homicide offenses as adults and sentence all juveniles as if they were adults for such involvement.
159. In December 2006, the United Nations General Assembly passed a resolution, 185-1 (United States), calling upon all nation states to abolish life imprisonment without possibility of release for those persons below eighteen years of age at the time they committed the offense.
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160. In 2008, the United Nations Committee on the Elimination of Racial Discrimination in its consideration of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination found that the sentencing of juveniles violated key provisions of the Convention, and called upon the United States to end the practice and to review the situation of prisoners currently serving such sentences.
161. Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990), ratified by every member state except the United States and Somalia, explicitly prohibits the imposition of “life imprisonment without the possibility of release … for offenses committed by persons below eighteen years of age.”
CAUSES OF ACTION FIRST CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT) 162. Plaintiffs incorporate by reference paragraphs 1 through 161 above as if set forth fully herein. 163. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release upon demonstrating their maturity and rehabilitation constitutes punishment with no legitimate penological justification, and as such constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as incorporated by the Fourteenth Amendment and enforceable through 42 U.S.C. § 1983. 164. Michigan’s statutory scheme, which denies Plaintiffs a meaningful opportunity for release, violates the Eighth Amendment by failing to recognize the difference in moral culpability between adults and juveniles who commit first degree homicide offences under M.C.L. 750.316.
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165. Michigan’s statutory scheme, which denies Plaintiffs a meaningful opportunity for release, results in juveniles receiving a longer sentence than an adult for the same offense, in violation of the Eighth Amendment to the United States Constitution.
166. M.C.L. 791.234(6), which strips the Michigan Parole Board of jurisdiction over prisoners serving a life sentence for offenses under M.C.L. 750.316, is unconstitutional as applied to Plaintiffs.
SECOND CAUSE OF ACTION (DUE PROCESS)
167. Plaintiffs incorporate by reference paragraphs 1 through 166 above as if set forth fully herein.
168. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release upon demonstrating their growth, maturity and rehabilitation constitutes a denial of due process of law in violation of the Fourteenth Amendment to the United States Constitution as enforceable through 42 U.S.C. § 1983.
169. Michigan’s statute depriving the parole board of jurisdiction over prisoners serving life sentences for certain offenses committed before their eighteenth birthday constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
170. M.C.L. 791.234(6), which denies persons, convicted of homicide offenses under M.C.L. 750.316, any opportunity to demonstrate their maturity and rehabilitation, is unconstitutional as applied to Plaintiffs.
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THIRD CAUSE OF ACTION (DUE PROCESS)
171. Plaintiffs incorporate by reference paragraphs 1 through 170 as if set forth fully herein.
172. Michigan’s statute that automatically waives juveniles to adult court for trial and sentencing, without any consideration of juvenile status or discretion to recognize their juvenile status for purposes of imposing the harshest punishment constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
173. Michigan law requiring the imposition of the harshest adult punishment on a juvenile, based on the nature of the offense without affording them an opportunity or a hearing to demonstrate their lesser culpability at the time they committed the offense and their maturity and rehabilitation, constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
174. Michigan’s statutory scheme which requires that juveniles as young as fourteen years of age who are charged with certain felonies to automatically be tried as adults and, if convicted, to be sentenced without discretion to life without parole, denies Plaintiffs due process of law in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to provide for any hearing to consider their juvenile status and its relationship to their culpability and potential for rehabilitation.
175. Michigan’s statutory system that punishes juveniles who are convicted of homicide offenses under M.C.L. 750.316 with a life sentence, and without providing an opportunity to demonstrate that they lack the requisite intent necessary for such a conviction
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violates Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
FOURTH CAUSE OF ACTION (CUSTOMARY INTERNATIONAL LAW) 176. Plaintiffs incorporate by reference paragraphs 1 through 175 as if set forth fully herein. 177. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release, based on their status and their demonstrated maturity and rehabilitation constitutes punishment with no legitimate penological justification, and as such constitutes cruel, inhuman or degrading treatment or punishment in violation of customary international law as reflected inter alia in the Universal Declaration on Human Rights, the ICCPR and the U.N. Convention on the Rights of the Child, which extend special measures of protection to children and prohibit life imprisonment without the possibility of release for offenses committed by persons below eighteen years of age and other forms of cruel, inhuman or degrading treatment or punishment. 178. Defendants’ violations of customary international law are actionable pursuant to 42 U.S.C. § 1983 in that customary international law has been held, since the Constitution’s adoption, to be part of the laws of the United States.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray for a judgment against the Defendants and each of them requests that this Court: a. Issue a declaratory judgment that the continued incarceration of Plaintiffs without affording them a meaningful opportunity to obtain release, based on their juvenile status and
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demonstrated maturity and rehabilitation, violates Plaintiffs’ rights guaranteed by the United States Constitution, statutory law, and customary international law;
b. Issue a declaratory judgment that M.C.L. 791.234(6), as applied to Plaintiffs, violates the Eighth and Fourteenth Amendments to the United States Constitution and customary international law;
c. Order Defendants to provide Plaintiffs with a meaningful opportunity to obtain release upon them attaining the age of majority and every five years thereafter;
d. Retain jurisdiction over this action until such time as the Court is satisfied that the unlawful laws, policies, practices, rules, acts and omissions complained of herein have been satisfactorily rectified;
e. Award Plaintiffs attorney fees and costs; and f. Award such other and further relief as seems just and proper.

DATED: November 17, 2010

Respectfully submitted,
/s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
/s/Ronald J. Reosti RONALD J. REOSTI (P19368) Counsel for Plaintiffs 23880 Woodward Ave. Pleasant Ridge, MI 48069-1133 248.691.4200 ron.reosti@gmail.com

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/s/Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund
of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org dkorobkin@aclumich.org kmoss@aclumich.org
/s/Steven M. Watt Steven M. Watt (Admission Pending) Human Rights Program Vanita Gupta (Admission Pending) Center for Justice Robin Dahlberg (Admission Pending) Racial Justice Program Dennis Parker (Admission Pending) Racial Justice Program Jay Rorty (Admission Pending) Criminal Law Reform Project American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 swatt@aclu.org vgupta@aclu.org rdahlberg@aclu.org dparker@aclu.org jrorty@aclu.org
34

 
 5:10-cv-14568-JCO-RSW Doc # 29 Filed 07/13/11 Pg 1 of 1 Pg ID 397

P.O. Box 30736 LANSING, MICHIGAN 48909-8236
BILL SCHUETTE ATTORNEY GENERAL
July 12, 2011
Hon. John Corbett O'Meara United States District Court for the Eastern District of Michigan 200 E. Liberty Street, Suite 400 Ann Arbor, MI 48104
RE: Henry Hill, et. al. v. Snyder, et. al. No. 5: 10-cv-14568 Supplemental Authority
Your Honor:
On May 20, 2011, the Wisconsin Supreme Court issued its opinion in the case of State v. Ninham, 316 Wis.2d 776, 767 NW.2d 326 (2011). By this correspondence, I submit that case as supplemental authority in support of the Defendants' pending Motion to Dismiss in the above stated matter.
Applying the approach employed by the United States Supreme Court in Gra.ham v. Florida, 130 S. Ct. 2011 (2010), the Wisconsin Supreme Court concluded in Ninham that sentencing a juvenile homicide offender to life imprisonment without the possibility of parole is not unconstitutional under the Eighth Amendment. The Court held that such a sentence is neither categorically unconstitutional nor unduly harsh and excessive.
I have attached a copy of the Ninha.m decision for your ease of reference, and would draw the Court's attention to Sections III (A) and (B) [pp. 16-44].
crly "'".

JTF c: Daniel S. Korobkin
Michael J. Steinberg Deorah A. Labelle Steven M. Watt Ezekiel R. Edwards Enclosure

Joseph T. roehlich Assistant Attorney General

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, and KEITH MAXEY,

Plaintiffs,

Case No. 10-14568

v.
RICK SNYDER, in his official capacity as Governor of the State of Michigan, RICHARD MCKEON, in his official capacity as Interim Director, Michigan Department of Corrections, BARBARA SAMPSON, in her official capacity as Chair, Michigan Parole Board, jointly and severally,

Hon. John Corbett O’Meara

Defendants. ______________________________________________/

ORDER DENYING DEFENDANTS’ MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL This case involves Plaintiffs’ challenge to the constitutionality of Michigan’s sentencing scheme, which permits sentences of life without parole for juveniles. On July 15, 2011, the court granted in part and denied in part Defendants’ motion to dismiss. The surviving claim is Plaintiff Keith Maxey’s claim under the Eighth Amendment. Before the court is Defendants’ motion for certification of interlocutory appeal and request for stay pending appeal. Plaintiff opposes Defendants’ motion. To obtain permission to appeal pursuant to 28 U.S.C. § 1292(b), Defendants must show that: “(1) the question involved is one of law; (2) the question is controlling; (3) there is substantial ground for difference of opinion respecting the correctness of the district court’s decision; and (4) an immediate appeal

would materially advance the ultimate termination of the litigation.” Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993). “Review under § 1292(b) should be sparingly granted and then only in exceptional cases.” Id.
The court is not persuaded that this is in an exceptional case warranting immediate appellate review under § 1292(b). In denying Defendants’ Rule 12(b)(6) motion, the court determined that Keith Maxey stated a claim under the Eighth Amendment. As the court stated in its opinion, the “full Eighth Amendment analysis required by Graham involves the presentation of evidence that is not yet before the court on this Rule 12(b)(6) motion.” See Graham v. Florida, 130 S.Ct. 2011 (2010). An immediate appeal at this stage would not advance this litigation, but delay the presentation of evidence needed to conduct the analysis required by Graham.
Therefore, IT IS HEREBY ORDERED that Defendants’ motion for certification of interlocutory appeal and request for stay pending appeal is DENIED.

Date: January 12, 2012

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, January 12, 2012, using the ECF system.
s/William Barkholz Case Manager

-2-

 
 5:10-cv-14568-JCO-RSW Doc # 44 Filed 02/01/12 Pg 1 of 39 Pg ID 545

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, KEITH MAXEY, GIOVANNI CASPER, JEAN CARLOS CINTRON, NICOLE DUPURE and DONTEZ TILLMAN,
Plaintiffs, v.
RICK SNYDER, in his Official Capacity as Governor of the State of Michigan, DANIEL H. HEYNS, in his Official Capacity as Director, Michigan Department of Corrections, and TOMAS COMBS, in his Official Capacity as Chair, Michigan Parole Board, jointly and severally,
Defendants.

File No. 10-cv-14568
HON. JOHN CORBETT O’MEARA MAG. JUDGE R. STEVEN WHELAN

DEBORAH LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620
STEVEN M. WATT EZEKIEL R. EDWARDS American Civil Liberties Union Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870

MARGARET A. NELSON (P30342) ANN M. SHERMAN (P67762) CHRISTINA M. GROSSI (P67482 JOSEPH T. FROEHLICH (P71887) Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 517.373.6434
Attorney for Defendants

DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824

Attorneys for Plaintiffs ______________________________________________________________________________________________

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5:10-cv-14568-JCO-RSW Doc # 44 Filed 02/01/12 Pg 2 of 39 Pg ID 546
NOW COME Plaintiffs, by and through their counsel, and for their Complaint for Declaratory and Injunctive Relief, against the Defendants, and each of them, state as follows:
INTRODUCTION 1. This action for declaratory and injunctive relief is brought under 42 U.S.C. § 1983. Plaintiffs are individuals who were charged and tried as adults for crimes committed when they were under the age of eighteen, punished by a mandatory adult sentence of life imprisonment, and are currently being detained without a meaningful opportunity for release. 2. Juvenile offenders, as compared to adults, have lessened culpability and are less deserving of the harshest punishment available. They have a lack of maturity and an underdeveloped sense of responsibility, making them more vulnerable or susceptible to negative influences and outside pressures. 3. Since abolishing the death penalty in 1846 for crimes involving homicides, the harshest penalty the State of Michigan can impose on an adult convicted of any such crime, or series of crimes, is a life sentence without the possibility of parole. 4. Under the current scheme in Michigan, juveniles may be charged, tried and sentenced as if they were adults without consideration of their juvenile status, including their reduced culpability and unique capacity for change and rehabilitation as compared to adults. 5. Under Michigan law, seventeen-year-olds are treated as adults in all criminal proceedings and juveniles aged fourteen and up are automatically charged as adults for homicide offenses, absent the prosecutor filing a petition in juvenile court.
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6. Michigan categorizes its homicide offenses as either first or second degree offenses. The former includes premeditated murder, murder of a peace officer, felony murder and aiding and abetting a murder. M.C.L. 750.316; M.C.L. 767.39. All other homicide offenses are categorized as second degree murder. M.C.L. 750.317.
7. Both first degree and second degree offenses can result in a sentence of life imprisonment. However, the sentence for a conviction under M.C.L. 750.316 is mandatory and Michigan courts have no discretion to consider the age of juvenile offenders who are charged and tried as adults, as a mitigating factor in their sentencing. M.C.L. 750.316.
8. Moreover, while a conviction for both first degree murder – M.C.L. 750.316 – and second degree murder – M.C.L. 750.317 – carries a maximum sentence of life imprisonment, the Michigan Parole Board does not have jurisdiction over the mandatory life sentences given to juveniles convicted under M.C.L. 750.316.
9. Plaintiffs were all charged and convicted under M.C.L. 750.316. 10. Plaintiffs seek a declaration that Michigan laws, policies and practices, including M.C.L 791.234, insofar as it excludes Plaintiffs from the jurisdiction of the Michigan Parole Board and thereby denies them a meaningful opportunity for release, violates the Eighth and Fourteenth Amendments of the United States Constitution and customary international law. 11. Plaintiffs do not challenge their judgments of conviction and do not seek to invalidate their life sentences; rather Plaintiffs seek orders that the Michigan Department of Corrections afford them, as persons sentenced to life imprisonment for offenses committed before they were eighteen years old, a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation.
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JURISDICTION 12. 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. § 1343(a), which authorizes federal courts to hear civil rights cases, and 28 U.S.C. § 2201, the Declaratory Judgment Act.
VENUE 13. Venue is proper in this Court, as the Defendants conduct their business across the state, including in the Eastern District of Michigan, and some of the named Plaintiffs are incarcerated in the Eastern District of Michigan.
PARTIES Plaintiffs 14. Plaintiff Henry Hill was charged, convicted and sentenced as an adult to a life sentence in Saginaw County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Hill is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Henry has served twentyeight years in adult prison. 15. Plaintiff Jemal Tipton was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a seventeen-year-old minor. Plaintiff Tipton is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Jemal has served twentythree years in prison.
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16. Plaintiff Damion Todd was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a seventeen-year-old minor. Plaintiff Todd is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Damion has served twentyfour years in adult prison.
17. Plaintiff Bobby Hines was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a fifteen-year-old minor. Plaintiff Hines is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Earnest C. Brooks Correctional Facility in Muskegon County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Bobby has served twenty-one years in adult prison.
18. Plaintiff Kevin Boyd was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Boyd is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Kevin has served fourteen years in adult prison.
19. Plaintiff Bosie Smith, was charged, convicted and sentenced as an adult to a life sentence in Washtenaw County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Smith is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Chippewa Correctional Facility in Chippewa County, Michigan, where he is
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assigned to the lowest custody level possible for an individual serving this sentence. Bosie has served eighteen years in adult prison.
20. Plaintiff Jennifer Pruitt was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when she was a sixteen-year-old minor. Plaintiff Pruitt is currently in the custody of the Michigan Department of Corrections. She is imprisoned at the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence. Jennifer has served seventeen years in adult prison.
21. Plaintiff Matthew Bentley was charged, convicted and sentenced as an adult to a life sentence in Huron County, Michigan, for acts committed when he was a fourteen-year-old minor. Plaintiff Bentley is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Richard A. Handlon Correctional Facility in Ionia County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Matthew has served twelve years in adult prison.
22. Plaintiff Keith Maxey was charged, convicted and sentenced as an adult to a life sentence in Wayne County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Maxey is currently in the custody of the Michigan Department of Corrections. He is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Keith has served two years in adult prison.
23. Plaintiff Giovanni Casper was charged, convicted and sentenced as an adult to a life sentence in Kent County, Michigan, for acts committed when he was a seventeen-year-old minor. Plaintiff Casper is currently in the custody of the Michigan Department of Corrections. He is
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imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence.
24. Plaintiff Jean Carlos Cintron was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a sixteen-year-old minor. Plaintiff Cintron is currently in the custody of the Michigan Department of Corrections. He is imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence.
25. Plaintiff Nicole Dupure was charged, convicted and sentenced as an adult to a life sentence in Macomb County, Michigan, for acts committed when she was a seventeen-year-old minor. Plaintiff Dupure is currently in the custody of the Michigan Department of Corrections. She is imprisoned in the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence.
26. Plaintiff Dontez Tillman was charged, convicted and sentenced as an adult to a life sentence in Oakland County, Michigan, for acts committed when he was a fourteen-year-old minor. Plaintiff Tillman is currently in the custody of the Michigan Department of Corrections. He is imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence.
Defendants 27. Defendant Rick Snyder is the Governor of the State of Michigan. Defendant Snyder is invested with executive power pursuant to Art. V § 1 of the Michigan Constitution and is responsible for ensuring compliance with the laws of the State of Michigan. Defendant Snyder resides in Ingham County, Michigan. Governor Snyder is sued in his official capacity.
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28. Defendant Daniel H. Heyns is the Director of the Michigan Department of Corrections. Defendant Heyns has authority over the Michigan Parole Board pursuant to M.C.L. 791.231a, which determines which Michigan prisoners are eligible for parole. Defendant Heyns is sued in his official capacity.
29. Tomas Combs is the Chair of the Michigan Parole Board. Under M.C.L. 791.234, the Parole Board determines which prisoners, under their jurisdiction, to parole. Defendant Combs is sued in his official capacity.
BACKGROUND FACTUAL ALLEGATIONS Michigan’s Sentencing Framework
30. Since abolishing capital punishment, the harshest punishment the State of Michigan can impose for any crime or series of crimes is a life sentence without the possibility of parole.
31. Michigan’s Penal Code sets forth the punishments for crimes categorized as first degree homicides, which include premeditated murder, M.C.L. 750.316(1) (a); felony murder, M.C.L. 750.316(1)(b); murder of a peace officer, M.C.L. 750.316(1)(c); and second degree murder, M.C.L. 750.317.
32. Michigan’s Code of Criminal Procedure provides that a person who aids or abets a murder is punishable as if that person had directly committed the offense. M.C.L. 767.39.
33. The punishment for first degree murder, whether it be premeditated, felony murder or aiding and abetting a murder, is mandatory imprisonment for life. M.C.L. 750.316(1). The punishment for second degree murder is imprisonment for life, or any term of years, at the court’s discretion. M.C.L. 750.317.
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34. Each of the Plaintiffs’ judgments of conviction and sentence states that the Plaintiff was sentenced to imprisonment for life for a conviction under M.C.L. 750.316.
35. Michigan law grants the Department of Corrections’ Parole Board the authority to release individuals sentenced to life if a prisoner meets certain specified criteria. M.C.L. 791.234.
36. Since 2008, the Michigan Parole Board has had the authority to grant release to all individuals sentenced to life imprisonment except for individuals serving a life sentence for a conviction under M.C.L. 750.316.
37. Plaintiffs, who are all serving life sentences for convictions under M.C.L. 750.316 are excluded from the Parole Board’s authority and jurisdiction. M.C.L. 791.234(6). Punishment of Juveniles in Michigan
38. Seventeen-year-old minors are treated as adults in Michigan for criminal prosecution purposes. Michigan is one of only seven states that automatically subjects seventeen-year-olds to adult charges and punishment of a life sentence without parole for first degree murder.
39. Michigan’s laws and procedures for the trial and punishment of juveniles under the age of seventeen who committed homicide offenses have been amended on two occasions since 1980, resulting in three categories of Plaintiff juveniles depending on the date that they were sentenced.
40. Irrespective of the scheme for charging, trial, sentencing and process for homicide crimes, all of the Plaintiffs were given a punishment of life without adequate consideration of their juvenile status, are not subject to the jurisdiction of the Parole Board and have never otherwise been afforded a meaningful opportunity for release.
41. Prior to 1988, when a child under the age of seventeen committed a homicide offense, charges were automatically filed in juvenile court. If the juvenile was fifteen or sixteen-years-old, a
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prosecutor could request that the juvenile court waive its jurisdiction over the case and transfer it to the circuit court where the juvenile would be tried and sentenced as an adult. No child under fifteen years of age could be subject to this judicial waiver procedure. M.C.L. 712A.4 (1972).
42. Under this scheme, if a juvenile was transferred to adult court following a waiver hearing and convicted of a violation of M.C.L. 750.316 – including felony murder or aiding and abetting murder, the judge was required to sentence the juvenile to imprisonment for life in an adult prison.
43. Plaintiffs Henry Hill, Jemal Tipton and Damion Todd were all charged, tried and sentenced under this pre-1988 scheme. They were treated as adults at all stages in the process, and sentenced to life imprisonment without consideration of their juvenile status. The Michigan Parole Board does not have jurisdiction to consider them for parole and none of them have been afforded a meaningful opportunity to obtain release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
44. In 1988, the juvenile statutes were amended, eliminating the requirement of judicial waiver hearings and rulings prior to charging juveniles as adults for criminal prosecution. This amendment permitted a prosecutor to bypass the juvenile court system entirely for certain specified crimes, including crimes under M.C.L. 750.316, and to file charges in adult court against children who were fifteen or sixteen years old. Juvenile court judges no longer had authority to individually evaluate a child and exercise discretion, and no waiver hearings were required prior to the charging and trial of a juvenile as an adult.
45. After 1988, children between the ages of fifteen and seventeen who were automatically charged, tried and convicted as an adult for homicide related offenses would then receive one of two limited punishment choices: the court could either sentence the child as an adult
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with a mandatory punishment of incarceration for life, or sentence the child as a juvenile, requiring release at age twenty-one.
46. Under this post-1988 scheme, Plaintiffs Bobby Hines, Kevin Boyd, Bosie Smith and Jennifer Pruitt were all automatically waived to adult court, charged as adults, tried and sentenced to life imprisonment. The Michigan Parole Board does not have jurisdiction to consider them for parole and none of them have been afforded a meaningful opportunity for release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
47. In 1996, the juvenile statutes were again amended to expand the automatic waiver of juveniles to adult court and to include fourteen-year-olds. Since 1996, and continuing to date, all juveniles between the ages of fourteen and eighteen are automatically charged and tried as adults for homicide offenses. M.C.L. 764.1(f)(1).
48. The 1996 amendments also took away the limited judicial discretion for sentencing juveniles tried as adults, making an adult sentence mandatory for all juveniles charged and tried as adults for certain crimes, including homicide offenses. M.C.L. 769.1(i).
49. Since 1996, all juveniles between the ages of fourteen and eighteen are automatically charged, tried and sentenced in the same way as adults for homicide offenses. The age of the individual cannot be considered during the charging, trial or sentencing phase. M.C.L. 769.1(1)(g) and (h).
50. Plaintiffs Matthew Bentley, Keith Maxey, Giovanni Casper, Jean Carlos Cintron, Nicole Dupure and Dontez Tillman were sentenced to life imprisonment under this post-1996 scheme. There was never any consideration of their juvenile status. The Michigan Parole Board does not have jurisdiction to consider them for parole and none have been afforded a meaningful
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opportunity for release in light of their reduced culpability at the time of their offenses, and their unique capacity for change and rehabilitation as compared to adult offenders.
PLAINTIFFS’ INDIVIDUAL FACTUAL ALLEGATIONS Henry Hill
51. One evening in 1980, Henry Hill, aged sixteen, went with two of his cousins, Larnell Johnson and Dennis Johnson, to a park in Saginaw, Michigan. There they saw Anthony Thomas, a young man with whom Henry’s cousins had prior conflicts. Henry’s cousins shot at Anthony Thomas. Henry was reported to have been shooting into the air before he fled the park with his cousin Dennis. His other cousin, Larnell Johnson, remained, shooting and killing Anthony Thomas.
52. At the time of the incident, Henry had been attending Saginaw High School where he had undergone psychological testing and found to have a verbal IQ of 69, a performance IQ of 58, and a full scale IQ of 61. He had a reading word recognition level of 3.6 grade level, a spelling performance at a 3.0 grade level, and an arithmetic ability at 3.3 grade level. The psychologist who conducted the tests concluded that these results showed signs of a suppressed mental age, and that his general insight and maturity level was that of a pre-adolescent.
53. Henry was charged for his participation in the Anthony Thomas death with aiding and abetting first degree murder. Based on this charge, the juvenile court waived its jurisdiction over Henry and one of his co-defendants, sixteen-year-old, Dennis Johnson. Both stood trial as adults.
54. Following his trial, Henry was convicted by a jury of first degree aiding and abetting murder.
55. Henry’s pre-sentence investigation report notes that his intelligence classification was in the mentally defective range with an academic ability at the third grade level. In the examiner’s
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opinion Henry had the maturity of a nine-year-old child and was motivated by instant gratification, and the desire to be accepted and secure.
56. The trial court had no discretion to consider Henry’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Henry as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Henry for parole. At no stage in his prosecution was Henry’s juvenile status considered and, following his conviction, he has never been afforded a meaningful opportunity for release based on his demonstrated maturity and rehabilitation.
57. Henry has exhausted all of his post-conviction appellate options. In 2009, he filed a petition for clemency, which is pending.
58. Henry Hill is now forty-six years old and has served nearly thirty years in prison for his actions. He has exhausted all prison educational programs and resources available to him. He works and participates in his bible study group for which he consistently receives excellent reports. Henry has not had a misconduct citation for over a decade and has a custody level II, the lowest possible for his sentence. He is regarded as a model prisoner.
Jemal Tipton 59. In 1987, Jemal Tipton, then aged seventeen, participated in a robbery at the Hunter’s Ridge Condominium Complex in Farmington Hills, Michigan with two adults, Nellie McInnis, a forty-six-year-old acquaintance of his mother, and his older brother, Anthony Parks. 60. Nellie McInnis drove Jemal and Anthony to where the robbery took place. She gave Jemal a .22 caliber pistol and identified an acquaintance of hers, Edward Chapman, as the person to rob.
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61. Armed with the .22 pistol, Jemal approached Edward Chapman and demanded his valuables. A scuffle ensued and the gun went off twice. One shot struck Edward Chapman, killing him.
62. Jemal had a difficult upbringing in which he was shuttled between family members and friends during his mother’s stays in jail or drug treatment facilities before ending up in the care of Nellie McInnis, a family acquaintance with a long criminal history.
63. Under Michigan laws then in force, Jemal was automatically charged as an adult with felony murder. He was tried as an adult, and after trial he was convicted and given the mandatory adult sentence for the offense, life in an adult prison.
64. In sentencing Jemal, the trial court had no discretion to consider his juvenile status. 65. Michigan law required that the trial court punish Jemal as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. 66. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Jemal for parole. At no stage in his prosecution was his juvenile status considered and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation. 67. Since his incarceration, Jemal has taken every opportunity to rehabilitate himself. He obtained his GED and electrician certification. He currently earns three dollars a day doing electrician work detail and mentors younger prisoners, encouraging them to continue their education while in prison. 68. Jemal has exhausted all of his post-conviction appellate options. 69. Since his incarceration, Jemal has been given a total of eight misconduct tickets, the last one occurring over twenty years ago. Jemal has now served twenty-two years in adult prison.
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Damion Todd 70. In 1986, Damion Todd was a seventeen-year-old entering his senior year in high school. On a Saturday night in August, Damion and three friends drove to an end of the summer party in Detroit, Michigan. A short while after they had left the party and were driving home, a group of men drove by and shot at them in their car. Convinced that they were from the party, one of Damion’s companions suggested they get his gun and look for the men. 71. They drove back to the party where they were again shot at. Damion’s friend then gave him a shotgun, and told him to fire back. Damion asserts he intended only to fire at the group that shot at them to scare them. However, a young woman who was at the party, Melody Rucker, was struck and died shortly thereafter. 72. At the time of the incident, Damion was a senior at Henry Ford High School in Detroit. He was captain of his football team and had received Letters of Intent from several Division I AA football schools. Damion had no prior involvement in any juvenile or adult criminal proceedings. 73. Damion had volunteered for two summers with the Detroit Police Cadets, a member of the Police Athletic League sports teams, and he was active in his church choir. He worked parttime in a family restaurant in Southfield, as well as in his family’s business. 74. Damion was automatically charged and tried as an adult with assault with intent to kill, first degree murder and felony firearm possession. Damion was subsequently convicted on these charges and sentenced to life on the murder charge, 100 to 200 years on the assault conviction and two years for felony firearm possession. 75. The Michigan Department of Corrections’ psychologist’s intake report noted that persons with profiles as similar to Damion’s “tend to be persons with very good institutional and
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post-release adjustment” and that he “could have been dealt with just as efficiently and less expensively through probation in the community,” as “by the time Mr. Todd reaches his early 30’s, he would have matured out of a youthful exuberance and indiscretions which resulted in the needless and tragic death of an innocent female bystander.”
76. Damion’s sentence for the assault with intent to murder was reversed in 1996 as being excessive and an abuse of discretion. He was resentenced to ten to thirty years on this charge. His mandatory life sentence for his conviction under M.C.L. 750.316, however, remains.
77. The trial court had no discretion to consider Damion’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Damion as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Damion for parole. At no stage in his prosecution was Damion’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
78. Damion has exhausted all of his post-conviction appellate options. In 2010, he filed a petition for clemency, which was denied.
79. Since his incarceration, Damion has obtained certificates in food technology, custodial maintenance, officiating certificates for basketball, volleyball, baseball and Jaycees (a worldwide organization that does humanitarian acts such as donating toys to children). He is a member of the Prisoners of Christ Church and in 1987 he received his GED. Damion has received only four misconduct tickets in the twenty-four years he has been incarcerated. He acts as a mentor to young prisoners and is considered by prison officials to be a respectful, thoughtful adult who does his job with excellence and with no management problems.
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Bobby Hines 80. In 1989, fifteen-year-old Bobby Hines went with nineteen-year-old Christopher Young and sixteen-year-old Derius Woolfolk to confront James Warner about Warner’s alleged involvement in the theft of a jacket from a boy in the neighborhood. The boy had reported that James Warner had threatened him and taken his jacket for money owed on a drug deal. 81. When the young men saw Warner, Derius Woolfolk fatally shot him and wounded another man he was with. Bobby, who touched neither the weapon nor the victims, was charged as an adult with felony murder. He was tried and subsequently convicted on this charge and sentenced to life imprisonment. 82. The incident occurred in the summer of 1989 shortly after Bobby had completed his eighth grade education at Brooks Middle School in Detroit, Michigan, where he had regular attendance and average grades. 83. Bobby’s co-defendants – Christopher Young, who provided the weapon and sixteenyear-old, Derius Woolfolk, who fatally shot the victim – were both convicted of second degree murder and are serving parolable life sentences. 84. Bobby was automatically charged as an adult under Michigan’s post-1988 laws without consideration of his juvenile status, mental maturity or relative culpability. He was tried as an adult and upon conviction the court had to choose between punishing him as an adult or releasing him at age twenty-one. 85. The pre-sentence investigation report set forth an evaluation of and plan for Bobby stating that there was no dispute as to what occurred but that due to the “seriousness of the present offenses this writer feels the services and facilities in the adult program would offer more time and circumstance to rehabilitate this defendant. For these reasons and for the best interest of the public
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welfare and security, it is recommended this defendant be sentenced to a period of incarceration in an adult facility.”
86. The court had no discretion but to sentence Bobby to “a period of incarceration in an adult facility.” Michigan law required that the trial court either sentence him as a juvenile to be released at age twenty-one or sentence him as an adult to a mandatory sentence of life. Bobby was sentenced to serve “the rest of [his] natural life to hard labor and solitary confinement.” Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Bobby for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
87. Bobby is assigned to the lowest custody level available for his sentence. He has now served twenty-one years in prison on a life sentence.
Kevin Boyd 88. In 1994, Kevin Boyd, then aged sixteen, was convicted of first degree premeditated murder for his role in the murder of his father, Kevin Boyd, Sr. by his mother, Lynn Boyd. 89. Kevin’s mother and father had been separated for six years on August 5, 1994, when Kevin’s mother and her lover asked Kevin to give them the keys to his father’s apartment, telling him they were going to kill his father. Kevin gave his mother the keys and did not report his mother’s threat to the police. The next day Kevin went to his father’s apartment, found him murdered and immediately called the police. 90. Four months later, on October 18, 1994, Kevin’s mother confessed to the murder and was arrested. Kevin was also arrested at this time. He was interrogated without counsel or a guardian present.
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91. Kevin admitted to having given the keys to his mother knowing that she was planning to murder his father and therefore takes responsibility for his role in the murder. He maintains he did not participate in the actual stabbing incident.
92. Kevin was automatically charged under Michigan’s post-1988 laws and tried as an adult without a judicial waiver hearing.
93. By the time of his sentencing Kevin had turned nineteen, giving the court a difficult choice: to sentence Kevin as a juvenile with mandatory release in two years or to sentence him as an adult which would result in a mandatory life sentence.
94. Despite positive reviews for Kevin from supervisors at the juvenile facility where he was detained pending trial and sentencing, opinions that he was nonviolent and unlikely to be a repeat offender and his involvement being based on his youthful desire to please his mother, it was felt that three years would be inadequate for the juvenile system to fully rehabilitate Kevin. Kevin was therefore sentenced to life imprisonment.
95. Kevin appealed and the Michigan Court of Appeals reversed his sentence, finding that the trial court had abused its discretion in sentencing Kevin as an adult, as Kevin was “a model prisoner, an excellent student, amenable to treatment, not a danger to the public and remorseful for his actions.” Four months later, with little explanation, the appeals court reversed itself.
96. Michigan law required that Kevin be sentenced to mandatory life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Kevin for parole and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
97. Kevin has subsequently exhausted all of his post-conviction appellate options. His petition for clemency is pending.
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98. During his incarceration, Kevin has received his GED, several trade certificates and is considered a model prisoner. Kevin has now served fourteen years in adult prison and is a Level II prisoner, the lowest custody level for his sentence.
Bosie Smith 99. In 1992, Bosie Smith, then aged sixteen, was involved in the stabbing death of an adult male during a fight. 100. Although the adult male who initiated the fight was eight years older and twice the size of the 103 pound Bosie, the jury rejected Bosie’s claim of self-defense and convicted him on the first degree murder charge. 101. Bosie was born with fetal alcohol syndrome. He was abandoned by both his parents and was raised by his maternal grandmother. At the time of his conviction, he had completed schooling through the eighth grade. Bosie was a member of his school’s wrestling team and local church youth group. 102. Bosie was tried as an adult under Michigan’s automatic transfer laws. He was charged and tried as an adult without a judicial waiver hearing or any consideration of his juvenile status, mental age or maturity. 103. Both the case evaluator and the judge were troubled by the idea of sentencing Bosie to life imprisonment. Nevertheless, the case evaluator recommended adult sentencing because the only other option was four years in the juvenile system. The trial judge stated that he would sentence Bosie to a term of years if he had that option but that he was bound by the statute, which required a mandatory life sentence. 104. On appeal, the conviction was affirmed but the case was remanded upon a finding that the trial court abused its discretion in sentencing Bosie as an adult. The Court of Appeals
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ordered Bosie to undergo psychological testing to assist the trial court in its sentencing. However, the Supreme Court reversed the Court of Appeals remand order, finding that there was no clear error or abuse of discretion by the trial court.
105. Michigan law required that the trial court sentence Bosie to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Bosie for parole and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
106. Since his incarceration, Boise has completed his GED and has been involved in numerous prison groups including, Commitment to Change, Career Scope, 2nd Chance at Life, and Retired Greyhound Prison Program. Boise has also earned certificates pertaining to “Communication Skills,” “Diversity,” “Critical Thinking,” “Prisoner Rape Elimination Act Education,” and “Blood Bourn.” Presently, Bosie is in the process of completing training in custodial maintenance, conflict resolution, and substance abuse counseling training.
107. Bosie has exhausted all his post-conviction appellate options. 108. Bosie has been imprisoned in an adult facility for seventeen years and throughout this time has maintained Level II custody, the lowest allowed for his offense.
Jennifer Pruitt 109. In 1992, Jennifer Pruitt, then aged sixteen, participated in a plan to rob one of her neighbors in Pontiac, Michigan. 110. Jennifer was a runaway from sexually and physically abusive parents when she committed her crime. She had no prior criminal record.
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111. At the time of the robbery, Jennifer was staying with Donnell Miracle, a twentythree-year-old neighbor. While Miracle initiated the robbery plan, Jennifer was the one who singled out the neighbor, Elmer Heichel, as the person to rob.
112. Elmer Heichel let Jennifer and Miracle into his house at 1:30 a.m. on August 30, 1992. Jennifer went to use the bathroom and then went into the back room to steal the neighbor’s wallet. When she came out of the room she witnessed Miracle stabbing Elmer Heichel.
113. Jennifer did not participate in the stabbing. She also reported the incident and her involvement to the police that same day, leading to the subsequent arrest of Miracle.
114. The trial of Jennifer Pruitt was delayed. Jennifer’s remorse was so strong that she became self-injurious and was committed to a psychiatric facility where she was deemed incompetent to stand trial for over a year.
115. Under Michigan law, Jennifer was automatically charged as an adult with first degree murder and armed robbery. She was convicted of felony murder and sentenced as an adult based upon the pre-sentence investigation report’s assertion that the adult facilities would afford greater opportunities for her rehabilitation. However, the report failed to acknowledge that her rehabilitation and eventual return to society was impossible because under Michigan law, the court had no discretion to give her any sentence other than life in prison.
116. Given the nature of the offense for which Jennifer was convicted, the Michigan Parole Board does not have jurisdiction to consider her for parole, and she has never been afforded a meaningful opportunity for release based on her juvenile status and her demonstrated maturity and rehabilitation.
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117. During Jennifer’s initial years in adult prison, she was raped by two male correctional officers. She has also undergone counseling to assist her recovery from post-traumatic stress disorder.
118. Jennifer has exhausted all of her post-conviction appellate remedies. Her petition for clemency was denied.
119. Jennifer has now served eighteen years of a mandatory sentence of life imprisonment. In the last ten years, Jennifer completed her GED and all recommended rehabilitation programs offered her. Jennifer maintains a Level II security classification, the minimum for her offense, and she has been described as an “inmate role model and excellent worker, dependable, honest, sincere and reliable.”
Matthew Bentley 120. In 1997, Matthew Bentley was a fourteen-year-old ninth grader at Bad Axe High School in Michigan when he decided to break into a house in his neighborhood. 121. Matthew was the youngest child of his mother and father’s second marriage, and he was five when his father was incarcerated for sexual abuse of his sister. He was then raised by his mother. Matthew had a difficult time focusing at school, and in grade school he was diagnosed with Attention Deficit Disorder. He was prescribed Ritalin and he took the medication until his mother could no longer afford it. He was an active member of the Boy Scouts, young marines, and his local church. He helped with his brother-in-law’s business, swam, wrote poetry, played basketball and babysat his nieces and nephews. 122. Matthew began drinking alcohol at the age of eleven and using marijuana at age thirteen. In 1996, he was prescribed Zoloft for depression and Dexedrine for hyperactivity. His use of drugs and behavior resulted in foster care placement shortly before he committed his offense.
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123. On the day of the incident, Matthew left school early and broke into a home he thought was unoccupied. While he was in the house, he found the owner’s gun, which he took with him while rummaging through the house for other valuables. When unexpectedly confronted by the owner of the house, Matthew shot and fatally wounded her before fleeing the scene.
124. Matthew was arrested the same day and, under the newly enacted Michigan law lowering the age for automatic waiver to adult prosecution to fourteen, was charged as an adult with felony murder, home invasion, and felony firearm possession.
125. Tried as an adult, Matthew was convicted of all three offenses and given the mandatory sentence of life imprisonment. The judge stated at his sentencing hearing that if he had a choice he would have given Matthew a term of years which would have afforded him the opportunity for release in fifteen years.
126. In addition to lowering the age for automatic adult prosecution to fourteen, the 1996 laws under which Matthew was charged and sentenced eliminated any discretion to consider Matthew’s juvenile status at sentencing. Matthew was charged, tried, convicted and sentenced without any discretion to consider his juvenile status, mental age or maturity. Michigan law required that the trial court punish Matthew as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Matthew for parole.
127. At no stage of his criminal prosecution and sentencing was Matthew’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
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128. Since being imprisoned, Matthew has earned his GED and a trade certificate in custodial maintenance. He acts as a mentor and a guardian to incoming young prisoners who are targeted by older sexually predatory inmates.
129. Matthew has exhausted his state appellate options and has filed a clemency petition. 130. Matthew has now served thirteen years in prison. He is currently a Level II custody level prisoner, the lowest allowed for his offense.
Keith Lenard Maxey 131. In 2007, Keith Maxey was sixteen when he accompanied two adult acquaintances to meet some men to buy marijuana. Three people were shot during the drug deal, including Keith. Keith and one of his co-defendants were subsequently charged with attempting to rob the drug dealers and in the death of one of them, who later died from his wound. 132. Keith’s co-defendant, Tyrell Adams, a twenty-year-old who shot the victims and committed the murder, pled to second degree murder and is serving a term of years. The second codefendant Antoine Bailey, who was also a twenty-year-old, was charged and convicted of assault with intent to commit murder and sentenced to fifteen years. 133. Keith, the only juvenile involved in the incident, was automatically charged and tried as an adult and convicted of first degree felony murder. 134. Keith was then sentenced as an adult to a mandatory life sentence. 135. Keith appealed his conviction and sentence but the Court of Appeals affirmed the lower court’s order. His application for leave to appeal to the Michigan Supreme Court was denied. 136. The 1996 laws under which Keith was charged and sentenced eliminated any discretion to consider Keith’s juvenile status at sentencing. Keith was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law
25

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required that the trial court punish Keith as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Keith for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
137. Keith has exhausted his state appellate options. 138. Keith has been imprisoned for two years. During this time he has not received any misconduct citations, is taking classes to complete his GED and is classified to the lowest security level allowed for his offense.
Giovanni Casper 139. In 2006, Giovanni Casper was in the 10th grade and had just turned seventeen when he attended a social event at a local roller rink with his friends. A fight broke out at the roller rink, between Giovanni and his friends and another group of teenagers, which was broken up by employees at the roller rink. Another fight began when Kenneth Dear approached Giovanni and began swinging punches. 140. The testimony at trial was that Giovanni was standing in front of Kenneth Dear at the roller rink when Dear suffered a single and fatal gunshot wound to the chest. The prosecution argued that although no one saw a gun in Giovanni’s hand his proximity to Mr. Dear and the testimony of prior bad blood between the two teens was sufficient to sustain a conviction. 141. Giovanni was automatically charged and tried as an adult and convicted of firstdegree pre-meditated homicide. 142. Giovanni was sentenced as an adult to a mandatory life sentence.
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143. Giovanni maintains his innocence and appealed his conviction to the Michigan Court of Appeals which affirmed his sentence on January 20, 2009. His Application for leave to appeal to the Michigan Supreme Court was denied on June 23, 2009.
144. The laws under which Giovanni was charged and sentenced eliminated any discretion to consider his juvenile status at sentencing. Giovanni was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Giovanni as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Giovanni for parole, and he will never be afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
145. Giovanni has exhausted his state appellate options. 146. Giovanni has been imprisoned for over five years. During this time he has completed his GED and is classified to the lowest security level allowed for his offense.
Jean Carlos Cintron 147. Jean Carlos Cintron was sixteen years old in 2008 when he went with his older brother and two of his brother’s friends to the house of Laval Crawford, a man alleged to have beaten and robbed Jean at gun point earlier in the day. 148. Laval Crawford and a group of his friends returned to the home armed with guns. Jean, with his brother and two co-defendants, ran out of the house, shooting their guns. Jean’s codefendant Diego Galvan was convicted of fatally shooting Laval Crawford and sentenced to life for first-degree premeditated murder. Jean’s older brother was also convicted of first-degree murder and sentenced to life.
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149. Jean, the only juvenile involved in the incident, was automatically charged as if he were an adult with felony murder. He was tried as an adult, without any consideration of his juvenile status, and convicted of felony murder and received the mandatory punishment of life without parole sentence.
150. Prior to this offense, Jean was an 11th grade student, in excellent standing, at Pontiac Central High School, with no prior juvenile, misdemeanor or felony offenses. .
151. At no stage of his criminal proceeding was Jean’s juvenile status considered, and he will never be afforded a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Because of the nature of his offense, the Michigan Parole Board has no jurisdiction to consider Jean for parole.
152. Jean exhausted his state appellate options when the Michigan Supreme Court denied his appeal in March, 2011.
153. Jean has already earned his GED and is currently a level II custody prisoner, the lowest level allowed for his offense.
Nicole Dupure 154. In 2004, Nicole was seventeen when her older boyfriend, William Blevins, was charged with robbery and murder of an elderly woman, Shirley Perry, in Macomb County, Michigan. 155. Initially, William Blevins admitted that he had acted alone in stabbing Shirley Perry but later, in exchange for a plea to second degree homicide, Blevins testified that Nicole aided and abetted the robbery and homicide William Blevins, the individual who actually committed the murder, is eligible for release in 2024.
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156. Nicole Dupure was charged as an adult and convicted of first degree homicide under alternate theories of felony murder and first degree premeditated murder. She was given the mandatory sentence for an adult, life without possibility of parole and incarcerated in an adult prison.
157. Nicole Dupure had no prior contact with the criminal justice system, juvenile record or misdemeanors.
158. At no stage of her criminal prosecution and sentencing was Nicole’s juvenile status considered, and she has never been afforded a meaningful opportunity for release based on this status and her demonstrated maturity and rehabilitation. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Nicole for parole.
159. Since her imprisonment, Nicole has participated in all programs available to her and she has maintained an excellent work record.
160. The Court of Appeals affirmed Nicole’s first degree conviction and dismissed her second degree conviction. She has not yet filed an appeal in the Michigan Supreme Court.
161. Nicole is currently a Level II custody level prisoner, the lowest allowed for her offense.
Dontez Tillman 162. Dontez Tillman was a fourteen year old middle school student who had just finished the seventh grade when he was arrested and charged as an adult with felony murder in Oakland County, Michigan, in 2008. 163. Dontez was subsequently convicted of felony murder for his role in the beating of a homeless man, Wilford Hamilton, who died four days later as a result of his injuries.
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164. Dontez, at fourteen years old, was charged as if he were an adult, tried and convicted at the age of fifteen. Dontez was then sentenced as if he were an adult and given a mandatory sentence of life without possibility of parole in adult prison.
165. Dontez’ co-defendants included Darrin Higgins, a 15 year old who was charged with the beating deaths of two men. Darrin pled to two charges of second degree murder and received a term of year’s sentence.
166. Thomas McCloud, another co-defendant, was also fourteen and was charged, tried, convicted and sentenced as if he were an adult to life without possibility of parole.
167. At no stage of Dontez’ criminal prosecution and sentencing was his juvenile status considered, and he will never be afforded a meaningful opportunity for release based on his demonstrated maturity and rehabilitation. Because of the nature of the offense, the Michigan Parole Board has no jurisdiction to consider Dontez for parole.
168. Since being imprisoned, Dontez has not been provided with any education and is on the waiting list for a GED. He has been given a job and attends prayer groups.
169. Dontez currently is a Level II custody level prisoner, the lowest allowed for his offense.
GENERAL FACTUAL ALLEGATIONS 170. Each of the Plaintiffs committed their offenses before the age of eighteen. 171. Each of the Plaintiffs was sentenced as an adult and was given the mandatory punishment imposed on adults for first degree murder, life imprisonment.
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172. Under current Michigan law, the Parole Board does not have jurisdiction over any of the Plaintiffs because they are serving a life sentence for a conviction of first degree murder under M.C.L. 750.316. No one convicted of such an offense can be considered for parole.
173. Under Michigan’s scheme for punishing juveniles as adults for first degree homicide offenses, each of the Plaintiffs cannot be considered for parole, and none of them have been afforded a meaningful opportunity for release based on their juvenile status and demonstrated maturity and rehabilitation.
174. Plaintiffs, who were all juveniles at the time they committed their offenses, did not have the same maturity and sense of responsibility as adults.
175. The State of Michigan recognizes this relative lack of maturity and responsibility based on their age in other areas of the law by prohibiting them from voting, entering into valid contracts, serving on juries, joining the armed forces, smoking tobacco, marrying without parental consent, leaving school, working full time, or applying for a driver’s license without first undergoing youth-specific driver education classes.
176. Plaintiffs, as juveniles, were more vulnerable to adult influences and susceptible to peer pressure than adults.
177. Plaintiffs, as juveniles, were more likely to act impetuously without regard for consequences as compared to adults.
178. Plaintiffs, as juveniles, have a greater capacity for change, growth and rehabilitation than adults.
179. Plaintiffs’ ineligibility for parole discounts and renders immaterial maturity, good behavior, character and rehabilitation for purposes of consideration of release.
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180. The punishment schemes under which the Plaintiffs were imprisoned do not provide for a meaningful opportunity to obtain release upon demonstration of maturity and rehabilitation.
181. The imprisonment of Plaintiffs for life without affording them a meaningful opportunity for release once they have grown and matured fails to take into consideration whether Plaintiffs’ actions were as a result of transient immaturity and whether they have been rehabilitated.
182. Plaintiffs’ youth means that they will be punished more severely than adults given the same sentence because they will serve more years and a greater percentage of their lives in prison than adult offenders.
183. There is no legitimate penological justification for imposing life sentences on Plaintiffs without also affording them a meaningful opportunity for release because such a denial fails to serve any of the recognized objectives of punishment.
184. Michigan is one of only two states in the United States that require that juveniles convicted of first degree homicide offenses be given the harshest adult penalty available in the state without any consideration of lesser culpability or discretion to impose lesser punishment based upon juvenile status.
185. Michigan’s system accounts for over 15% of all juveniles in the United States serving a sentence of life without possibility of parole.
186. The majority of states that allow for the imposition of life sentences without parole on juveniles, provide for discretion at some stage of the proceeding, and require consideration of the individual’s age, maturity and lesser culpability prior to charging and sentencing.
187. Michigan is in the minority of states in imposing this harshest punishment on juveniles who aid and abet, but do not themselves commit, a homicide.
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188. Of the two states that impose the harshest sentence available for adult criminal behavior as a mandatory punishment, Michigan has over six times the number of youth serving this sentence.
189. Michigan is in the minority of states that automatically impose this punishment on juveniles as young as fourteen.
190. The United States is the only country in the world that permits and imposes a life without possibility of parole sentence on persons who commit their offense prior to the age of eighteen.
191. The United Nations Human Rights Committee identified this practice as noncompliant with Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).
192. The United States is a party to the ICCPR, but has reserved the right to treat juveniles as adults only in “exceptional circumstances.”
193. Michigan’s laws do not constitute such an exceptional circumstance, as they presumptively treat all juveniles involved in homicide offenses as adults and sentence all juveniles as if they were adults for such involvement.
194. In December 2006, the United Nations General Assembly passed a resolution, 185-1 (United States), calling upon all nation states to abolish life imprisonment without possibility of release for those persons below eighteen years of age at the time they committed the offense.
195. In 2008, the United Nations Committee on the Elimination of Racial Discrimination in its consideration of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination found that the sentencing of juveniles violated key provisions of the Convention, and called upon the United States to end the practice and to review the situation of prisoners currently serving such sentences.
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196. Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990), ratified by every member state except the United States and Somalia, explicitly prohibits the imposition of “life imprisonment without the possibility of release … for offenses committed by persons below eighteen years of age.”
CAUSES OF ACTION FIRST CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT) 197. Plaintiffs incorporate by reference paragraphs 1 through 196 above as if set forth fully herein. 198. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release upon demonstrating their maturity and rehabilitation constitutes punishment with no legitimate penological justification, and as such constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as incorporated by the Fourteenth Amendment and enforceable through 42 U.S.C. § 1983. 199. Michigan’s statutory scheme, which denies Plaintiffs a meaningful opportunity for release, violates the Eighth Amendment by failing to recognize the difference in moral culpability between adults and juveniles who commit first degree homicide offences under M.C.L. 750.316. 200. Michigan’s statutory scheme, which denies Plaintiffs a meaningful opportunity for release, results in juveniles receiving a longer sentence than an adult for the same offense, in violation of the Eighth Amendment to the United States Constitution. 201. M.C.L. 791.234(6), which strips the Michigan Parole Board of jurisdiction over prisoners serving a life sentence for offenses under M.C.L. 750.316, is unconstitutional as applied to Plaintiffs.
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SECOND CAUSE OF ACTION (DUE PROCESS)
202. Plaintiffs incorporate by reference paragraphs 1 through 201 above as if set forth fully herein.
203. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release upon demonstrating their growth, maturity and rehabilitation constitutes a denial of due process of law in violation of the Fourteenth Amendment to the United States Constitution as enforceable through 42 U.S.C. § 1983.
204. Michigan’s statute depriving the parole board of jurisdiction over prisoners serving life sentences for certain offenses committed before their eighteenth birthday constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
205. M.C.L. 791.234(6), which denies persons, convicted of homicide offenses under M.C.L. 750.316, any opportunity to demonstrate their maturity and rehabilitation, is unconstitutional as applied to Plaintiffs.
THIRD CAUSE OF ACTION (DUE PROCESS)
206. Plaintiffs incorporate by reference paragraphs 1 through 205 as if set forth fully herein.
207. Michigan’s statute that automatically waives juveniles to adult court for trial and sentencing, without any consideration of juvenile status or discretion to recognize their juvenile status for purposes of imposing the harshest punishment constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
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208. Michigan law requiring the imposition of the harshest adult punishment on a juvenile, based on the nature of the offense without affording them an opportunity or a hearing to demonstrate their lesser culpability at the time they committed the offense and their maturity and rehabilitation, constitutes a violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
209. Michigan’s statutory scheme which requires that juveniles as young as fourteen years of age who are charged with certain felonies to automatically be tried as adults and, if convicted, to be sentenced without discretion to life without parole, denies Plaintiffs due process of law in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to provide for any hearing to consider their juvenile status and its relationship to their culpability and potential for rehabilitation.
210. Michigan’s statutory system that punishes juveniles who are convicted of homicide offenses under M.C.L. 750.316 with a life sentence, and without providing an opportunity to demonstrate that they lack the requisite intent necessary for such a conviction violates Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
FOURTH CAUSE OF ACTION (CUSTOMARY INTERNATIONAL LAW) 211. Plaintiffs incorporate by reference paragraphs 1 through 210 as if set forth fully herein. 212. Defendants’ current and continuing failure to afford Plaintiffs a meaningful opportunity for release, based on their juvenile status and their demonstrated maturity and rehabilitation constitutes punishment with no legitimate penological justification, and as such constitutes cruel, inhuman or degrading treatment or punishment in violation of customary
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international law as reflected inter alia in the Universal Declaration on Human Rights, the ICCPR and the U.N. Convention on the Rights of the Child, which extend special measures of protection to children, prohibit life imprisonment without the possibility of release for offenses committed by persons below eighteen years of age and condemn the practice as a form of cruel, inhuman or degrading treatment or punishment.
213. Defendants’ violations of customary international law are actionable pursuant to 42 U.S.C. § 1983 in that customary international law has been held, since the Constitution’s adoption, to be part of the laws of the United States.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray for a judgment against the Defendants and each of them requests that this Court: a. Issue a declaratory judgment that the continued incarceration of Plaintiffs without affording them a meaningful opportunity to obtain release, based on their juvenile status and demonstrated maturity and rehabilitation, violates Plaintiffs’ rights guaranteed by the United States Constitution, statutory law, and customary international law; b. Issue a declaratory judgment that M.C.L. 791.234(6), as applied to Plaintiffs, violates the Eighth and Fourteenth Amendments to the United States Constitution and customary international law; c. Order Defendants to provide Plaintiffs with a meaningful opportunity to obtain release upon them attaining the age of majority and every five years thereafter;
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d. Retain jurisdiction over this action until such time as the Court is satisfied that the unlawful laws, policies, practices, rules, acts and omissions complained of herein have been satisfactorily rectified;
e. Award Plaintiffs attorney fees and costs; and f. Award such other and further relief as seems just and proper.
Respectfully submitted,

DATED: February 1, 2012

/s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
/s/Ronald J. Reosti RONALD J. REOSTI (P19368) Counsel for Plaintiffs 23880 Woodward Ave. Pleasant Ridge, MI 48069-1133 248.691.4200 ron.reosti@gmail.com
/s/Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund
of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org dkorobkin@aclumich.org kmoss@aclumich.org
/s/Steven M. Watt Steven M. Watt Human Rights Program
Ezekiel Edwards Criminal Law Reform Project
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American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 swatt@aclu.org eedwards@aclu.org
CERTIFICATE OF SERVICE I hereby certify that on February 1, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via U.S. Mail to all non-ECF participants.
/s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
39

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, and KEITH MAXEY,

Plaintiffs,

Case No. 10-14568

v.
RICK SNYDER, in his official capacity as Governor of the State of Michigan, RICHARD MCKEON, in his official capacity as Interim Director, Michigan Department of Corrections, BARBARA SAMPSON, in her official capacity as Chair, Michigan Parole Board, jointly and severally,

Hon. John Corbett O’Meara

Defendants. ______________________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS Before the court is Defendants’ motion to dismiss or for summary judgment, filed February 28, 2011. Plaintiffs submitted a response on April 1, 2011; Defendants filed a reply brief on April 18, 2011. The court heard oral argument on April 21, 2011, and took the matter under advisement.
BACKGROUND FACTS Plaintiffs Henry Hill, Jemal Tipton, Damion Todd, Bobby Hines, Kevin Boyd, Bosie Smith, Jennifer Pruitt, Matthew Bentley, and Keith Maxey filed this action for declaratory and injunctive relief against Rick Snyder, Richard McKeon, and Barbara Sampson in their official capacities as Governor of the State of Michigan, Interim Director of the Michigan Department of

Corrections, and Chair of the Michigan Parole Board, respectively. Plaintiffs were tried as adults for crimes they committed as juveniles and were sentenced to mandatory life imprisonment without parole. They challenge the constitutionality of M.C.L. § 791.234(6) to the extent it prohibits the Michigan Parole Board from considering the case of any individual who was charged with first degree murder as a juvenile, convicted, and sentenced to life imprisonment.
Michigan law permits – at the discretion of the prosecutor – children who are between the ages of fourteen and sixteen to be tried as adults on first degree murder charges. If convicted as charged, these juveniles are subject to a mandatory life sentence. Michigan law prohibits the state’s Parole Board from ever considering them for parole. See M.C.L. § 791.234(6)(a). Plaintiffs seek a declaration the M.C.L. § 791.234(6)(a) is unconstitutional as applied to those who were convicted when they were under the age of eighteen. Plaintiffs’ complaint, filed pursuant to 42 U.S.C. § 1983, sets forth four counts: Count I, violation of Eighth Amendment; Count II, violation of due process, Count III, violation of due process, and Count IV, violation of customary international law.
LAW AND ANALYSIS Defendants seek dismissal or summary judgment on various grounds, including statute of limitations, res judicata, application of the Rooker-Feldman doctrine, and based upon Heck v. Humphrey, 512 U.S. 477, 481 (1994). Defendants further allege that Plaintiffs’ claims fail as a matter of law. I. Statute of Limitations Defendants contend that all of Plaintiffs’ claims except for Keith Maxey’s are barred by
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the three-year statute of limitations. Courts look to state law to determine both the statute of limitations for § 1983 claims and whether the statute is tolled. See Board of Regents of the Univ. of the State of New York v. Tomanio, 446 U.S. 478, 483-84 (1980). See also M.C.L. § 500.5850(10) (statute of limitations is three years for personal injury claims). Federal law, however, governs when the statute begins to run. Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003). “Under federal law, as developed in this Circuit, the statute of limitations period begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred.” Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007) (citations omitted). In other words, in “determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.” Id. (citation omitted).
Defendants contend that Plaintiffs’ claims are time-barred because they accrued upon their waiver as juveniles to adult court and their sentencing as adults upon conviction, or at the latest upon the expiration of the period for direct appeals. See Cooey, 479 F.3d at 422 (challenge to lethal-injection protocol accrued upon the conclusion of direct review in state case or when protocol was adopted). Plaintiffs argue, however, that the continuing violations theory saves their claims because they seek to remedy an ongoing constitutional wrong that results in an ongoing injury. Under the continuing violations doctrine, a statute of limitations is tolled if: “1) the defendants engage in continuing wrongful conduct; 2) injury to the plaintiff accrues continuously; and 3) had the defendants, at any time, ceased their wrongful conduct, further injury would be avoided.” Hensley v. City of Columbus, 557 F.3d 693, 697 (6th Cir. 2009). The continuing violations doctrine was developed in the context of discrimination law; courts have
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been somewhat reluctant to extend it to § 1983 cases. See Sharpe, 319 F.3d at 267-68 (noting that the Sixth Circuit “employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to § 1983 actions”); cf. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 522 (6th Cir. 1997) (continuing violations doctrine did not save takings claim, but did save due process for deprivation of liberty claim).
Plaintiffs contend that Defendants’ “continuing wrongful conduct” is the continued enforcement of M.C.L. § 791.234(6)(a), which precludes the Michigan Parole Board from considering Plaintiffs for parole. Plaintiffs argue that, as long as the statute remains in effect, they will continue to be deprived of their constitutional rights. Further, if enforcement of the statute were enjoined, Plaintiffs would be given the opportunity to be considered for parole and thus avoid future injury.
The Sixth Circuit rejected a similar argument in Broom v. Strickland, 579 F.3d 553 (6th Cir. 2009). In Broom, a death-row inmate challenged the constitutionality of Ohio’s lethalinjection protocol. Relying on Cooey v. Strickland,479 F.3d 412, 422 (6th Cir. 2007), cert. denied, 128 S.Ct. 2047 (2008), the district court determined that Broom’s § 1983 claim was time barred because the claim accrued “upon conclusion of direct review in the state court or the expiration of time for seeking such review,” or when the lethal-injection protocol was adopted. Id.; Broom, 579 F.3d at 555. On appeal, Broom argued that the continuing violations doctrine saved his claim. The Sixth Circuit stated that “we disagree with Broom’s assertion that the continuing-violations doctrine tolls the statute of limitations because the legal violation continues anew every single day that the same deficient lethal-injection protocol remains in place.” Broom, 579 F.3d at 555 (internal punctuation omitted). The court explained:
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A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation. Broom has not alleged “continual unlawful acts,” but rather challenges the effects from the adoption of the lethal-injection protocol. In essence, he has presented no continued wrongful conduct, only the continued risk of future harm.
Id. (emphasis added; citations omitted). See also Tolbert v. State of Ohio Dept. of Trans., 172 F.3d 934, 940 (6th Cir. 1999) (continued adherence to environmental impact statement not
considered “continuing unlawful acts” or a “series of decisions”).
By adhering to the statute that precludes the state from considering Plaintiffs for parole,
Defendants are not committing continuing unlawful acts. Plaintiffs’ injury – ineligibility for
parole – was discoverable and accrued upon the conclusion of direct review of their convictions
and sentences. Defendants do not consider and reject Plaintiffs for parole on a continuing basis,
such that each decision could be considered an unlawful act. See Tolbert, 172 F.3d at 941
(finding adherence to environmental impact statement not to satisfy requirements for a
continuing violation where “there is no indication that [defendant] revisited the . . . issue at
regular intervals” after adoption). “Passive inaction . . . does not support a continuing violation theory.” Id. See also Lovett v. Ray, 327 F.3d 1181 (11th Cir. 2003) (“Here, the defendants’ act
(deciding not to consider Lovett for parole again until 2006) was a one time act with continued
consequences, and the limitations period is not extended.”).
For these reasons, the court finds that the statute of limitations bars the claims of all Plaintiffs except for Keith Maxey.1
1 Plaintiffs contend that their claims were not cognizable until the Supreme Court decided Graham v. Florida, 130 S.Ct. 2011 (2010). In Graham, the Court held for the first time that sentences of life without parole for non-homicide offenses committed by juveniles violated the Eighth Amendment. Plaintiffs seek to extend the holding of Graham to juveniles convicted of
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II. Res Judicata Defendants also argue that Plaintiffs’ claims are barred by res judicata, in that their
constitutional claims should have been raised in their state criminal cases.2 In Michigan, res judicata “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 have been, resolved in the first.” Adair v. State, 470 Mich. 105, 121 (2004). However, “preclusion . . . may be defeated by showing . . . that there has been a substantial change in the legal climate that suggests a new understanding of the governing legal rules which may require different application.” Franklin Cty. Convention Facilities Auth. v. American Premier Underwriters, Inc., 240 F.3d 534, 550 (6th Cir. 2001) (citation omitted). See also Pike v. City of Wyoming, 431 Mich. 589, 596-97 (1988) (“this Court has held res judicata not to be a bar where a subsequent change in the law altered the legal principles upon which the case was to be resolved”); Socialist Workers Party v. Secretary of State, 412 Mich. 571 (1982).
This is particularly true when the suit involves fundamental constitutional rights. For example, in a voting rights case, the Fifth Circuit observed: “Faced with changing law, courts hearing questions of constitutional right cannot be limited by res judicata. If they were, the Constitution would be applied differently in different locations. But ‘(t)he Constitution is not geared to patchwork geography. It tolerates no independent enclaves.’” Parnell v. Rapides Parish Sch. Bd., 563 F.2d 180, 185 (5th Cir. 1977). See also Precision Air Parts, Inc. v. Avco Corp., 736
homicide who are sentenced to life without parole. Plaintiffs have not cited authority for the proposition that a change in the law tolls or changes the accrual date of the statute of limitations.
2 As a practical matter, the next sections apply only to the remaining Plaintiff, Keith Maxey.
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F.2d 1499, 1504 (11th Cir. 1984) (noting that a change in the law ordinarily does not defeat res judicata, except in those cases involving “momentous changes in important, fundamental constitutional rights.”); Kania v. Fordham, 702 F.2d 475, 476 n.2 (4th Cir. 1983) (“[T]he University, a state instrumentality, should not be allowed to hide behind that judgment with the possible result that individual constitutional liberties are denied. Relitigation of an issue of public importance should not be precluded when there has been ‘an intervening change in the applicable legal context.’”).
Plaintiffs argue that the Graham case changed the legal landscape with respect to the Eighth Amendment and, therefore, res judicata should not apply. The court agrees that Graham represents an evolution in Eighth Amendment jurisprudence that creates the possibility of relief for Plaintiffs on a claim that was previously unlikely to be viable. Accordingly, the court finds that res judicata does not bar Plaintiffs’ claims. III. Rooker-Feldman
Defendants also contend that the Rooker-Feldman doctrine bars Plaintiffs’ claims. The Rooker-Feldman doctrine prohibits a party in a state court proceeding from appealing an unfavorable decision to a lower federal court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005). See also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Under this rule, lower federal courts do not have jurisdiction over cases in which plaintiffs have “essentially invited federal courts of first instance to review and reverse unfavorable state-court judgments.” Exxon, 544 U.S. at 283. The doctrine “is confined to cases . . . brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court
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proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284.
Defendants argue that Plaintiffs are attacking their sentences of life without parole, and thus the underlying state court judgment. Plaintiffs emphasize, however, that they are not challenging their convictions or sentences, but the statute prohibiting the Parole Board from considering their cases. As the United States Supreme Court recently explained, “a state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action.” Skinner v. Switzer, 131 S.Ct. 1289, 1298 (2011) (holding that Rooker-Feldman did not bar § 1983 action challenging the constitutionality of statute used by state court to deny him access to post-conviction DNA testing). Similarly, Plaintiffs’ challenge to the constitutionality of M.C.L. § 791.234(6)(a) is not barred by RookerFeldman. IV. Plaintiffs’ Claims are Cognizable under § 1983
Defendants assert that Plaintiffs’ claims are not cognizable under § 1983. “[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations omitted). See also Heck v. Humphrey, 512 U.S. 477 (1994). The Court in Wilkinson noted that, throughout its precedent considering the issue, “the Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement—either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544 U.S. at 81
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(emphasis in original). In Wilkinson, the Court held that a prisoners’ challenge to state parole procedures –
similar to Plaintiffs’ claims here – was cognizable as a § 1983 claim. The Court noted that the prisoners were not seeking “an injunction ordering [their] immediate or speedier release into the community.” Id. at 83. Rather, if successful, the prisoners would obtain quicker or new parole hearings. The parole board would still have discretion to shorten the prisoners’ terms or not. “Because neither prisoner’s claim would necessarily spell speedier release, neither lies at ‘the core of habeas corpus.’” Id. (citation omitted).
Similarly, in this case, Plaintiffs seek the opportunity to be considered for parole. Success in this suit does not necessarily mean that Plaintiffs will obtain a speedier release from prison. Accordingly, in the light of Wilkinson, Plaintiffs’ claims are cognizable under § 1983. V. Failure to State a Claim
Defendants contend that Plaintiffs have failed to state a claim upon which relief may be granted with respect to their Eighth Amendment, due process, and customary international law claims. See Fed. R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks to have the complaint dismissed based upon the plaintiff's failure to state a claim upon which relief can be granted. The court must “accept all the ... factual allegations as true and construe the complaint in the light most favorable to the Plaintiffs.” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009) (internal quotation marks omitted). “To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th
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Cir.1999) (internal quotation marks omitted). A. Eighth Amendment Defendants argue that sentences of life without parole for juvenile offenders do not
violate the Eighth Amendment as a matter of law, pursuant to Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 211 (2010). In Roper, the Supreme Court held that the imposition of the death penalty on juvenile offenders violated the Eighth Amendment. By implication, Defendants suggest, the Court found a sentence of life without parole to be constitutional. The Court did not in any way consider that question, however. Roper does not support Defendants’ argument.
In Graham, the Court held that a sentence of life without parole for juvenile offenders who did not commit homicide violated the Eighth Amendment. Again, Defendants suggest that the Court “effectively reaffirmed” the constitutionality of life without parole sentences for juvenile homicide offenders. The Graham court did not expressly consider that issue, however, and much of its reasoning could be read to call into question the constitutionality of such sentences. See Graham, 130 S.Ct. at 2023-30.
Graham and Roper do not compel the conclusion that Plaintiffs’ Eighth Amendment claims must fail as a matter of law, particularly at this early stage of the proceedings. See Graham, 130 S.Ct. at 2023. In Graham, the Court engaged in a lengthy analysis of several factors, including evidence of “national consensus” on the issue of life without parole for nonhomicide juvenile offenders, the “culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question,” and “whether the challenged sentencing practice serves legitimate penological goals.” Id. The full Eighth
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Amendment analysis required by Graham involves the presentation of evidence that is not yet before the court on this Rule 12(b)(6) motion. Accordingly, the court will deny Defendants’ motion on this issue.
B. Due Process In order to state a claim for a violation of procedural due process, a plaintiff must show
that the state deprived him of a constitutionally protected interest in “life, liberty, or property” without due process of law. Plaintiffs argue that due process requires that they be given a “meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.” Graham, 130 S.Ct. at 2030.3 Plaintiffs have not, however, identified a liberty or property interest of which they have been deprived without due process of law. Indeed, Plaintiffs do not have a constitutionally protected interest in parole.
“A Fourteenth Amendment procedural due process claim depends upon the existence of a constitutionally cognizable liberty or property interest with which the state has interfered. However, this Court has repeatedly noted that ‘there is no constitutional or inherent right of a convicted person to be conditionally released [e.g., paroled] before the expiration of a valid sentence.’” Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007) (citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)). Further, Michigan law does not create a protected liberty interest in parole. See Juarez v. Renico, 149 F. Supp. 2d 319, 322 (E.D. Mich. 2001).
Because Plaintiffs have failed to identify a liberty interest which they have been denied,
3 Graham did not address due process concerns, but only the Eighth Amendment. Accordingly, it does not provide assistance in analyzing Plaintiffs’ due process claims.
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they cannot state a procedural due process claim. The court will grant Defendants’ motion and dismiss Plaintiffs’ due process claims.
C. Violations of Customary International Law Plaintiffs also allege that sentencing juveniles to life without parole violates “customary international law” and that such a violation may be remedied in an § 1983 action. Plaintiffs note that customary international law is recognized as forming part of federal common law. See generally Sosa v. Alvarez-Machain, 541 U.S. 692, 729 (2004) (“For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations.”). However, it is a logical leap to suggest that a violation of customary international law gives rise to a private cause of action and remedy. Although Plaintiffs argue that a private cause of action should be inferred, they do not cite a case in which a court has actually done so. See Buell v. Mitchell, 274 F.3d 337, 374 (6th Cir. 2001) (“Courts that have determined that private rights of actions exist under customary norms of international law have done so where acts were committed on a foreign citizen or acts were committed by a foreign government or government official. . . . ‘[w]hile some language in several decisions of courts of appeal states that U.S. courts have recognized the concept of jus cogens as part of U.S. law, not a single case has been decided on that basis alone without having been overturned.’”) (citations omitted). This court is not inclined to create a cause of action based upon customary international law where the legal authority in support of such a claim is virtually nonexistent and Plaintiffs’ avenue of redress, if any, is derived from the United States Constitution. The court will dismiss Plaintiffs’ claim based upon customary international law.
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ORDER IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART, consistent with this opinion and order. Plaintiffs’ claims are DISMISSED, except for Plaintiff Keith Maxey’s Eighth Amendment claim. The survival of Keith Maxey’s Eighth Amendment claim will allow this matter to proceed on the merits, in accordance with the court’s scheduling order issued February 10, 2011.

Date: July 15, 2011

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, July 15, 2011, using the ECF system.
s/William Barkholz Case Manager

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, and KEITH MAXEY,

Plaintiffs,

Case No. 10-14568

v.
RICK SNYDER, in his official capacity as Governor of the State of Michigan, RICHARD MCKEON, in his official capacity as Interim Director, Michigan Department of Corrections, BARBARA SAMPSON, in her official capacity as Chair, Michigan Parole Board, jointly and severally,

Hon. John Corbett O’Meara

Defendants. ______________________________________________/

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
Before the court is Plaintiffs’ motion for reconsideration of the court’s July 15, 2011
opinion and order granting in part Defendants’ motion to dismiss. The court did not request a
response or hear oral argument. The standard for granting motions for reconsideration is as
follows:
Generally, and without restricting the court’s discretion, the court will not grant motions for rehearing or reconsideration which merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant shall not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case.
LR 7.1(h)(3).
Having filed a motion for reconsideration that presents the same issues ruled upon by the

court, either expressly or by reasonable implication, Plaintiffs have failed to demonstrate a palpable defect by which the court and the parties have been misled. Therefore, IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration is DENIED.

Date: January 10, 2012

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, January 10, 2012, using the ECF system.
s/William Barkholz Case Manager

 
 5:10-cv-14568-JCO-RSW Doc # 46 Filed 02/21/12 Pg 1 of 3 Pg ID 590

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION

TODD, BOBBY HINES, KEVIN BOYD,

Case

BOSIE SMITH, JENNIFER PRUITT,

MATTHEW BENTLEY, KEITH MAXEY,

GIOVANNI CASPER, JEAN CAROLOS

CINTRON, NICOLE DUPURE and

DONTEZ TILLMAN,

HON.

Plaintiffs,

MAG.

v.

no. 10-cv-14568
JOHN CORBETT O’MEARA JUDGE R. STEVEN WHELAN

RICK SNYDER, in his Official Capacity as Governor of the State of Michigan, DANIEL H. HEYNS, in his Official Capacity as Director, Michigan Department of Corrections, and TOMAS COMBS, in his Official Capacity as Chair, Michigan Parole Board, jointly and severally,
Defendants.

DEBORAH LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620
STEVEN M. WATT EZEKIEL R. EDWARDS American Civil Liberties Union Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870

MARGARET A. NELSON (P30342) ANN M. SHERMAN (P67762) CHRISTINA M. GROSSI (P67482 JOSEPH T. FROEHLICH (P71887) Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 517.373.6434
Attorney for Defendants

DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824

Attorneys for Plaintiffs ______________________________________________________________________________________________

STIPULATION AND ORDER APPLYING THIS COURT’S PRIOR ORDER OF JULY 15, 2011, TO THE FEBRUARY 1, 2012 AMENDED COMPLAINT

5:10-cv-14568-JCO-RSW Doc # 46 Filed 02/21/12 Pg 2 of 3 Pg ID 591

This Court, having entered an Order on July 15, 2011, which dismissed the Plaintiffs’ Claims
set forth under the Second and Third Causes of Action (Due Process) and the Fourth Cause of
Action (Customary International Law), as well as dismissed Plaintiffs Henry Hill, Jemal Tipton,
Damion Todd, Bobby Hines, Kevin Boyd, Bosie Smith, Jennifer Pruitt and Matthew Bentley, based
on the statute of limitations;
Plaintiffs, having filed an amended complaint pursuant to a stipulation, which adds additional
Plaintiffs within the statute of limitations and reasserts all claims for the purpose of preserving issues
for appeal;
NOW, THERFORE, The parties agree and stipulate that this Court’s order of July 15, 2011,
applies to the Amended Complaint, and results in a dismissal with prejudice of all claims by
Plaintiffs Henry Hill, Jemal Tipton, Damion Todd, Bobby Hines, Kevin Boyd, Bosie Smith, Jennifer
Pruitt and Matthew Bentley; and
The parties further agree and stipulate that this Court’s order of July 15, 2011, applies to the
Amended Complaint and results in a dismissal with prejudice of all Plaintiffs’ Claims set forth under
the Second and Third Causes of Action (Due Process) and the Fourth Cause of Action (Customary
International Law).
/S/ Deborah Labelle DEBORAH LaBELLE (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300, Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com

DATED: February 7, 2012

/S/Margaret A. Nelson

MARGARET A. NELSON (P30342)

Counsel for Defendants

P.O. Box 30736, Lansing, MI 48909

517.373.6434

nel

sonm9@michigan.gov

2

5:10-cv-14568-JCO-RSW Doc # 46 Filed 02/21/12 Pg 3 of 3 Pg ID 592

ORDER

This matter having come before this Court upon the Stipulation of the parties;

IT IS HEREBY ORDERED that Plaintiffs’ claims are DISMISSED with prejudice, except

for Plaintiffs Keith Maxey’s, Giovanni Casper’s, Jean Carlos Cintron’s, Nicole Dupur’s and Dontez

Tillman’s Eighth Amendment Claims, as set forth in the parties’ Stipulation. The surviving

Plaintiffs’ Eighth Amendment claims will proceed in accord with the Court’s Scheduling Order

issued on January 25, 2012.

Date: February 21, 2012

s/John Corbett O’Meara United States District Judge

3

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, v. RICK SNYDER, et al.,

Case No. 10-14568 Hon. John Corbett O’Meara

Defendants. _________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Before the court are cross-motions for summary judgment, which have been fully briefed. The court heard oral argument on September 20, 2012, and took the matter under advisement. For the reasons discussed below, Plaintiffs’ motion is granted in part and denied in part, and Defendants’ motion is denied.
BACKGROUND FACTS On November 17, 2010, Plaintiffs filed a complaint challenging the constitutionality of M.C.L. § 791.234(6)(a), which prohibits the Michigan Parole Board from considering for parole those sentenced to life in prison for first-degree murder. Specifically, Plaintiffs seek a declaration the M.C.L. § 791.234(6)(a) is unconstitutional as applied to those who were convicted when they were under the age of eighteen. On July 15, 2011, the court granted Defendants’ motion to dismiss, on statute of limitations grounds, as to all Plaintiffs except Keith Maxey. The court found that Maxey could state a claim for relief under the Eighth Amendment. On February 1, 2012, Plaintiffs filed an amended complaint, adding Plaintiffs whose claims are

not barred by the statute of limitations.1
The United States Supreme Court recently held that mandatory life without parole
sentences for juveniles violate the Eighth Amendment’s prohibition against cruel and unusual
punishment. Miller v. Alabama, 132 S.Ct. 2455 (2012). Based upon Miller, Plaintiffs seek
summary judgment and equitable relief on their Eighth Amendment claim.
LAW AND ANALYSIS
I. Michigan’s Parole Statute Is Unconstitutional as Applied to Juveniles
In Miller, the Court found mandatory life without parole sentencing schemes for
juveniles convicted of homicide to be unconstitutional:
Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.
Miller, 132 S.Ct. at 2475. In this case, each of the Plaintiffs was tried as an adult and convicted
of first-degree murder. As a result, they received mandatory life sentences. Pursuant to statute,
the parole board lacks jurisdiction over anyone convicted of first-degree murder. M.C.L. §
791.234(6). This statutory scheme combines to create life without parole sentences for those
who committed their crimes as juveniles. This type of sentencing scheme is clearly
1 The court dismissed Plaintiffs’ due process and “customary international law” claims for failure to state a claim on July 15, 2011. Plaintiffs’ amended complaint contains the due process and customary international law claims that were previously dismissed. These claims are no longer before the court.
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unconstitutional under Miller. II. Miller Applies Retroactively
Defendants argue, however, that Miller does not apply retroactively. Courts have disagreed whether Miller applies retroactively to cases on collateral review. Compare Craig v. Cain, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (not retroactive); People v. Carp, 2012 WL 5846553 (Mich. App. Nov. 15, 2012) (not retroactive); Geter v. State, 2012 WL 4448860 (Fla. App. Sept. 27, 2012) (not retroactive); with State v. Simmons, 99 So.3d 28 (La. 2012) (allowing for resentencing on collateral review in light of Miller); People v. Morfin, 2012 WL 6028634 (Ill. App. Nov. 30, 2012) (Miller retroactive). This case is not, however, before the court on collateral review. Rather, Plaintiffs challenge the constitutionality of Michigan’s parole statute under § 1983.
“[B]oth the common law and our own decisions” have “recognized a general rule of retrospective effect for the constitutional decisions of this Court.” Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 94 (1993). “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id. at 97. Because Miller was decided while this case was pending, its rule applies to the parties before the court.2
2 Moreover, this court would find Miller retroactive on collateral review, because it is a new substantive rule, which “generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 353. “Such rules apply retroactively because they ‘necessarily carry a significant risk that a defendant . . . faces punishment that the law cannot impose upon him.’” Id. at 352. Miller alters the class of persons (juveniles) who can receive a category of punishment (mandatory life without parole). Further, the Supreme Court
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Indeed, if ever there was a legal rule that should – as a matter of law and morality – be given retroactive effect, it is the rule announced in Miller. To hold otherwise would allow the state to impose unconstitutional punishment on some persons but not others, an intolerable miscarriage of justice. III. Relief Sought by Plaintiffs
The issue here is what type of relief this court can afford to Plaintiffs. In considering this, the court must be mindful of the procedural posture of this case. Plaintiffs have exhausted direct review of their convictions and sentences; they are not seeking a writ of habeas corpus. Rather, they are asking that the court declare M.C.L. § 791.234(6) (the parole statute) unconstitutional under § 1983. The distinction is important because Plaintiffs cannot attack their sentences under § 1983; rather, such relief must be obtained in state court or through habeas corpus. Indeed, Plaintiffs were careful to circumscribe their request for relief, emphasizing that they were not attacking their sentences, in order to survive Defendants’ motion to dismiss. See July 15, 2011 Order at 8-9.
For this reason, the court cannot announce a categorical ban on a sentence of life without parole for juveniles, as Plaintiffs now request. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He must seek federal habeas corpus relief (or appropriate state relief) instead.”).
Despite the fact that they cannot challenge their sentences here, Plaintiffs suggest in their
applied Miller to the companion case before it – on collateral review – and vacated the sentence of Kuntrell Jackson. “[O]nce a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.” Teague v. Lane, 489 U.S. 288, 300 (1989).
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brief that they are entitled to a “judicial hearing with full consideration of the mitigating circumstances attendant to their child status at the time they committed the offense so that their punishment reflects their lesser culpability and inherent rehabilitation capabilities.” Pls.’ Br. at 1. In other words, Plaintiffs suggest that they are entitled to re-sentencing. This is not relief that this court can grant in this case. Plaintiffs must seek such relief in state court or, if necessary, through a writ of habeas corpus.
Plaintiffs are entitled to relief with respect to the parole statute itself, however. The court declares M.C.L. 791.234(6) unconstitutional as it applies to these Plaintiffs, who received mandatory life sentences as juveniles. As a result, Plaintiffs will be eligible and considered for parole. It remains to be determined how that process will work and what procedures should be in place to ensure that Plaintiffs are fairly considered for parole. In this respect, the court will need further input from the parties.
Plaintiffs argue that the current parole system in Michigan, where parole may be denied “for any reason or no reason at all,” is not a constitutional mechanism for compliance with Graham and Miller. However, is not clear what Plaintiffs want the system to look like, other than to require “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 130 S.Ct. at 2030. The undefined nature of Plaintiffs’ request regarding changes in the parole system does not satisfy Plaintiffs’ burden of demonstrating that they are entitled to summary judgment here. Plaintiffs need to articulate more clearly what changes in the parole system they believe are required by Eighth Amendment.
It may be that Plaintiffs are granted new sentencing hearings in state court, which may obviate the need for changes in the parole system. It appears, however, that the State and state
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courts (see Carp) intend to resist granting such hearings. Under these circumstances, the court

believes that compliance with Miller and Graham requires providing a fair and meaningful

possibility of parole to each and every Michigan prisoner who was sentenced to life for a crime

committed as a juvenile.

The court directs the parties to provide further briefing on the issue of the procedures that

court may equitably put in place to ensure that Plaintiffs receive a fair and meaningful

opportunity to demonstrate that they are appropriate candidates for parole. Plaintiffs shall

submit their brief by March 1, 2013; Defendants shall submit a response by March 22, 2013.

Plaintiffs may submit a reply by March 29, 2013.

ORDER

IT IS HEREBY ORDERED that Plaintiffs’ motion for summary judgment is GRANTED

IN PART and DENIED IN PART, consistent with this opinion and order.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment is

DENIED.

Date: January 30, 2013

s/John Corbett O'Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, January 30, 2013, using the ECF system.
s/William Barkholz Case Manager

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, v. RICK SNYDER, et al.,

Case No. 10-14568 Hon. John Corbett O’Meara

Defendants. _________________________/

ORDER DENYING MOTIONS TO INTERVENE

Before the court are three motions to intervene filed by Patrick Neil Kinney, Ali Sareini,

and Gary Lee Peters. Plaintiffs and Defendants have filed responses in opposition to these

motions.

Patrick Neil Kinney is a Michigan prisoner who was sentenced to life with the possibility

of parole for second-degree murder committed when he was sixteen years old. Ali Sareini was

also sentenced to life with the possibility of parole for an offense he committed when he was

nineteen years old. Gary Lee Peters was sentenced to life without the possibility of parole for

first-degree felony murder when he was seventeen. Each of these individuals seeks to intervene

in the present action pursuant to Fed. R. Civ. P. 24.

Under Fed. R. Civ. P. 24(a)(2), the court must permit anyone to intervene who “claims an

interest relating to the property or transaction that is the subject of the action, and is so situated

that disposing of the action may as a practical matter impair or impede the movant’s ability to

protect its interest, unless existing parties adequately represent that interest.” In order to

intervene as of right under this rule, the movant must show “(1) the motion to intervene is

timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the

case; (3) the proposed intervenor’s ability to protect that interest may be impaired in the absence

of intervention; and (4) the parties already before the court may not adequately represent the proposed intervenor’s interest.” United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005).
Under Fed. R. Civ. P. 24(b), the court may permit anyone to intervene who “has a claim or defense that shares with the main action a common question of law or fact.” To be granted permissive intervention, the movant must show that his claim contains a “question of law or fact in common with the main action” and must not “unduly delay or prejudice the adjudication of the original parties’ rights.” City of St. Louis v. Velsichol Chem. Corp., 708 F. Supp.2d 632, 668 (E.D. Mich. 2010).
The factual and legal underpinnings of the claims of Kinney and Sareini are significantly different from those of Plaintiffs. Plaintiffs were sentenced pursuant to a mandatory scheme which prohibited the Michigan Parole Board from considering them for parole. The court declared that scheme – specifically M.C.L. § 791.234(6) – unconstitutional as applied to those juveniles who were convicted when they were under the age of eighteen. As a result, juveniles who received mandatory life sentences that rendered them ineligible for parole under M.C.L. § 791.234(b) are now eligible for parole.
Kinney was given a life sentence with the possibility of parole for second-degree murder. His claims center on the adequacy of certain parole procedures that were always applicable to him. Therefore, Kinney’s claims are factually and legally different from Plaintiffs’ and he does not have a significant legal interest in this action. Nor does he share a common question of law or fact with the main action.
Sareini was given a life sentence with the possibility of parole for an offense committed when he was nineteen. Unlike the Plaintiffs here, he was not given a mandatory life sentence without parole and he was not a juvenile at the time of his offense. His claims are also legally
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and factually different from Plaintiffs’ claims. Peters, on the other hand, received a mandatory life sentence without parole at age
seventeen. The court has ruled that M.C.L. § 791.234(6), which prohibited Peters from being considered for parole, is unconstitutional. This ruling applies to Plaintiffs as well as those similarly situated, such as Peters. Peters contends that the Michigan Parole Board does not intend to provide him with a meaningful opportunity for parole, which is essentially the argument that Plaintiffs have made in this action.
Despite the fact that Peters has a substantial legal interest in this case, the court finds that other considerations militate against granting him mandatory or permissive intervention. Peters has not shown that his interest will be impeded or impaired absent intervention, nor has he demonstrated that the parties before the court may not adequately represent his interest. See Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987) (demonstrating inadequate representation requires “overcom[ing] the presumption of adequacy of representation that arises when the proposed intervenor and a party to the suit ... have the same ultimate objective”). Further, at this late stage of the proceedings, when the court is prepared to determine the relief it will fashion, the addition of new parties will unduly delay this adjudication.
Therefore, IT IS HEREBY ORDERED that the motions to intervene (Docket Nos. 65, 68, and 90) are DENIED.

Date: August 12, 2013

s/John Corbett O’Meara United States District Judge

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I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, August 12, 2013, using the ECF system and/or ordinary mail.
s/William Barkholz Case Manager
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, v. RICK SNYDER, et al.,

Case No. 10-14568 Hon. John Corbett O’Meara

Defendants. _________________________/

ORDER GRANTING PLAINTIFFS’ MOTION FOR RULING ON SCOPE OF SUMMARY JUDGMENT ORDER AND DENYING
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AS MOOT

Before the court is Plaintiffs’ motion for a ruling on the scope of the court’s January 30,

2013 order, filed March 29, 2013, and Plaintiffs’ motion for class certification, filed May 21,

2013. Finding the issues fully explicated in the briefs, the court did not hear oral argument.

This case involves M.C.L. § 791.234(6)(a), which prohibited the Michigan Parole Board

from considering for parole those sentenced to life in prison for first-degree murder. On January

30, 2013, the court declared that M.C.L. § 791.234(6)(a) is unconstitutional as applied to

juveniles who were convicted when they were under the age of eighteen. In further briefing

regarding equitable relief, Defendants have taken the position that the court’s ruling applies only

to the Plaintiffs named in this action. In other words, Defendants believe they may enforce the

statute, which the court has declared unconstitutional, with respect to other juveniles sentenced

to life in prison. As the court now makes clear, Defendants are incorrect.

Plaintiffs are not required to bring a class action to obtain declaratory or injunctive relief

applicable to other similarly situated individuals. See e.g., Doe v. Gallinot, 657 F.2d 1017,

1024-25 (9th Cir. 1981) (“The challenged provisions were not unconstitutional as to Doe alone,

but as to any to whom they might be applied.”); Soto-Lopez v. New York City Civil Serv. Comm’n, 840 F.2d 162, 168-69 (2d Cir. 1988) (“The availability of such injunctive relief is not limited to class actions. When a state statute has been ruled unconstitutional, state actors have an obligation to desist from enforcing that statute.”); Clement v. California Dept. of Corrections, 364 F.3d 1148, 1152-53 (9th Cir. 2004) (upholding statewide permanent injunction and noting that “[t]he state offers no argument that a total internet mail ban might be constitutional if implemented at a different prison”).
Having declared that M.C.L. § 791.234(6)(a) is unconstitutional as applied to juveniles who were convicted when they were under the age of eighteen, the court cannot find it proper for the state to enforce the statute against any such individuals, whether or not they are Plaintiffs in this action. The state has “an obligation to desist from enforcing that statute.” Clement, 364 F.3d at 1152-53. Therefore, every person convicted of first-degree murder in the State of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole.
IT IS HEREBY ORDERED that Plaintiffs’ motion for a ruling on the scope of the court’s January 30, 2013 order is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for class certification is DENIED AS MOOT.

Date: August 12, 2013

s/John Corbett O’Meara United States District Judge

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I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, August 12, 2013, using the ECF system and/or ordinary mail.
s/William Barkholz Case Manager
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, v. RICK SNYDER, et al.,

Case No. 10-14568 Hon. John Corbett O’Meara

Defendants. _________________________/

ORDER DENYING MOTION TO INTERVENE Before the court is Edward L. Finley, Jr.’s motion to intervene, filed September 6, 2013. Plaintiffs filed a response in opposition on November 1, 2013. Finley was sentenced to mandatory life without parole for an offense committed when he was eighteen years old. He seeks to intervene as a plaintiff in this case pursuant to Fed. R. Civ. P. 24. Under Fed. R. Civ. P. 24(a)(2), the court must permit anyone to intervene who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” In order to intervene as of right under this rule,

the movant must show “(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor’s ability to protect that interest may be impaired in the absence of intervention; and (4) the parties already before the court may not adequately represent the proposed intervenor’s interest.” United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005).
Under Fed. R. Civ. P. 24(b), the court may permit anyone to intervene who “has a claim or defense that shares with the main action a common question of law or fact.” To be granted permissive intervention, the movant must show that his claim contains a “question of law or fact in common with the main action” and must not “unduly delay or prejudice the adjudication of the original parties’ rights.” City of St. Louis v. Velsichol Chem. Corp., 708 F. Supp.2d 632, 668 (E.D. Mich. 2010).
This case involves Plaintiffs who were sentenced to mandatory life without parole for crimes committed as juveniles. Finley was not a juvenile, but legally an adult, when he committed his crime. Therefore, his claim does not share a question of law or fact in common with Plaintiffs’ claims here, as required for permissive intervention. Nor does Finley have a significant legal interest in the subject matter of this litigation, as required for intervention as of right.
-2-

IT IS HEREBY ORDERED that Finley’s motion to intervene is DENIED.

Date: November 26, 2013

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, November 26, 2013, using the ECF system and/or ordinary mail.
s/William Barkholz Case Manager

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 5:10-cv-14568-JCO-RSW Doc # 107 Filed 11/26/13 Pg 1 of 3 Pg ID 1442

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al., Plaintiffs,
v. RICK SNYDER, et al.,
Defendants. _________________________/

Case No. 10-14568 Hon. John Corbett O’Meara

ORDER REQUIRING IMMEDIATE COMPLIANCE WITH MILLER Graham and Miller together declared that convicts sentenced to life imprisonment without parole for crimes committed as juveniles violated the Eighth Amendment by imposing cruel and unusual punishment. This Order addresses and corrects such sentences in a manner consistent with the Opinions in those cases. To date, the defendants have not understood these decisions to require the effective actions described below. The defendants will, by the end of the day, December 31, 2013: 1. Create an administrative structure for the purpose of processing and
determining the appropriateness of paroles for prisoners sentenced to life without parole for crimes committed as juveniles. 2. Give notice to all such persons who have completed 10 years of imprisonment that their eligibility for parole will be considered in a meaningful and realistic manner.

5:10-cv-14568-JCO-RSW Doc # 107 Filed 11/26/13 Pg 2 of 3 Pg ID 1443
3. Schedule, on a fair and reasonable basis, proceedings including a public hearing for each of the eligible prisoners making application for consideration.
4. Put in place a process for preliminary determination of appropriateness of submission of each eligible prisoner’s application for parole to the entire Parole Board.
5. The proceedings, from an initial determination of eligibility will be fair, meaningful, and realistic.
6. The Parole Board will, in each case, issue its decision and explain its decision determining the appropriateness vel non of parole. It will not issue a “no interest” Order or anything materially like a “no interest” Order.
7. There will be no vetoes by the sentencing Judge or anyone else. 8. As of the date this process begins, no prisoner sentenced to life
imprisonment without parole for a crime committed as a juvenile will be deprived of any educational or training program which is otherwise available to the general prison population. On or before January 31, 2014, defendants will submit to this court a program and process compliant with the specifics ordered above. Failure to do so and/or failure to explain to the court any shortfall in defendants’ compliance in some manner satisfactory to the court may result, inter alia, in the appointment and empowerment of a Special Master to make available to prisoners sentenced to life without parole for juvenile crimes the process this Order envisions.
2

5:10-cv-14568-JCO-RSW Doc # 107 Filed 11/26/13 Pg 3 of 3 Pg ID 1444 SO ORDERED. s/John Corbett O’Meara United States District Judge
Date: November 26, 2013 I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, November 26, 2013, using the ECF system and/or ordinary mail.
s/William Barkholz Case Manager
3

 
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No. 13-2661
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Dec 23, 2013
DEBORAH S. HUNT, Clerk

KEITH MAXEY, et al.,

)

)

Plaintiffs-Appellees,

)

)

)

v.

)

)

RICK SNYDER, in his Official Capacity as )

Governor of the State of Michigan, et al.,

)

)

Defendants-Appellants.

)

O R D E R

Before: ROGERS, COOK, and GRIFFIN, Circuit Judges.
The State of Michigan appeals the district court’s November 26, 2013 order directing it to create an administrative structure by December 31, 2013, for the purpose of processing and determining the appropriateness of paroles for prisoners sentenced to life without parole for crimes committed as juveniles. On or before January 31, 2014, the State must submit to the district court a program and process compliant with the specifics set forth in the order. The State moves to stay the November 26, 2013 order pending the outcome of its appeal. The district court has denied a similar motion. Plaintiffs oppose a stay and move to dismiss the appeal.
Before we consider the merits of the State’s motion, we must decide whether we have jurisdiction in this matter. A decision is final for purposes of 28 U.S.C. § 1291 if it disposes of all claims and parties on the merits and leaves nothing for the district court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233 (1945). The November 26, 2013 order directs the State to craft a remedy that the district court may or may not approve. It does not finally resolve the plaintiffs’ requests for relief and may not be appealed pursuant to § 1291.

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No. 13-2661 - 2 -

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The question remaining “is whether the order effectively operates as an ‘injunction’—which

is what 28 U.S.C. § 1292(a)(1) permits us to review on an interlocutory basis.” Workman v.

Bredesen, 486 F.3d 896, 904 (6th Cir. 2007). In considering this issue, we focus on the nature of

the order, and not the label attached to it. N.E. Ohio Coal. for Homeless & Serv. Employees Int’l

Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006). “Because § 1292(a)(1) was

intended to carve out only a limited exception to the final-judgment rule, we have construed the

statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in

circumstances where an appeal will further the statutory purpose of ‘permit[ting] litigants to

effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’” Carson

v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348

U.S. 176, 181 (1955)). The November 26, 2013 order acts as a mandatory injunction requiring

affirmative action and affects an important interest of the State. Therefore, we conclude that the

State may seek immediate appellate review of that order. See, e.g., Cooey v. Strickland, 588 F.3d

921, 923 (6th Cir. 2009).

Turning to the merits, the State “bears the burden of showing that the circumstances justify”

our exercise of discretion to grant a stay pending appeal. Nken v. Holder, 556 U.S. 418, 434 (2009).

In addressing the motion, we consider the following factors: (1) whether the State has made a

“strong showing that [it] is likely to succeed on the merits”; (2) whether it will be “irreparably

injured absent a stay”; (3) “whether issuance of the stay will substantially injure the other parties

interested in proceeding”; and (4) “where the public interest lies.” Id.; see also Serv. Employees Int’l

Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012); Mich. Coal. of Radioactive Material

Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

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No. 13-2661 - 3 -

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In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held “that mandatory life

without parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460. Under Michigan law,

first-degree murder—the offense for which all plaintiffs were convicted—carries a statutory penalty

of “imprisonment for life.” M.C.L. § 750.316(1). The first-degree murder statute is silent as to

parole eligibility. See id. Parole eligibility is governed by a separate statute, M.C.L. § 791.234, a

subsection of which makes those convicted of first-degree murder ineligible for parole. See M.C.L.

§ 791.234(6)(a). Based on Miller, the district court declared that M.C.L. § 791.234(6)(a) is

unconstitutional as applied to those who were under the age of 18 at the time their crime was

committed and, on that basis, has ordered the state to begin the process of correcting the prohibition

on parole that § 791.234(6)(a) imposes.

The Supreme Court “has held that a prisoner in state custody cannot use a § 1983 action to

challenge ‘the fact or duration of his confinement.’” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005)

(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). “He must seek federal habeas corpus

relief (or appropriate state relief) instead.” Id. If a conviction for a particular crime requires a

sentence of life without parole, an action demanding consideration for parole would appear to be

an attack on the sentence itself, which is something that should not be done in a § 1983 setting. The

State argues that § 1983 is being used to apply Miller retroactively and that the district court has

ordered relief in favor of persons who are not class members.

“[A] party seeking a stay must ordinarily demonstrate to a reviewing court that there is a

likelihood of reversal.” Michigan Coal., 945 F.2d at 153. However, “a movant need not always

establish a high probability of success on the merits. The probability of success that must be

demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent

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No. 13-2661 - 4 -

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the stay. Simply stated, more of one excuses less of the other.” Id. (internal citations omitted). A

movant is required, however, to show, at a minimum, “serious questions going to the merits.” Id.

at 154 (internal citation and quotation marks omitted). Here, the State has met this standard because

the harm the State would suffer is significant in light of the sweeping, overbroad nature of the order.

Specifically, in evaluating the harm that will occur depending on whether or not a stay is

granted, we note that the November 26, 2013 order requires the State to give notice within the next

nine days to approximately 360 inmates that their eligibility for parole will be considered in a

meaningful and realistic manner. And within that same time period, prisoners sentenced to life

imprisonment without parole for crimes committed as juveniles must be provided any educational

or training program which is otherwise available to the general prison population. This is a

remarkably short amount of time for compliance, given the scope of the undertaking. Moreover,

even though this case was filed as a class action, the district court never certified a class; nonetheless,

the order applies to 360 inmates. Although defendants raise a host of additional issues, the district

court clearly erred by ordering parole hearings for all prisoners who were sentenced for first-degree

murder as juveniles and have served at least 10 years in prison, even though the plain language of

M.C.L. § 791.234(7)(a) specifies that prisoners convicted of a life sentence after 1992 and who were

not convicted of an M.C.L. § 791.234(6) offense are eligible for parole only after fifteen years.

For these reasons, we conclude the State has demonstrated a “likelihood of reversal” and that

it would suffer significant harm in light of the overbroad nature of the district court’s order.

Michigan Coal., 945 F.2d at 153-54. We therefore conclude that the equities weigh in favor of

granting a stay.

5:10C-acsve-1: 41536-286-J6C1O-RDSoWcumDeonct:#001611911F9i1le7d91825/23F/1il3ed:P1g25/2o3f/27013Pg IDPa1g4e9:45 No. 13-2661 - 5 -
The motion for a stay is GRANTED. Plaintiffs’ motion to dismiss is DENIED.
ENTERED BY ORDER OF THE COURT

(5 of 7)

Clerk

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(6 of 7)

Deborah S. Hunt 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 23, 2013

Mr. Daniel S. Korobkin ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Deborah A. LaBelle Law Offices of Deborah LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104
Ms. Margaret A Nelson Office of the Michigan Attorney General Public Employment & Elections Division P.O. Box 30736 Lansing, MI 48909
Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Steven M. Watt ACLU 125 Broad Street 18th Floor New York, NY 10004
Re: Case No. 13-2661, Henry Hill, et al v. Rick Snyder, et al Originating Case No. : 5:10-cv-14568
Dear Sir or Madam,

5:10C-acsve-1: 41536-286-J6C1O-RDSoWcumDeonct:#001611911F9i1le7d91826/23F/1il3ed:P1g27/2o3f/27013Pg IDPa1g4e9:62

(7 of 7)

The Court issued the enclosed Order today in this case. Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Jill Colyer Case Manager Direct Dial No. 513-564-7024

 
 5:10-cv-1C45a6se8:-J1C3O-2-6R6S1W DDooccu#m1e2n7t: 8F7i-l1ed 0F5i/l1e1d/:1065/1P1g/2101o6f 15 PaPggeI:D1 1543 (1 of 15)

Deborah S. Hunt 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: May 11, 2016
Mr. Brandon J. Buskey Mr. Ezekiel Reifler Edwards Mr. Steven M. Watt ACLU 125 Broad Street, 18th Floor New York, NY 10004
Mr. Joseph T. Froehlich Ms. Margaret A Nelson Mr. Bernard Eric Restuccia Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Mr. Daniel S. Korobkin Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Deborah A. LaBelle 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000
American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Re: Case No. 13-2661/13-2705, Henry Hill, et al v. Rick Snyder, et al Originating Case No. : 5:10-cv-14568
Dear Counsel,
The court today announced its decision in the above-styled cases.

5:10-cv-1C45a6se8:-J1C3O-2-6R6S1W DDooccu#m1e2n7t: 8F7i-l1ed 0F5i/l1e1d/:1065/1P1g/2201o6f 15 PaPggeI:D2 1544 (2 of 15)

Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

5:10-cv-1C45a6se8:-J1C3O-2-6R6S1W DDooccu#m1e2n7t: 8F7i-l2ed 0F5i/l1e1d/:1065/1P1g/2301o6f 15 PaPggeI:D1 1545 (3 of 15)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0112p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

HENRY HILL; JEMAL TIPTON; DAMION TODD; BOBBY ┐

HINES; KEVIN BOYD; BOSIE SMITH; JENNIFER │

PRUITT; MATTHEW BENTLEY; KEITH MAXEY; │

GIOVANNI CASPER; JEAN CARLOS CINTRON; NICOLE DUPURE; DONTEZ TILLMAN,

││>

No. 13-2661/2705

Plaintiffs-Appellees/Cross-Appellants, │

│

v.

│ │

│

RICK SNYDER, in his official capacity as Governor │

of the State of Michigan; DANIEL H. HEYNS, in his │

official capacity as Director, Michigan Department │

of Corrections; THOMAS R. COMBS, in his official │

capacity as Chair, Michigan Parole Board, jointly │

and severally,

│

Defendants-Appellants/Cross-Appellees.

│ │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 5:10-cv-14568—John Corbett O’Meara, District Judge.

Argued: January 21, 2015

Decided and Filed: May 11, 2016

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.

_________________

COUNSEL
ARGUED: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants/Cross-Appellees. Deborah LaBelle, Ann Arbor, Michigan, for Appellees/Cross-Appellants. ON BRIEF: Margaret A. Nelson, Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants/Cross-Appellees. Deborah LaBelle, Ann Arbor, Michigan, Brandon J. Buskey, Steven M. Watt, Ezekiel R. Edwards, AMERICAN CIVIL LIBERTIES UNION

1

5:10-cv-1C45a6se8:-J1C3O-2-6R6S1W DDooccu#m1e2n7t: 8F7i-l2ed 0F5i/l1e1d/:1065/1P1g/2401o6f 15 PaPggeI:D2 1546 (4 of 15)

Nos. 13-2661/2705

Hill, et al. v. Snyder, et al.

Page 2

FOUNDATION, New York, New York, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Appellees/CrossAppellants.
_________________
OPINION _________________
JANE B. STRANCH, Circuit Judge. This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment. This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18. Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.
Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass. First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460. Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.
The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013.

5:10-cv-1C45a6se8:-J1C3O-2-6R6S1W DDooccu#m1e2n7t: 8F7i-l2ed 0F5i/l1e1d/:1065/1P1g/2501o6f 15 PaPggeI:D3 1547 (5 of 15)

Nos. 13-2661/2705

Hill, et al. v. Snyder, et al.

Page 3

That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller. In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.
I. BACKGROUND
A description of the underlying litigation—and of the intervening changes in federal and state law—is necessary to understand the current legal landscape in this case and our reasons for remanding to the district court.
A. Pleadings & Motion to Dismiss
In 2010, nine original plaintiffs—all of whom were juvenile offenders who had been convicted of first-degree murder under section 316 of Michigan’s penal code—filed the instant lawsuit against Michigan state officials pursuant to 42 U.S.C. § 1983. Plaintiffs alleged that certain “Michigan laws, policies and practices” relevant to their sentences “violate[d] the Eighth and Fourteenth Amendments of the United States Constitution and customary international law.” Specifically, plaintiffs pointed to penal code section 316, which mandates a life sentence for anyone convicted of first-degree murder, see Mich. Comp. Laws Ann. § 750.316(1) (2010) (“A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life. . . .”), and section 234 of the Michigan corrections code, which excludes those convicted under penal code section 316 from the Michigan Parole Board’s jurisdiction, rendering them ineligible for parole as a matter of state law, see Mich. Comp. Laws Ann. § 791.234(6) (“A prisoner sentenced to imprisonment for life for [first degree murder in violation of Michigan penal code section 316] is not eligible for parole[.]”).
Defendants filed an answer followed by a motion to dismiss, arguing that plaintiffs’ claims were procedurally barred and that they had “fail[ed] to state a claim under the Eighth Amendment’s prohibition against cruel and unusual punishment, the Fourteenth Amendment’s due process guarantees, [or] customary international law.” The district court granted in part and denied in part defendants’ motion on July 15, 2011, holding that the applicable statutes of

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limitation barred all but one of the nine named plaintiffs—Keith Maxey—from seeking relief, and that Maxey had stated a claim for Eighth Amendment violations but not for violations of the Fourteenth Amendment or international law. Accordingly, the district court dismissed all of the plaintiffs’ claims except for Maxey’s Eighth Amendment claim. Plaintiffs filed an amended complaint in February 2012 that, as relevant here, added four new plaintiffs: Giovanni Casper, Jean Carlos Cintron, Nicole Dupure, and Dontez Tillman. All four, like Maxey, were juvenile offenders convicted of first-degree murder serving mandatory life sentences while ineligible for parole, and all four joined Maxey’s Eighth Amendment challenge to Michigan’s statutory scheme.
B. Miller v. Alabama
On June 25, 2012, less than six months after plaintiffs filed their amended complaint, the United States Supreme Court decided Miller v. Alabama and the landscape of this litigation shifted, recognizing the constitutional concerns raised by plaintiffs. In Miller, two 14-year-old Alabama offenders challenged the constitutionality of their mandatory sentences to life imprisonment without the possibility of parole, and the Supreme Court held for the first time “that the Eighth Amendment[’s prohibition on cruel and unusual punishment] forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S. Ct. at 2469. The Court explained that “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. The Court noted, moreover, that while sentencing courts were not completely foreclosed from sentencing juvenile offenders to life without parole—so long as they first considered “children’s diminished culpability and heightened capacity for change” and other attendant characteristics of youth, id.—such a sentence would likely only be appropriate for “the rare juvenile offender whose crime reflects irreparable corruption.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).
C. Cross-Motions for Summary Judgment & Subsequent Orders
In August 2012, two months after the Supreme Court’s decision in Miller, the parties in the instant case filed cross-motions for summary judgment. Plaintiffs, relying on Miller, argued that section 234(6) of Michigan’s corrections code—which barred plaintiffs from eligibility for

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parole—was unconstitutional as applied to juveniles and asked the court for declaratory and injunctive relief that would require Michigan to provide them with a meaningful and realistic opportunity for release. Defendants, for their part, insisted that Miller did not apply retroactively to plaintiffs and, even if it did, that the district court lacked authority to dictate the sentencing and parole procedures of the State. The district court granted-in-part and denied-in-part plaintiffs’ motion and denied defendants’ cross-motion in an opinion issued on January 30, 2013. Specifically, the court held that: (1) Miller applied to plaintiffs; (2) Michigan’s statute barring plaintiffs from parole eligibility was unconstitutional under Miller and the Eighth Amendment; and (3) plaintiffs were entitled to some form of equitable relief from the challenged parole statute. In order to determine what form of relief was most appropriate, the court directed the parties to provide supplemental briefing addressing “the procedures that [the] court may equitably put in place to ensure that Plaintiffs receive a fair and meaningful opportunity to demonstrate that they are appropriate candidates for parole.”
It appears that defendants interpreted the district court’s ruling to apply only to the named plaintiffs in the instant action and took the position that the State remained free to enforce the challenged parole statute against any other juvenile offenders convicted of first-degree murder. In response to plaintiffs’ motion for clarification, the district court issued an order on August 12, 2013, stating that its January ruling declaring section 234(6) of the Michigan corrections code unconstitutional was intended to apply to “every person convicted of firstdegree murder in the State of Michigan as a juvenile . . . who was sentenced to life in prison” without the possibility of parole, not just the named plaintiffs in this case. The court also addressed a motion for class certification that plaintiffs had filed as an alternative to their motion for clarification; in so doing, the district court relied on precedent from the Ninth and Second Circuits to support its conclusion that “[p]laintiffs are not required to bring a class action to obtain declaratory or injunctive relief applicable to other similarly situated individuals.” The court therefore denied plaintiffs’ motion for class certification as moot in light of its ruling on the scope of its January order.
In November 2013, the district court issued an injunctive order that lies at the heart of the parties’ dispute on appeal. Plaintiffs alleged that defendants were continuing to enforce the

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challenged parole statue against them and were depriving plaintiffs of access to rehabilitation programs based on their purported ineligibility for parole. The district court held a status conference to address plaintiffs’ concerns and afterward, on November 26, 2013, the court issued an “Order Requiring Immediate Compliance with Miller” directing defendants to take certain specified actions related to considering all juvenile offenders sentenced to mandatory life in prison for parole.
Cross-Appeals and Stays
Defendants filed a notice of appeal on December 5, 2013. They also asked the district court to stay its injunctive order pending appeal, but the district court denied their request. Something of a procedural morass followed, as plaintiffs moved to dismiss defendants’ appeal for lack of jurisdiction, defendants moved this court for a stay of the district court’s injunctive order, and plaintiffs filed a protective cross-appeal. A three-judge panel of this court denied plaintiffs’ motion to dismiss and granted defendants’ motion for a stay. Defendants then moved to dismiss plaintiffs’ cross-appeal for lack of jurisdiction, and that motion is still pending.
Changes to Michigan Law
In 2014, while the parties continued to litigate this appeal, the Michigan legislature passed Public Act No. 22 in response to the Supreme Court’s holding in Miller that mandatory life without parole for juvenile offenders is unconstitutional. See 2014 Mich. Pub. Act 22. Specifically, the legislature created two new statutory provisions regarding juvenile offender sentencing: sections 25 and 25a of chapter IX of the Michigan code of criminal procedure. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). Section 25 applies to juvenile offenders who committed certain enumerated offenses—including first-degree murder under section 316 of the penal code which, as explained, carries a mandatory life sentence—and who were convicted after Miller or whose cases were still pending or subject to appeal as of June 25, 2012, the date Miller was decided. Section 25 requires prosecutors to file motions if they intend to seek new sentences of life without parole for these juvenile offenders and provides for court hearings to determine whether or not such a sentence is appropriate under Miller in each individual’s case. See Mich. Comp. Laws Ann. § 769.25(6) (“If the prosecuting attorney files a motion under subsection (2), the court shall conduct a hearing on the motion as part of the sentencing process.

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At the hearing, the trial court shall consider the factors listed in Miller v. Alabama . . . and may consider any other criteria relevant to its decision, including the individual’s record while incarcerated.”). If, however, the prosecution does not file a motion within the designated time period, “the court shall sentence the [juvenile offender] to a term of years . . . for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.” Mich. Comp. Laws Ann. §§ 769.25(4), (9).
Section 25a, meanwhile, clarifies that “the procedures set forth in section 25 . . . do not apply to any case that is final for purposes of appeal on or before June 24, 2012”—i.e., any conviction that was final before Miller. Mich. Comp. Laws Ann. § 769.25a(1). Instead, and as relevant here, section 25a states that:
If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v. Alabama . . . applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in section 25(2) of this chapter [including first-degree murder under section 316 of the penal code] shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section.
Mich. Comp. Laws Ann. § 769.25a(2). Section 25a goes on to provide time frames for resentencing this category of juvenile offenders. Prosecuting attorneys would have “180 days after the date the supreme court’s decision becomes final” to “file motions for resentencing in all cases in which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment for life without the possibility of parole.” Mich. Comp. Laws Ann. § 769.25a(4)(b). If such a motion were filed, “[a] hearing on the motion shall be conducted as provided in section 25[.]” Id. In the absence of such a motion, however, section 25a provides that “the court shall sentence the [juvenile offender] to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years.” Mich. Comp. Laws Ann. § 769.25a(4)(c).
In August 2015, the Michigan Court of Appeals heard a challenge to section 25 and declared the new state statutory scheme unconstitutional in part. See People v. Skinner, ---

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N.W.2d ---, No. 317892, 2015 WL 4945986, at *12–20 (Mich. Ct. App. Aug. 20, 2015). In particular, the court held that in order to resentence a juvenile offender “to life without parole, . . . a jury” and not a judge “must make findings on the Miller factors as codified at MCL 769.25(6) to determine beyond a reasonable doubt whether the juvenile’s crime reflects irreparable corruption.” Id. at *19. Skinner was not appealed to the Michigan Supreme Court, and the State of Michigan has conceded in subsequent litigation that Skinner is binding authority. See People v. Zuniga, No. 324157, 2016 WL 620137, at *2 (Mich. Ct. App. Feb. 16, 2016).
Montgomery v. Louisiana
Returning to the instant litigation, this court issued an order on October 29, 2015 holding this case in abeyance pending the Supreme Court’s decision in Montgomery v. Louisiana. We explained that “[t]he Supreme Court recently heard oral argument in Montgomery v. Louisiana . . . concerning whether Miller v. Alabama . . . adopts a new substantive rule that applies retroactively on collateral review to juveniles whose convictions were final when Miller was decided” and, consequently, that Montgomery might “have a significant effect on these appeals” as many of the named plaintiffs’ convictions were final before Miller.
The Supreme Court issued its opinion in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), in late January 2016. Like the district court in the instant case, the Supreme Court concluded that Miller’s constitutional holding is indeed retroactive:
Because Miller determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant—here, the vast majority of juvenile offenders—faces a punishment that the law cannot impose upon him.
Montgomery, 136 S. Ct. at 734 (alteration in original) (citations omitted). The Supreme Court further explained that “[a] conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void.” Id. at 731. Thus, the Court observed,

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“[i]t follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Id. Put another way, “[t]here is no grandfather clause that permits States to enforce punishments the Constitution forbids.” Id.
In Montgomery, the Supreme Court once again recognized “that ‘children are constitutionally different from adults for purposes of sentencing.’” Id. at 733 (quoting Miller, 132 S. Ct. at 2464). The Court also expressed concern that “Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.” Id. at 736. Regarding remedies for these likely widespread violations, the Supreme Court noted that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” Id.; see also id. (“Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.”). “Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States,” the Court explained, “nor does it disturb the finality of state convictions.” Id. “Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Id. Indeed, the Court concluded, juvenile offenders sentenced to mandatory life without parole “must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside prison walls must be restored.” Id. at 736–37.
DISCUSSION Following the Supreme Court’s issuance of Montgomery, both parties filed letters with this court addressing the impact of Montgomery on this case. Defendants suggest that Montgomery’s holding on Miller’s retroactivity triggers section 25a, meaning that “all of the named plaintiffs here, as well as all juvenile offenders convicted of first-degree murder whose cases were final in Michigan at the time of Miller, will be subject to resentencing” in accordance with that statute. Consequently, defendants insist that “plaintiffs’ federal case is now moot and

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should be dismissed.” Plaintiffs disagree, arguing that Michigan’s legislative fix “is not a facially sufficient remedy” for what everyone appears to agree are Miller violations in the wake of Montgomery, and asserting that “this Court should affirm and remand for the [district] court to enforce its order requiring the state to propose a mechanism that provides a meaningful opportunity for release for youth serving mandatory life without parole sentences in Michigan.” It is worth noting that the parties appear to agree on at least one thing post Montgomery: plaintiffs’ mandatory sentences to life in prison with no hope of parole cannot stand. See Montgomery, 136 S. Ct. at 731 (“[A] court has no authority to leave in place a conviction or sentence that violates a substantive rule [of constitutional law], regardless of whether conviction or sentence became final before the rule was announced.”).
The district court has not yet had an opportunity to consider the legislative changes wrought by Michigan Public Act No. 22—portions of which the Michigan courts have already declared unconstitutional, see Skinner, 2015 WL 4945986 at *12–20—or the Supreme Court’s guidance in Montgomery. Nor has it been able to address whether its injunctive order might coexist with these authorities or, if not, how the order might be revised to do so. Moreover, even if defendants were correct that these changes in the legal landscape could be said to effectively moot plaintiffs’ claims regarding section 234(6) of Michigan’s correctional code, “in instances where [a case’s] mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously,” the Supreme Court has counseled that the best “practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482 (1990). We find this the proper procedure to follow.
After careful consideration of the substantive issues at stake, the current procedural posture of this case, and the significant intervening legal changes described above, we vacate the district court’s challenged orders and remand with instructions to provide the parties leave to amend their pleadings and to supplement the record as needed, particularly with respect to the current statutory scheme governing plaintiffs’ sentences and eligibility for parole. We vacate the court’s prior orders to enable the court to address remedies in the context of the new legal

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landscape and because it is necessary in light of our instructions to allow the parties leave to amend the pleadings. If, for example, plaintiffs file a second amended complaint directly challenging Michigan’s 2014 legislative fixes, there may be no question that the eight plaintiffs the district court previously dismissed are entitled to pursue such a claim.
We also recognize that there is some confusion regarding this circuit’s precedent on whether or not class certification is required to extend declaratory and injunctive relief to nonplaintiffs. In Craft v. Memphis Light, Gas & Water Division, 534 F.2d 684 (6th Cir. 1976), we affirmed the district court’s denial of a motion for class certification, stating that a ruling on the individual plaintiff’s claim for relief would “‘accrue to the benefit of others similarly situated’ and, consequently . . . ‘[n]o useful purpose would be served by permitting this case to proceed as a class action[.]’” Id. at 686 (citation omitted). We distinguished Craft, however, in Ball v. Wagers, 795 F.2d 579 (6th Cir. 1986). There we reversed a denial of class certification, explaining that “denying class certification after [an] extensive, unexplained delay in this case, which ultimately led to the mooting of the named plaintiffs’ claims, renders the [Craft] ‘lack of need’ rationale relied upon by the magistrate and the district court unpersuasive.” Ball, 795 F.2d at 581. We further noted that the claims presented in Ball “may be the kind that could evade judicial review absent a class certification[,]” and we remanded with instructions for the district court to reconsider whether or not class certification was appropriate. Id. In Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003) (en banc), we seemingly distanced ourselves from Craft yet again, holding that “[d]eclaratory judgment is effective as to only the plaintiffs who obtained it” and that “[w]hen a class has not been certified, the only interests of concern are those of the named plaintiffs.” Id. at 701. But the Supreme Court reversed Tesmer for lack of standing, see Kowalski v. Tesmer, 543 U.S. 125, 134 (2004), and our circuit has yet to revisit the subject. Based on our class certification jurisprudence subsequent to Craft, on remand the district court should reconsider whether class certification may indeed be necessary and appropriate in this case, particularly in light of defendants’ apparent history of refusing to apply the court’s orders to anyone other than the named plaintiffs.

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CONCLUSION Montgomery and Miller make clear that courts may not impose mandatory life sentences without parole on juvenile offenders regardless of when an offender’s conviction became final. For the foregoing reasons, we VACATE the district court’s orders and REMAND with instructions to grant the parties leave to amend the pleadings and supplement the record. Defendants’ motion to dismiss plaintiffs’ cross-appeal is DENIED AS MOOT.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 13-2661/2705

HENRY HILL; JEMAL TIPTON; DAMION TODD; BOBBY HINES; KEVIN BOYD; BOSIE SMITH; JENNIFER PRUITT; MATTHEW BENTLEY; KEITH MAXEY; GIOVANNI CASPER; JEAN CARLOS CINTRON; NICOLE DUPURE; DONTEZ TILLMAN,
Plaintiffs - Appellees/Cross - Appellants,

FILED
May 11, 2016
DEBORAH S. HUNT, Clerk

v.

RICK SNYDER, in his official capacity as Governor of the State of Michigan; DANIEL H. HEYNS, in his official capacity as Director, Michigan Department of Corrections; THOMAS R. COMBS, in his official capacity as Chair, Michigan Parole Board, jointly and severally,
Defendants - Appellants/Cross - Appellees.
Before: MERRITT, STRANCH, and DONALD, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s orders are VACATED, and the case is REMANDED with instructions to grant the parties leave to amend the pleadings and supplement the record. IT IS FURTHER ORDERED that Defendants’ motion to dismiss Plaintiffs’ cross-appeal is DENIED AS MOOT.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, KEITH MAXEY, GIOVANNI CASPER, JEAN CARLOS CINTRON, NICOLE DUPURE and DONTEZ TILLMAN, individually and on behalf of all those similarly situated,

Case No. 10-cv-14568 Hon. John Corbett O’Meara CLASS ACTION

Plaintiffs,

vs.

RICK SNYDER, in his official capacity as Governor of the State of Michigan, HEIDI E. WASHINGTON, in her official and individual capacity as Director of the Michigan Department of Corrections, MICHAEL EAGEN, in his official and individual capacity as Chair of the Michigan Parole Board, and BILL SCHUETTE, in his official capacity as Attorney General of the State of Michigan,

Defendants. /

SECOND AMENDED COMPLAINT & JURY DEMAND

DEBORAH LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620
STEVEN M. WATT EZEKIEL R. EDWARDS

MARGARET A. NELSON (P30342) ANN M. SHERMAN (P67762) JOSEPH T. FROEHLICH (P71887) Michigan Dep’t of Attorney General P.O. Box 30736 Lansing, MI 48909

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BRANDON J. BUSKEY American Civil Liberties Union
Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870

Attorneys for Defendants

DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) American Civil Liberties Union Fund
of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824

Attorneys for Plaintiffs /

NOW COME Plaintiffs, by and through their counsel, and for their Second

Amended Complaint, state as follows:

INTRODUCTION 1. This action for declaratory and injunctive relief and damages is

brought under 42 U.S.C. § 1983 to enforce Plaintiffs’ rights under the United

States Constitution and customary international law.

2. Plaintiffs are individuals who were charged and tried as adults for

crimes committed when they were children under the age of eighteen and punished

by a mandatory sentence of life imprisonment. Based on their convictions, the

Michigan parole statute, M.C.L. § 791.234, deprived Plaintiffs of a meaningful

opportunity for release.

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3. Plaintiffs filed this action on November 17, 2010, seeking a declaration that M.C.L. § 791.234 was unconstitutional insofar as it excludes children convicted of first degree homicide offenses and denied Plaintiffs a meaningful opportunity for release.
4. This Court, on January 30, 2013, issued a declaratory judgment, ruling that Michigan’s parole statute, which deprived children convicted of first degree homicide offenses any opportunity for parole, was unconstitutional.
5. On August 12, 2013, this Court set forth the reach of its declaratory judgment, holding that every person convicted of first degree homicide murder in the State of Michigan as a juvenile, and who was sentenced to life in prison shall be eligible for parole.
6. Nearly four years ago, the United States Supreme Court ruled in Miller v. Alabama, 132 S. Ct. 2455 (2012), that Plaintiffs’ mandatory life sentences are unconstitutional, and all youth subject to these sentences are entitled to a meaningful opportunity for release. The Court ruled on January 25, 2016, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that this ruling applies retroactively.
7. Despite these rulings, Plaintiffs are still being treated as serving nonparolable life sentences and remain unconstitutionally subject to life imprisonment without a meaningful opportunity for release. Defendants continued
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to imprison all youth issued a mandatory life sentence without providing any

opportunity for parole or rehabilitative programming based on their assertion that

Plaintiffs are still serving nonparolable life sentences.

8.

On March 4, 2014, M.C.L. § 769.25 and 769.25a were enacted and

set forth a legislative scheme for resentencing of youth in light of Miller and

Montgomery. The legislation provides that a child may be punished with a

sentence of life in prison without the possibility of parole, or a term of years, and it

fails to provide any meaningful opportunity for release in violation of Plaintiffs’

constitutional rights.

9. The legislation also:

a. requires a minimum punishment of 25 to 40 years in prison

without any opportunity for release and without consideration,

for purposes of proportional sentencing, of the mitigating

factors of the child’s age and its hallmark features that reflect a

lesser degree of culpability and a unique capacity for

rehabilitation as compared to adults;

b. otherwise requires a punishment of up to 60 years in prison

without guaranteeing a meaningful opportunity for release;

4

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c. retroactively deprives individuals issued term-of-years sentences of the good-time and/or disciplinary credits they were entitled to accumulate at the time of their offense;
d. fails to provide any guidelines or timelines for reviewing youths’ current unconstitutional sentences and treatment as non-parolable lifers.
10. Plaintiffs seek a declaration that Michigan’s laws, policies and practices, insofar as they mandate that Plaintiffs serve life imprisonment without a meaningful opportunity for release on parole, violate the United States Constitution’s Eighth and Fourteenth Amendments, and customary international law.
11. Further, Plaintiffs as persons sentenced to life in prison for offenses committed before they were eighteen years old seek an order that Defendants afford them a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation. Plaintiffs do not challenge their judgments of conviction, do not seek to invalidate their life sentences, and do not seek an order from this Court ordering their release.
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JURISDICTION AND VENUE 12. 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. § 1343(a), which authorizes federal courts to hear civil rights cases. 13. Venue is proper in this Court, as the Defendants conduct their business across the state, including in the Eastern District of Michigan, and some of the named Plaintiffs are incarcerated in the Eastern District of Michigan.
PARTIES Plaintiffs 14. Plaintiff Henry Hill was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Saginaw County, Michigan, for crimes committed when he was sixteen years old. Plaintiff Hill has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Hill is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Henry has served thirty-four years in adult prison. 15. Plaintiff Jemal Tipton was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes committed when he was seventeen years old. Plaintiff Tipton has never been afforded a meaningful opportunity to obtain release on parole. He is currently
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in the custody of the Michigan Department of Corrections. Plaintiff Tipton is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Jemal has served twenty-eight years in adult prison.
16. Plaintiff Damion Todd was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for crimes committed when he was seventeen years old. Plaintiff Todd has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Todd is imprisoned at the Ryan Correctional Facility in Wayne County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Damion has served twenty-nine years in adult prison.
17. Plaintiff Bobby Hines was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for crimes committed when he was fifteen years old. Plaintiff Hines has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Hines is imprisoned at the Earnest C. Brooks Correctional Facility in Muskegon County, Michigan, where he is assigned to the lowest custody level possible for an
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individual serving this sentence. Bobby has served twenty-six years in adult prison.
18. Plaintiff Kevin Boyd was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for a crime committed when he was sixteen years old. Plaintiff Boyd has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Boyd is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Kevin has served twenty years in adult prison.
19. Plaintiff Bosie Smith was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Washtenaw County, Michigan, for a crime committed when he was sixteen years old. Plaintiff Smith has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Smith is imprisoned at the Chippewa Correctional Facility in Chippewa County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Bosie has served twenty-three years in adult prison.
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20. Plaintiff Jennifer Pruitt was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes committed when she was sixteen years old. Plaintiff Pruitt has never been afforded a meaningful opportunity to obtain release on parole. She is currently in the custody of the Michigan Department of Corrections. Plaintiff Pruitt is imprisoned at the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence. Jennifer has served twenty-two years in adult prison.
21. Plaintiff Matthew Bentley was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Huron County, Michigan, for crimes committed when he was fourteen years old. Plaintiff Bentley has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Bentley is imprisoned at the Richard A. Handlon Correctional Facility in Ionia County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Matthew has served eighteen years in adult prison.
22. Plaintiff Keith Maxey was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan,
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for crimes committed when he was sixteen years old. Plaintiff Maxey has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Maxey is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Keith has served eight years in adult prison.
23. Plaintiff Giovanni Casper was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Kent County, Michigan, for crimes committed when he was seventeen years old. Plaintiff Casper has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Casper is imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Giovanni has served nine years in adult prison.
24. Plaintiff Jean Carlos Cintron was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes committed when he was sixteen years old. Plaintiff Cintron has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Cintron is imprisoned in the Thumb Correctional Facility in Lapeer County,
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Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Jean has served seven years in adult prison
25. Plaintiff Nicole Dupure was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Macomb County, Michigan, for crimes committed when she was seventeen years old. Plaintiff Dupure has never been afforded a meaningful opportunity to obtain release on parole. She is currently in the custody of the Michigan Department of Corrections. Plaintiff Dupure is imprisoned in the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence. Nicole has served ten years in adult prison.
26. Plaintiff Dontez Tillman was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for a crime committed when he was fourteen years old. Following the United States Supreme Court’s decision in Miller v. Alabama, he was resentenced to serve between 32.5 and 60 years in prison. Plaintiff Tillman has never been afforded a meaningful opportunity to obtain release on parole. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Tillman is imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to
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the lowest custody level possible for an individual serving this sentence. Dontez has served six years in adult prison.
Defendants 27. Defendant Rick Snyder is Governor of the State of Michigan. Defendant Snyder is invested with executive power pursuant to Art. V § 1 of the Michigan Constitution and is responsible for ensuring compliance with the laws of the State of Michigan. Governor Snyder is sued in his official capacity. 28. Defendant Heidi E. Washington is Director of the Michigan Department of Corrections. Defendant Washington has authority over the Michigan Parole Board pursuant to M.C.L. § 791.231a, which determines which Michigan prisoners are eligible for parole. Defendant Washington also has authority over policies and placements regarding programming for prisoners. She is sued in her official capacity and in her individual capacity. 29. Defendant Michael Eagen is Chair of the Michigan Parole Board. Under M.C.L. § 791.234, the Parole Board determines which prisoners, under their jurisdiction, to parole. Defendant Eagen is sued in his official capacity. 30. Defendant Bill Schuette is Attorney General of the State of Michigan. As Attorney General he has supervisory power over prosecuting attorneys throughout Michigan. Defendant Schuette is sued in his official capacity
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BACKGROUND FACTUAL ALLEGATIONS Michigan’s Former Sentencing Framework
31. Since abolishing capital punishment, the harshest punishment the State of Michigan can impose against any individual for any crime or series of crimes is a life sentence without the possibility of parole.
32. Michigan’s Penal Code sets forth the punishments for crimes categorized as first-degree homicides, which include premeditated murder, felony murder, and murder of a peace officer. M.C.L. § 750.316.
33. Michigan’s Code of Criminal Procedure provides that a person who aids or abets a murder is punishable as if that person had directly committed the offense. M.C.L. § 767.39.
34. The mandatory punishment for first-degree murder, whether it be premeditated, felony murder or aiding and abetting a murder, is imprisonment for life. M.C.L. § 750.316.
35. Plaintiffs’ judgments of conviction and sentence state that they were sentenced to imprisonment for life for a conviction under M.C.L. § 750.316.
36. Prior to 2013, this mandatory punishment applied to individuals, including Plaintiffs, who committed offenses before they were 18 years old.
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37. Michigan law grants the Department of Corrections’ Parole Board (“Michigan Parole Board”) the authority to release individuals sentenced to life if a prisoner meets certain specified criteria. M.C.L. § 791.234.
38. Since 2008, the Michigan Parole Board has had the authority to grant release to individuals sentenced to life imprisonment after serving 15 years except for individuals serving a life sentence for a conviction under M.C.L. § 750.316.
39. Prior to 2013, Plaintiffs were excluded from ever being considered for release on parole because of their mandatory convictions and life sentences imposed under M.C.L. § 750.316.
40. On January 30, 2013, this court struck down as unconstitutional M.C.L. § 750.316 as it applied to children convicted of first degree homicide offences.
41. At this time, Defendants are continuing to apply M.C.L. § 791.234(6) to exclude Plaintiffs, and all youth convicted of first degree homicide offences, from the Parole Board’s jurisdiction.
Punishment of Children in Michigan 42. Over 360 youth are serving a life sentence in Michigan, for offenses committed as children, without any meaningful opportunity for release upon maturation and rehabilitation. Michigan is one of only three states that authorizes
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the imposition of life-without-parole sentences on children as young as 14 for all homicide offences including felony murder.
43. Michigan, Pennsylvania, Texas, Florida and Louisiana account for two-thirds of all youth sentenced to life without parole sentences, with Michigan having the second highest number of youth sentenced to life without possibility of release.
44. Since Miller, Texas and Florida have abolished life-without-parole sentences for youth. Pennsylvania has abolished the sentence for felony murder, and has committed to not seek life-without-parole sentences upon resentencing of youth convicted of first degree premeditated homicide offenses. Louisiana and Michigan remain the states who still impose this sentence on any significant level.
45. Thirty-six states now either prohibit life-without-parole sentences for youth or have not imposed this sentence since Miller.
46. Michigan has sentenced or resentenced twenty-eight youth convicted of first degree homicide offences after Miller; and half of these children have received life-without-parole sentences.
The Current Michigan Sentencing Scheme 47. In January 2013, this Court granted summary judgment in favor of Plaintiffs on their First Amended Complaint. The Court declared M.C.L. § 791.234(6) unconstitutional as applied to Plaintiffs and all others serving life
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sentences for first-degree homicide offenses committed before they were under 18 years of age. In November 2013, the Court ordered Defendants to create an administrative structure to allow persons who committed their offenses when they were under 18 years of age to be considered for parole. Defendants appealed and this ruling was stayed.
48. On March 4, 2014, Michigan enacted M.C.L. §§ 769.25 and 769.25a. These statutes provide that Plaintiffs and similarly-situated individuals are subject to resentencing, including the re-imposition of their life-without-parole sentences.
49. The legislation does not establish a time frame for when individuals must be resentenced.
50. Under the new legislation, the Prosecutor may seek a life-withoutparole sentence for persons who commit certain homicide offenses when they are below 18 years of age by filing a motion in the state trial court.
51. If the prosecutor does not file such a motion, or if the court chooses not to impose a life-without-parole sentence, the court must sentence the individual to a term-of-years sentence with a minimum sentence of between 25 and 40 years imprisonment, and a maximum sentence of no less than 60 years.
52. The new legislation does not require that the resentencing court consider the child status of an offender, or any other Miller factor, before imposing
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a term-of-years sentence, and does not require a proportional sentence that considers the child’s status and hallmark characteristics.
53. For individuals who are resentenced to a term-of-years sentence, there is no opportunity for release on parole until the minimum sentence is served in its entirety. After the minimum sentence has been served, parole eligibility and determinations are governed by M.C.L. §§ 791.231-791.246, the same parole process that applies to adults.
54. The parole review process does not require consideration of the Miller factors; nor does it take into consideration the age of the offender as a mitigating factor.
55. Should Plaintiffs be resentenced pursuant to the legislation, they will not be credited with any earned good-time or disciplinary credits accumulated prior to their being resentenced.
56. On August 5, 2015, Plaintiff Dontez Tillman was resentenced under M.C.L. § 769.25 to a term of imprisonment of thirty-two and a half to sixty years. This sentence provides that Dontez only becomes eligible for parole consideration at the age of forty-six and a half, and does not provide for any consideration of his child status and lesser culpability at the time of his offense, and growth or maturation in determining his eligibility for parole.
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57. All other Plaintiffs remain in Defendants’ custody serving the same mandatory sentences of life-imprisonment imposed following their convictions. Defendants continue to assert that the Michigan Parole Board does not have jurisdiction to consider them for parole. None have been afforded any other meaningful opportunity for release based on their reduced culpability at the time of their offenses and their unique capacity for change and rehabilitation as compared to adult offenders.
58. Defendants continue to deny Plaintiffs rehabilitative programming including rehabilitative programming specifically recommended in their sentencing reports as a condition of parole, substance abuse, violence prevention, anger management and skill based rehabilitative programs based on Defendants’ continued consideration of them as serving life-without-parole sentences.
GENERAL FACTUAL ALLEGATIONS 59. None of the Plaintiffs have been considered for release on parole, nor afforded any other meaningful opportunity for release based on their child status and lesser culpability as compared to adults when they committed their offenses, and their demonstrated maturity and rehabilitation. 60. Plaintiffs did not have the same maturity and sense of responsibility as adults when they committed their offenses.
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61. The State of Michigan recognizes this relative lack of maturity and responsibility based on their age in other areas of the law by prohibiting persons below 18 years of age from voting, entering into valid contracts, serving on juries, joining the armed forces, smoking tobacco, marrying without parental consent, leaving school, working full time, or applying for a driver’s license without first undergoing youth-specific driver education classes.
62. Plaintiffs were more vulnerable to adult influences and peer pressure than adults.
63. Plaintiffs were more likely to act impetuously without regard for consequences as compared to adults.
64. Plaintiffs have a greater capacity for change, growth and rehabilitation than adults.
65. Plaintiffs’ ineligibility earned disciplinary credits and earned good time renders immaterial maturity, good behavior, character and rehabilitation for purposes of consideration of release on parole.
66. The sentencing schemes under which Plaintiffs are being punished do not provide for a meaningful opportunity to obtain release upon demonstration of their maturity and rehabilitation.
67. The imprisonment of Plaintiffs without affording them a meaningful opportunity for release once they have grown and matured fails to take into
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consideration whether Plaintiffs’ actions were as a result of transient immaturity and whether they have been rehabilitated.
68. Plaintiffs’ ages at the time they committed their offenses means that they will be punished more severely than adults who may have been given the same sentence because they will serve more years and a greater percentage of their lives in prison than adult offenders.
69. There is no legitimate penological justification for punishing Plaintiffs without also affording them a meaningful opportunity for release because such a denial fails to serve any of the recognized penal objectives.
70. Michigan accounts for over 15% of all persons in the United States who were subjected to a life-without-parole sentence for crimes committed when they were children and 40% of individuals serving life-without-parole sentences in those states that continue to authorize the sentence.
71. Michigan is in the minority of states that continues to impose lifewithout-parole sentences for persons who commit their offenses when they are below 18 years of age.
72. Of the five states responsible for nearly two-thirds of individuals serving life-without-parole sentences for crimes they committed below 18 years of age, only Michigan has failed to amend its laws to restrict the imposition of such life-without-parole sentences.
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73. Currently, fewer than 15 states continue to allow life-without-parole sentences to be imposed on persons below 18 years of age in the manner that Michigan does.
74. The United States is the only country in the world that authorizes and imposes life-without-possibility-of-release sentences on persons who commit offenses when they were below 18 years of age.
75. The United Nations Human Rights Committee identified this practice as non-compliant with Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).
76. The United States is a party to the ICCPR, but has reserved the right to treat juveniles as adults only in “exceptional circumstances.”
77. Michigan’s laws do not constitute such an exceptional circumstance, as they presumptively treat all persons below 18 years of age involved in homicide offenses as adults and continue to detain such persons as if they were adults for such involvement without affording them a meaningful opportunity for release based on upon demonstrated rehabilitation.
78. In December 2006, the United Nations General Assembly passed a resolution, 185-1 (United States), calling upon all nation states to abolish life imprisonment without possibility of release sentences for those persons who commit offenses when they are below 18 years of age.
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79. In 2008, the United Nations Committee on the Elimination of Racial Discrimination in its consideration of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination found that the practice of sentencing persons who commit offenses when they are below 18 years of age to life without possibility of release violated key provisions of the treaty, and called upon the United States to end the practice and to review the situation of prisoners currently serving such sentences.
80. Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990), ratified by every member state of the United Nations except the United States, explicitly prohibits the imposition of “life imprisonment without the possibility of release … for offenses committed by persons below 18 years of age.”
81. In Michigan, 363 individuals are serving sentences of mandatory life imprisonment for first degree homicide convictions for offenses they committed when they were below 18 years of age. Defendants do not consider any of them parole-eligible, and none of them has been afforded a meaningful opportunity for parole or release.
82. One hundred and forty-three have served over 25 years. Two hundred and ninety-six have served over 15.
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83. None have had an opportunity for parole in the years following this Court’s ruling, nor have there been any parole opportunity or resentencing under the legislation since the Montgomery decision, over six months ago.
84. Of these youth convicted after Miller, 6 of the 11 have received lifewithout-parole sentences by judges.
85. Of those youth resentenced after Miller as on direct appeal, 8 of the 17 received life-without-parole sentences.
PLAINTIFFS’ INDIVIDUAL FACTUAL ALLEGATIONS Henry Hill
86. One evening in 1980, Henry Hill, aged sixteen, went with two of his cousins, Larnell Johnson and Dennis Johnson, to a park in Saginaw, Michigan. There they saw Anthony Thomas, a young man with whom Henry’s cousins had prior conflicts. Henry’s cousins shot at Anthony Thomas. Henry was reported to have been shooting into the air before he fled the park with his cousin Dennis. His other cousin, Larnell Johnson, remained, shooting and killing Anthony Thomas.
87. At the time of the incident, Henry had been attending Saginaw High School where he had undergone psychological testing and found to have a verbal IQ of 69, a performance IQ of 58, and a full scale IQ of 61. He had a reading word recognition level of 3.6 grade level, a spelling performance at a 3.0 grade level, and an arithmetic ability at 3.3 grade level. The psychologist who conducted the
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tests concluded that these results showed signs of a suppressed mental age, and that his general insight and maturity level was that of a pre-adolescent.
88. Henry was charged for his participation in the Anthony Thomas death with aiding and abetting first degree murder. Based on this charge, the juvenile court waived its jurisdiction over Henry and one of his co-defendants, sixteenyear-old, Dennis Johnson. Both stood trial as adults.
89. Following his trial, Henry was convicted by a jury of first degree aiding and abetting murder.
90. Henry’s pre-sentence investigation report notes that his intelligence classification was in the mentally defective range with an academic ability at the third grade level. In the examiner’s opinion Henry had the maturity of a nine-yearold child and was motivated by instant gratification, and the desire to be accepted and secure.
91. The trial court had no discretion to consider Henry’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Henry as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board was never given jurisdiction to consider Henry for parole. At no stage in his prosecution was Henry’s juvenile status considered and,
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following his conviction, he has never been afforded a meaningful opportunity for release based on his demonstrated maturity and rehabilitation.
92. Henry Hill is now fifty-two years old and has served thirty-four years in prison for his actions. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
93. He works and participates in his bible study group for which he consistently receives excellent reports. Henry has not had a misconduct citation for over a decade and has a custody level II, the lowest possible for his sentence. He is regarded as a model prisoner.
Jemal Tipton 94. In 1987, Jemal Tipton, then aged seventeen, participated in a robbery at the Hunter’s Ridge Condominium Complex in Farmington Hills, Michigan with two adults, Nellie McInnis, a forty-six-year-old acquaintance of his mother, and his older brother, Anthony Parks. 95. Nellie McInnis drove Jemal and Anthony to where the robbery took place. She gave Jemal a .22 caliber pistol and identified an acquaintance of hers, Edward Chapman, as the person to rob.
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96. Armed with the .22 pistol, Jemal approached Edward Chapman and demanded his valuables. A scuffle ensued and the gun went off twice. One shot struck Edward Chapman, killing him.
97. Jemal had a difficult upbringing in which he was shuttled between family members and friends during his mother’s stays in jail or drug treatment facilities before ending up in the care of Nellie McInnis, a family acquaintance with a long criminal history.
98. Under Michigan laws then in force, Jemal was automatically charged as an adult with felony murder. He was tried as an adult, and after trial he was convicted and given the mandatory adult sentence for the offense, life in an adult prison.
99. In sentencing Jemal, the trial court had no discretion to consider his juvenile status.
100. Michigan law required that the trial court punish Jemal as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment.
101. Because of the nature of the offense, the Michigan Parole Board never had jurisdiction to consider Jemal for parole. At no stage in his prosecution was his juvenile status considered and he has never been afforded a meaningful
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opportunity for release based on this status and his demonstrated maturity and rehabilitation.
102. Since his incarceration, Jemal has taken every opportunity to rehabilitate himself. He obtained his GED and electrician certification. He currently earns three dollars a day doing electrician work detail and mentors younger prisoners, encouraging them to continue their education while in prison. Defendants continue to preclude Jemal from participation in rehabilitation programs based on their consideration of Jemal as nonparolable.
103. Jemal has exhausted all of his post-conviction appellate options. 104. Since his incarceration, Jemal has been given a total of eight misconduct tickets, the last one occurring over twenty years ago. Jemal has now served twenty-eight years in adult prison.
Damion Todd 105. In 1986, Damion Todd was a seventeen-year-old entering his senior year in high school. On a Saturday night in August, Damion and three friends drove to an end of the summer party in Detroit, Michigan. A short while after they had left the party and were driving home, a group of men drove by and shot at them in their car. Convinced that they were from the party, one of Damion’s companions suggested they get his gun and look for the men.
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106. They drove back to the party where they were again shot at. Damion’s friend then gave him a shotgun, and told him to fire back. Damion asserts he intended only to fire at the group that shot at them to scare them. However, a young woman who was at the party, Melody Rucker, was struck and died shortly thereafter.
107. At the time of the incident, Damion was a senior at Henry Ford High School in Detroit. He was captain of his football team and had received Letters of Intent from several Division I AA football schools. Damion had no prior involvement in any juvenile or adult criminal proceedings.
108. Damion had volunteered for two summers with the Detroit Police Cadets, a member of the Police Athletic League sports teams, and he was active in his church choir. He worked part-time in a family restaurant in Southfield, as well as in his family’s business.
109. Damion was automatically charged and tried as an adult with assault with intent to kill, first degree murder and felony firearm possession. Damion was subsequently convicted on these charges and sentenced to life on the murder charge, 100 to 200 years on the assault conviction and two years for felony firearm possession.
110. The Michigan Department of Corrections’ psychologist’s intake report noted that persons with profiles as similar to Damion’s “tend to be persons
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with very good institutional and post-release adjustment” and that he “could have been dealt with just as efficiently and less expensively through probation in the community,” as “by the time Mr. Todd reaches his early 30’s, he would have matured out of a youthful exuberance and indiscretions which resulted in the needless and tragic death of an innocent female bystander.”
111. Damion’s sentence for the assault with intent to murder was reversed in 1996 as being excessive and an abuse of discretion. He was resentenced to ten to thirty years on this charge. His mandatory life sentence for his conviction under M.C.L. § 750.316, however, remains.
112. The trial court had no discretion to consider Damion’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Damion as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Damion for parole. At no stage in his prosecution was Damion’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
113. Since his incarceration, Damion has obtained certificates in food technology, custodial maintenance, officiating certificates for basketball, volleyball, baseball and Jaycees (a worldwide organization that does humanitarian
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acts such as donating toys to children). He is a member of the Prisoners of Christ Church and in 1987 he received his GED. Damion has received only four misconduct tickets in the twenty-four years he has been incarcerated. He acts as a mentor to young prisoners and is considered by prison officials to be a respectful, thoughtful adult who does his job with excellence and with no management problems. Defendants continue to preclude Damion Todd from rehabilitation programs based on their consideration of him as non parolable.
Bobby Hines 114. In 1989, fifteen-year-old Bobby Hines went with nineteen-year-old Christopher Young and sixteen-year-old Derius Woolfolk to confront James Warner about Warner’s alleged involvement in the theft of a jacket from a boy in the neighborhood. The boy had reported that James Warner had threatened him and taken his jacket for money owed on a drug deal. 115. When the young men saw Warner, Derius Woolfolk fatally shot him and wounded another man he was with. Bobby, who touched neither the weapon nor the victims, was charged as an adult with felony murder. He was tried and subsequently convicted on this charge and sentenced to life imprisonment. 116. The incident occurred in the summer of 1989 shortly after Bobby had completed his eighth grade education at Brooks Middle School in Detroit, Michigan, where he had regular attendance and average grades.
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117. Bobby’s co-defendants – Christopher Young, who provided the weapon and sixteen-year-old, Derius Woolfolk, who fatally shot the victim – were both convicted of second degree murder and are serving parolable life sentences.
118. Bobby was automatically charged as an adult under Michigan’s post1988 laws without consideration of his juvenile status, mental maturity or relative culpability. He was tried as an adult and upon conviction the court had to choose between punishing him as an adult or releasing him at age twenty-one.
119. The pre-sentence investigation report set forth an evaluation of and plan for Bobby stating that there was no dispute as to what occurred but that due to the “seriousness of the present offenses this writer feels the services and facilities in the adult program would offer more time and circumstance to rehabilitate this defendant. For these reasons and for the best interest of the public welfare and security, it is recommended this defendant be sentenced to a period of incarceration in an adult facility.”
120. The court had no discretion but to sentence Bobby to “a period of incarceration in an adult facility.” Michigan law required that the trial court either sentence him as a juvenile to be released at age twenty-one or sentence him as an adult to a mandatory sentence of life. Bobby was sentenced to serve “the rest of [his] natural life to hard labor and solitary confinement.” Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Bobby for
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parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
121. Bobby is assigned to the lowest custody level available for his sentence. He has now served twenty-six years in prison on a life sentence. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programming due to Defendants consideration of him as nonparolable.
Kevin Boyd 122. In 1994, Kevin Boyd, then aged sixteen, was convicted of first degree premeditated murder for his role in the murder of his father, Kevin Boyd, Sr. by his mother, Lynn Boyd. 123. Kevin’s mother and father had been separated for six years on August 5, 1994, when Kevin’s mother and her lover asked Kevin to give them the keys to his father’s apartment, telling him they were going to kill his father. Kevin gave his mother the keys and did not report his mother’s threat to the police. The next day Kevin went to his father’s apartment, found him murdered and immediately called the police. 124. Four months later, on October 18, 1994, Kevin’s mother confessed to the murder and was arrested. Kevin was also arrested at this time. He was interrogated without counsel or a guardian present.
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125. Kevin admitted to having given the keys to his mother knowing that she was planning to murder his father and therefore takes responsibility for his role in the murder. He maintains he did not participate in the actual stabbing incident.
126. Kevin was automatically charged under Michigan’s post-1988 laws and tried as an adult without a judicial waiver hearing.
127. By the time of his sentencing Kevin had turned nineteen, giving the court a difficult choice: to sentence Kevin as a juvenile with mandatory release in two years or to sentence him as an adult which would result in a mandatory life sentence.
128. Despite positive reviews for Kevin from supervisors at the juvenile facility where he was detained pending trial and sentencing, opinions that he was nonviolent and unlikely to be a repeat offender and his involvement being based on his youthful desire to please his mother, it was felt that three years would be inadequate for the juvenile system to fully rehabilitate Kevin. Kevin was therefore sentenced to life imprisonment.
129. Kevin appealed and the Michigan Court of Appeals reversed his sentence, finding that the trial court had abused its discretion in sentencing Kevin as an adult, as Kevin was “a model prisoner, an excellent student, amenable to treatment, not a danger to the public and remorseful for his actions.” Four months later, with little explanation, the appeals court reversed itself.
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130. Michigan law required that Kevin be sentenced to mandatory life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Kevin for parole and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
131. During his incarceration, Kevin has received his GED, several trade certificates and is considered a model prisoner. Kevin has now served twenty years in adult prison and is a Level II prisoner, the lowest custody level for his sentence. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
Bosie Smith 132. In 1992, Bosie Smith, then aged sixteen, was involved in the stabbing death of an adult male during a fight. 133. Although the adult male who initiated the fight was eight years older and twice the size of the 103 pound Bosie, the jury rejected Bosie’s claim of selfdefense and convicted him on the first degree murder charge. 134. Bosie was born with fetal alcohol syndrome. He was abandoned by both his parents and was raised by his maternal grandmother. At the time of his
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conviction, he had completed schooling through the eighth grade. Bosie was a member of his school’s wrestling team and local church youth group.
135. Bosie was tried as an adult under Michigan’s automatic transfer laws. He was charged and tried as an adult without a judicial waiver hearing or any consideration of his juvenile status, mental age or maturity.
136. Both the case evaluator and the judge were troubled by the idea of sentencing Bosie to life imprisonment. Nevertheless, the case evaluator recommended adult sentencing because the only other option was four years in the juvenile system. The trial judge stated that he would sentence Bosie to a term of years if he had that option but that he was bound by the statute, which required a mandatory life sentence.
137. On appeal, the conviction was affirmed but the case was remanded upon a finding that the trial court abused its discretion in sentencing Bosie as an adult. The Court of Appeals ordered Bosie to undergo psychological testing to assist the trial court in its sentencing. However, the Supreme Court reversed the Court of Appeals remand order, finding that there was no clear error or abuse of discretion by the trial court.
138. Michigan law required that the trial court sentence Bosie to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Bosie for parole
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and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
139. Since his incarceration, Boise has completed his GED and has been involved in numerous prison groups, including Commitment to Change, Career Scope, Second Chance at Life, and Retired Greyhound Prison Program. Boise has also earned certificates pertaining to “Communication Skills,” “Diversity,” “Critical Thinking,” “Prisoner Rape Elimination Act Education,” and “Blood Bourn.” Presently, Bosie is in the process of completing training in custodial maintenance, conflict resolution, and substance abuse counseling training.
140. Bosie has been imprisoned in an adult facility for twenty-three years and throughout this time has maintained Level II custody, the lowest allowed for his offense. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants consideration of him as nonparolable.
Jennifer Pruitt 141. In 1992, Jennifer Pruitt, then aged sixteen, participated in a plan to rob one of her neighbors in Pontiac, Michigan. 142. Jennifer was a runaway from sexually and physically abusive parents when she committed her crime. She had no prior criminal record.
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143. At the time of the robbery, Jennifer was staying with Donnell Miracle, a twenty-three-year-old neighbor. While Miracle initiated the robbery plan, Jennifer was the one who singled out the neighbor, Elmer Heichel, as the person to rob.
144. Elmer Heichel let Jennifer and Miracle into his house at 1:30 a.m. on August 30, 1992. Jennifer went to use the bathroom and then went into the back room to steal the neighbor’s wallet. When she came out of the room she witnessed Miracle stabbing Elmer Heichel.
145. Jennifer did not participate in the stabbing. She also reported the incident and her involvement to the police that same day, leading to the subsequent arrest of Miracle.
146. The trial of Jennifer Pruitt was delayed. Jennifer’s remorse was so strong that she became self-injurious and was committed to a psychiatric facility where she was deemed incompetent to stand trial for over a year.
147. Under Michigan law, Jennifer was automatically charged as an adult with first degree murder and armed robbery. She was convicted of felony murder and sentenced as an adult based upon the pre-sentence investigation report’s assertion that the adult facilities would afford greater opportunities for her rehabilitation. However, the report failed to acknowledge that her rehabilitation
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and eventual return to society was impossible because under Michigan law, the court had no discretion to give her any sentence other than life in prison.
148. Given the nature of the offense for which Jennifer was convicted, the Michigan Parole Board did not have jurisdiction to consider her for parole, and she has never been afforded a meaningful opportunity for release based on her juvenile status and her demonstrated maturity and rehabilitation.
149. During Jennifer’s initial years in adult prison, she was raped by two male correctional officers. She has also undergone counseling to assist her recovery from post-traumatic stress disorder.
150. Jennifer has now served twenty-two years in prison. In the last ten years, Jennifer completed her GED and all recommended rehabilitation programs offered her. Jennifer has been waived to a Level I security classification, based on her special status as a counselor and mentor. She has been described as an “inmate role model and excellent worker, dependable, honest, sincere and reliable.” She has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
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Matthew Bentley 151. In 1997, Matthew Bentley was a fourteen-year-old ninth grader at Bad Axe High School in Michigan when he decided to break into a house in his neighborhood. 152. Matthew was the youngest child of his mother and father’s second marriage, and he was five when his father was incarcerated for sexual abuse of his sister. He was then raised by his mother. Matthew had a difficult time focusing at school, and in grade school he was diagnosed with Attention Deficit Disorder. He was prescribed Ritalin and he took the medication until his mother could no longer afford it. He was an active member of the Boy Scouts, young marines, and his local church. He helped with his brother-in-law’s business, swam, wrote poetry, played basketball and babysat his nieces and nephews. 153. Matthew began drinking alcohol at the age of eleven and using marijuana at age thirteen. In 1996, he was prescribed Zoloft for depression and Dexedrine for hyperactivity. His use of drugs and behavior resulted in foster care placement shortly before he committed his offense. 154. On the day of the incident, Matthew left school early and broke into a home he thought was unoccupied. While he was in the house, he found the owner’s gun, which he took with him while rummaging through the house for
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other valuables. When unexpectedly confronted by the owner of the house, Matthew shot and fatally wounded her before fleeing the scene.
155. Matthew was arrested the same day and, under the newly enacted Michigan law lowering the age for automatic waiver to adult prosecution to fourteen, was charged as an adult with felony murder, home invasion, and felony firearm possession.
156. Tried as an adult, Matthew was convicted of all three offenses and given the mandatory sentence of life imprisonment. The judge stated at his sentencing hearing that if he had a choice he would have given Matthew a term of years which would have afforded him the opportunity for release in fifteen years.
157. In addition to lowering the age for automatic adult prosecution to fourteen, the 1996 laws under which Matthew was charged and sentenced eliminated any discretion to consider Matthew’s juvenile status at sentencing. Matthew was charged, tried, convicted and sentenced without any discretion to consider his juvenile status, mental age or maturity. Michigan law required that the trial court punish Matthew as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Matthew for parole.
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158. At no stage of his criminal prosecution and sentencing was Matthew’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
159. Since being imprisoned, Matthew has earned his GED and a trade certificate in custodial maintenance. He acts as a mentor and a guardian to incoming young prisoners who are targeted by older sexually predatory inmates.
160. Matthew has now served eighteen years in prison. He is currently a Level II custody level prisoner, the lowest allowed for his offense. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
Keith Maxey 161. In 2007, Keith Maxey was sixteen when he accompanied two adult acquaintances to meet some men to buy marijuana. Three people were shot during the drug deal, including Keith. Keith and one of his co-defendants were subsequently charged with attempting to rob the drug dealers and in the death of one of them, who later died from his wound. 162. Keith’s co-defendant, Tyrell Adams, a twenty-year-old who shot the victims and committed the murder, pled to second degree murder and is serving a
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term of years. The second co-defendant Antoine Bailey, who was also a twentyyear-old, was charged and convicted of assault with intent to commit murder and sentenced to fifteen years.
163. Keith, the only juvenile involved in the incident, was automatically charged and tried as an adult and convicted of first degree felony murder.
164. Keith was then sentenced as an adult to a mandatory life sentence. 165. Keith appealed his conviction and sentence but the Court of Appeals affirmed the lower court’s order. His application for leave to appeal to the Michigan Supreme Court was denied. 166. The 1996 laws under which Keith was charged and sentenced eliminated any discretion to consider Keith’s juvenile status at sentencing. Keith was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Keith as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Keith for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation. 167. Keith has been imprisoned for eight years. During this time he has not received any misconduct citations, is taking classes to complete his GED and is
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classified to the lowest security level allowed for his offense. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
Giovanni Casper 168. In 2006, Giovanni Casper was in the tenth grade and had just turned seventeen when he attended a social event at a local roller rink with his friends. A fight broke out at the roller rink, between Giovanni and his friends and another group of teenagers, which was broken up by employees at the roller rink. Another fight began when Kenneth Dear approached Giovanni and began swinging punches. 169. The testimony at trial was that Giovanni was standing in front of Kenneth Dear at the roller rink when Dear suffered a single and fatal gunshot wound to the chest. The prosecution argued that although no one saw a gun in Giovanni’s hand his proximity to Mr. Dear and the testimony of prior bad blood between the two teens was sufficient to sustain a conviction. 170. Giovanni was automatically charged and tried as an adult and convicted of first-degree pre-meditated homicide. 171. Giovanni was sentenced as an adult to a mandatory life sentence.
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172. Giovanni maintains his innocence and appealed his conviction to the Michigan Court of Appeals which affirmed his sentence in 2009. His application for leave to appeal to the Michigan Supreme Court was denied.
173. The laws under which Giovanni was charged and sentenced eliminated any discretion to consider his juvenile status at sentencing. Giovanni was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Giovanni as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Giovanni for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
174. Giovanni has been imprisoned for nine years. During this time he has completed his GED and is classified to the lowest security level allowed for his offense. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as nonparolable.
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Jean Carlos Cintron 175. Jean Carlos Cintron was sixteen years old in 2008 when he went with his older brother and two of his brother’s friends to the house of Laval Crawford, a man alleged to have beaten and robbed Jean at gun point earlier in the day. 176. Laval Crawford and a group of his friends returned to the home armed with guns. Jean, with his brother and two co-defendants, ran out of the house, shooting their guns. Jean’s co-defendant Diego Galvan was convicted of fatally shooting Laval Crawford and sentenced to life for first-degree premeditated murder. Jean’s older brother was also convicted of first-degree murder and sentenced to life. 177. Jean, the only juvenile involved in the incident, was automatically charged as if he were an adult with felony murder. He was tried as an adult, without any consideration of his juvenile status, and convicted of felony murder and received the mandatory punishment of life without parole. 178. Prior to this offense, Jean was an 11th grade student, in excellent standing, at Pontiac Central High School, with no prior juvenile, misdemeanor or felony offenses. 179. At no stage of his criminal proceeding was Jean’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on demonstrated maturity and rehabilitation.
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180. Jean has already earned his GED and is currently a level II custody prisoner, the lowest level allowed for his offense. He has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants consideration of him as nonparolable.
Nicole Dupure 181. In 2004, Nicole was seventeen when her older boyfriend, William Blevins, was charged with robbery and murder of an elderly woman, Shirley Perry, in Macomb County, Michigan. 182. Initially, William Blevins admitted that he had acted alone in stabbing Shirley Perry but later, in exchange for a plea to second degree homicide, Blevins testified that Nicole aided and abetted the robbery and homicide William Blevins, the individual who actually committed the murder, is eligible for release in 2024. 183. Nicole Dupure was charged as an adult and convicted of first degree homicide under alternate theories of felony murder and first degree premeditated murder. She was given the mandatory sentence for an adult, life without possibility of parole, and incarcerated in an adult prison. 184. Nicole Dupure had no prior contact with the criminal justice system, juvenile record or misdemeanors. 185. At no stage of her criminal prosecution and sentencing was Nicole’s juvenile status considered, and she has never been afforded a meaningful
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opportunity for release based on this status and her demonstrated maturity and rehabilitation.
186. Since her imprisonment, Nicole has participated in all programs available to her and she has maintained an excellent work record.
187. The Court of Appeals affirmed Nicole’s first degree conviction and dismissed her second degree conviction.
188. Nicole is currently a Level II custody level prisoner, the lowest allowed for her offense. She has exhausted all prison educational programs and resources available to him and continues to be denied rehabilitative programing due to Defendants’ consideration of him as non-parolable.
Dontez Tillman 189. In 2008, Dontez Tillman was a fourteen year old middle school student who had just finished the seventh grade when he was arrested and charged as an adult with felony murder in Oakland County, Michigan. 190. Dontez was subsequently convicted of felony murder for his role in the beating of a homeless man, Wilford Hamilton, who died four days later as a result of his injuries. 191. Dontez, at fourteen years old, was charged as if he were an adult, tried and convicted at the age of fifteen. Dontez was then punished with a mandatory life-without-parole sentence to be served in an adult prison.
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192. Dontez’ co-defendants included Darrin Higgins, a 15 year old who was charged with the beating deaths of two men. Darrin pled to two charges of second degree murder and received a term-of-years sentence.
193. Another of Dontez’ co-defendants, Thomas McCloud, who, like Dontez, was also fourteen years old, was charged, tried, convicted as if he were an adult and sentenced to life-without- possibility of parole.
194. Following the Supreme Court’s decision in Miller v. Alabama, Dontez was resentenced to 32.5 to 60 years in prison by a judge. Under the statutory scheme then in place, there was no requirement that the resentencing court consider as mitigating factors Dontez’s age and its attendant characteristics. Nor is there any requirement that the Michigan Parole Board consider these factors, or Dontez subsequent growth and maturation when the Board considers him for release on parole. Dontez will never be afforded a meaningful opportunity for release based on his age at the time he committed his offense, or demonstrated maturity and rehabilitation.
195. Since his imprisonment, Dontez has been denied participation in recommended substance abuse programming and has not been provided violence prevention programming. Dontez recently completed his GED.
196. Dontez currently is a Level II custody level prisoner, the lowest allowed for his offense.
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CLASS ALLEGATIONS 197. Plaintiffs seek relief on behalf of themselves and all others similarly situated, namely all current individuals in Defendants’ custody who received a life sentence for a first-degree homicide offense committed by them when they were below 18 years of age. 198. After this Court granted summary judgment in Plaintiffs’ favor on the claims in Plaintiffs’ First Amended Complaint, Defendants refused to recognize that the Court’s order applied to anyone other than the named plaintiffs. 199. Therefore, it is necessary and appropriate to certify this case as a class action under the Federal Rules of Procedure, Rule 23(b)(2). Defendants 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. Plaintiffs seek class certification to ensure that this Court’s declaratory and injunctive orders will cover all individuals who are subject to Defendants’ continuing refusal to comply with Graham, Miller, Montgomery, and other related constitutional requirements pertaining to the punishment of persons who commit offenses when they are below 18 years of age. 200. The class is so numerous that joinder of all members is impracticable. There are over 360 individuals in Defendants’ custody serving life sentences for offenses committed when they were below 18 years of age.
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201. There are questions of law or fact common to the class. All class members are individuals in Defendants’ custody for first-degree homicide offenses committed when they were below 18 years of age, and the question of law common to the class is whether they are being denied a meaningful opportunity for release based on their demonstrated maturity and rehabilitation.
202. Plaintiffs’ claims are typical of the claims of the class. Plaintiffs’ claims arise from the same event, practice, or course of conduct that gives rise to the claims of other class members, and their claims are all based on the same legal theories.
203. Plaintiffs will fairly and adequately assert and protect the interests of the class. Plaintiffs have common interests with the other class members, and are not antagonistic to the interests of other class members. Additionally, the attorneys for Plaintiffs are experienced and capable litigators in the field of civil and human rights, including litigation on behalf of incarcerated individuals and in class actions.
CAUSES OF ACTION 42 U.S.C. § 1983
FIRST CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT AND DUE PROCESS) 204. M.C.L. § 791.234(6), as it continues to be enforced, violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments, because it deprives
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Plaintiffs punished with a mandatory sentence of life imprisonment to a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation.
SECOND CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT) 205. M.C.L. §§ 750.316, 769.25, 769.25a and 791.234 violate the Eighth Amendment, because they subject Plaintiffs to sentences of life imprisonment without the possibility of release on parole for offenses committed by them when they were below 18 years of age.
THIRD CAUSE OF ACTION (EX POST FACTO)
206. At the time of Plaintiffs’ offenses, the mandatory and maximum sentence for first-degree murder under M.C.L. § 750.316 was life imprisonment.
207. For individuals convicted of second-degree murder under M.C.L. § 750.317, the maximum sentence is also life imprisonment.
208. When Plaintiffs were convicted, Plaintiffs’ eligibility for release on parole while serving their life sentences was determined by M.C.L. § 791.234, which authorizes the Michigan Parole Board to exercise jurisdiction over individuals serving life sentences who were convicted of second-degree murder but prohibits the Board from considering for release on parole individuals serving life sentences for first-degree murder.
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209. Because M.C.L. § 791.234 is a provision of the Michigan corrections code and a component of the judgment of sentence, the legislature was and is free to enlarge the Parole Board’s jurisdiction to include prisoners serving life sentences for convictions under M.C.L. § 750.316, just as it has jurisdiction over prisoners serving life sentences for convictions under M.C.L. § 750.317.
210. Following the Supreme Court’s ruling in Miller v. Alabama, the legislature amended M.C.L. § 750.316 and enacted M.C.L. §§ 769.25 and 769.25a, which changed the maximum sentence for first degree murder from life imprisonment to life imprisonment without the possibility of parole for persons who committed their offenses when they were below 18 years of age.
211. The life-without-parole punishment of M.C.L. §§ 750.316, 769.25 and 769.25a, as applied only to Plaintiffs, and others below 18 years of age at the time they committed their offenses, violates the Ex Post Facto Clause of Article I, § 10, of the United States Constitution because it subjects Plaintiffs to a harsher sentence than the law in effect at the time of their offense and original sentencing and imposes this sentence only on Plaintiffs and those similarly situated.
FOURTH CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT AND DUE PROCESS) 212. Under the Eighth Amendment, a mandatory punishment of life in prison without the possibility of release on parole is cruel and unusual punishment
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when imposed for an offense committed by persons when they were below 18 years of age.
213. For children who face a punishment of imprisonment for the rest of their lives, the Eighth Amendment and Due Process Clause requires that opportunities to obtain release be meaningful.
214. Under M.C.L. §§ 750.316, 769.25 and 769.25a, Plaintiffs face a mandatory term of imprisonment that is the equivalent of life imprisonment. If Plaintiffs are not sentenced to life without the possibility of parole, they must be sentenced to a term of years that requires their imprisonment for up to a minimum of 60 years A 60 year sentence substantially exceeds their life expectancy in prison.
215. Under M.C.L. §§ 791.231 through 791.246, Plaintiffs who are subject to a prison term of no less than a 60-year maximum sentence are not guaranteed a meaningful opportunity for release on parole before the end of their natural lives due to Defendants’ policies and procedures governing access to prison programming and parole eligibility, consideration and release.
216. This statutory scheme violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments.
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FIFTH CAUSE OF ACTION (EX POST FACTO)
217. Until 1987, Michigan allowed reduction of sentences for those prisoners who served “good-time” without misconducts or accumulated disciplinary credits. Prisoners could earn from 5-15 days per month off their minimum sentences and could also reduce their maximum sentence. M.C.L. § 800.33.
218. Over 75 individuals serving life sentences have accumulated goodtime and/or disciplinary credits.
219. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court confirmed that Plaintiffs’ life sentences were void ab initio.
220. Under M.C.L. §§ 769.25 and 769.25a, Plaintiffs are now subject to term-of-years sentences to replace their void life sentences.
221. However, M.C.L. § 769.25a(6) deprives Plaintiffs of any good-time or disciplinary credit on time already served.
222. M.C.L. § 769.25a(6), as applied to Plaintiffs, violates the Ex Post Facto Clause of Article I, § 10, of the United States Constitution because it subjects Plaintiffs to a harsher punishment than the law in effect at the time of their offense and original sentencing.
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SIXTH CAUSE OF ACTION (EIGHTH AMENDMENT AGAINST DEFENDANTS WASHINGTON &
EAGEN) 223. In 2013, this Court declared that all individuals convicted and punished to mandatory sentences of life-without-possibility of parole for crimes committed when they were below 18 years of age to be serving parolable life sentences. 224. The Eighth Amendment and Due Process Clause require that any person below 18 years of age who is convicted of a homicide offense that does not reflect irreparable corruption must receive a fair and meaningful opportunity for release, including a right to educational and other rehabilitative programming, necessary for them to demonstrate growth, maturity, and suitability for release. 225. Defendants Washington and Eagen have continued to treat Plaintiffs as if they were serving nonparolable life sentences, and have and continue to deprive Plaintiffs of any meaningful opportunities for release. 226. Defendants Washington has refused and failed to provide programming, education, training and rehabilitation opportunities necessary for Plaintiffs to demonstrate their suitability for release. 227. Defendants have continued to deny Plaintiffs parole opportunities by invoking M.C.L. § 791.234, despite this statute having been declared unconstitutional. Therefore, Defendants have deprived Plaintiffs of meaningful
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opportunities to obtain release based on their demonstrated growth, maturity and rehabilitation.
228. Defendants continued refusal to provide Plaintiffs rehabilitative programming and consequent meaningful opportunities to obtain release on parole has resulted in Plaintiffs’ loss of liberty, extended their incarceration, causing them physical injuries and severe emotional distress.
229. Defendants’ failure to provide Plaintiffs with access to the programming, education, training, rehabilitation opportunities violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments.
SEVENTH CAUSE OF ACTION (CUSTOMARY INTERNATIONAL LAW) 230. By subjecting Plaintiffs to life in prison without a meaningful opportunity for release based on their juvenile status and their demonstrated maturity and rehabilitation, Defendants are punishing Plaintiffs with no legitimate penological justification, and as such subjecting them to cruel, inhuman or degrading treatment or punishment in violation of customary international law as reflected, inter alia, in the Universal Declaration on Human Rights, the ICCPR and the U.N. Convention on the Rights of the Child, which extend special measures of protection to children, prohibit life imprisonment without the possibility of release for offenses committed by persons below eighteen years of age, and condemn the practice as a form of cruel, inhuman or degrading treatment or punishment.
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231. Defendants’ violations of customary international law are actionable pursuant to 42 U.S.C. § 1983 in that customary international law has been held, since the Constitution’s adoption, to be part of the laws of the United States.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray for a judgment against Defendants and request that this Court: a. issue a declaratory judgment declaring that the continued incarceration of Plaintiffs without affording them a meaningful opportunity to obtain release based on their child status at the time they committed their offenses and demonstrated maturity and rehabilitation, violates Plaintiffs’ rights guaranteed by the United States Constitution, statutory law, and customary international law; b. issue a declaratory judgment that M.C.L. §§ 750.316, 769.25, 769.25a, and 791.234, as applied to Plaintiffs, violates the United States Constitution’s Ex Post Facto Clause and its Eighth and Fourteenth Amendments and customary international law; c. grant injunctive relief ordering Defendants to provide Plaintiffs with a meaningful opportunity to obtain release;
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d. retain jurisdiction over this action until the Court is satisfied that the unlawful laws, policies, practices, rules, acts and omissions complained of have been satisfactorily rectified;
e. Award damages to Plaintiffs and members of the class caused by Defendants’ unconstitutional actions including loss of liberty, denial of opportunities for release, continued incarceration, failure to provide meaningful parole opportunities, denial of rehabilitative programming, and infliction of severe emotional distress, including punitive damages where applicable.
f. award Plaintiffs attorney fees and costs; and g. award such other and further relief as seems just and proper.
DEMAND FOR TRIAL BY JURY NOW COME Plaintiffs by and through their counsel and hereby demand a trial by jury as to all those issues so triable as of right.

Dated: June 20, 2016

Respectfully submitted,
/s/ Deborah LaBelle Deborah LaBelle (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund

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of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 dkorobkin@aclumich.org msteinberg@aclumich.org kmoss@aclumich.org
Steven M. Watt Ezekiel R. Edwards Brandon J. Buskey American Civil Liberties Union
Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 swatt@aclu.org eedwards@aclu.org bbuskey@aclu.org
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on June 20, 2016, I electronically filed the foregoing
paper with the Clerk of the Court using the ECF system which will send
notification of such filing as well as via U.S. Mail to all non-ECF participants.
/s/ Deborah LaBelle Deborah LaBelle (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
59

 
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l 0 UNITEDSTATESDISTRICTCOUf
EASTERN DISTRICT OF MICHIG

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SOUTHERN DIVISION

JUL - 72016 UJ

HENRY HILL, et al.,

U.sC. LDEIRSKT'RSIOCFT~~ue
ANNARBOR.MI AT

Plaintiffs,

Case No. 10-cv-14568

vs. Hon. John Corbett O'Meara

RICK SNYDER, et al.,

Defendants.
-------------------------------·/
TEMPORARY RESTRAINING ORDER

Based on Plaintiffs' motion and brief and supporting affidavit, it appears that

there is an imminent danger that the State, acting through its prosecuting attorneys,

will, within the next two weeks and possibly within days, file motions pursuant to

M.C.L. § 769.25(a)(4)(b) to resentence youth who are serving mandatory life

sentences for first-degree homicide convictions and are eligible for parole per this

Court's orders of January 30, 2013 and August 12, 2013, to imprisonment for life

without the possibility of parole.

The Court finds that Plaintiffs will be irreparably harmed by such acts

insofar as they will cause substantial and unjustified delay in carrying out the Sixth

Circuit's mandate to address the proper remedies to give effect to this Court's

January and August 20 13 orders which declared the Michigan parole statute,

M.C.L. 769.234(6)(a), unconstitutional and declared that Plaintiffs and those

.....
similarly situated are eligible for parole. Defendants' acts will also expose Plaintiffs and putative class members to punishment that, if Plaintiffs prevail in this case, may constitute cruel and unusual punishment in violation of the Eighth Amendment.
The Court also finds that Defendants have notice of this motion and that the imminent nature of the harms described above requires that this Court rule on this motion immediately.
Balancing these irreparable harms with Plaintiffs' likelihood of success on the merits, the Court's consideration of whether others will be harmed if the relief requested is not granted, and the public interest in enabling this Court to address possible remedies identified by the Sixth Circuit without interference by Defendants and their agents, the Court concludes that the requested temporary restraining order should issue.
THEREFORE, IT IS ORDERED that Plaintiffs' motion for a temporary restraining order be granted;
IT IS FURTHER ORDERED that Defendants are temporarily restrained from filing motions for resentencing to life imprisonment without the possibility of parole pursuant to M.C.L. § 769.25a(4)(b);
IT IS FURTHER ORDERED that this order binds the parties, the parties' officers, agents, servants, employees, and attorneys pursuant to Fed. R. Civ. P.
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65(d)(2), such that Defendants must advise prosecuting attorneys of this order forthwith;
IT IS FURTHER ORDERED that no security as provided in Fed. R. Civ. P. 65(c) will be required since the matter involves constitutional issues affecting the public; and
IT IS FURTHER ORDERED that Defendants respond to Plaintiffs'
18, motion for a preliminary injunction by July 2016, and appear for a hearing on D the motion on July/~, 2016, at / '7/) a.m./p.m.
SO ORDERED. JOHN CORBETT O'MEARA United States District Judge
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(1 of 5)

Deborah S. Hunt 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
Filed: July 20, 2016

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

Mr. Daniel S. Korobkin Ms. Deborah A. LaBelle Ms. Margaret A Nelson Mr. Bernard Eric Restuccia Mr. Michael Jay Steinberg Mr. Steven M. Watt
Re: Case No. 16-2003, Henry Hill, et al v. Rick Snyder, et al Originating Case No. : 5:10-cv-14568
Dear Counsel: The Court issued the enclosed Order today in this case. Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Patricia J. Elder Senior Case Manager Direct Dial No. 513-564-7034

5:10-cv-1C4a5s6e8:-1J6C-O20-R03SW DDoocucm#e1n5t7: 17F-i2led 0F7il/e2d0:/1067/2P0/g2021o6f 5 PPageID: 12169 (2 of 5)

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, v. RICK SNYDER, et al.,

Case No. 10-14568 Hon. John Corbett O’Meara

Defendants. _________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Before the court is Plaintiffs’ motion for preliminary injunction. The court heard oral argument on July 28, 2016, and took the matter under advisement.
BACKGROUND FACTS Plaintiffs are serving mandatory life sentences for crimes they committed when they were under the age of eighteen. This case began in 2010 with Plaintiffs’ challenge to the constitutionality of M.C.L. § 791.234(6), which prohibits the Michigan Parole Board from considering for parole those sentenced to life in prison for first-degree murder. The court determined that § 791.234(6) was unconstitutional as applied to juveniles who had received mandatory life sentences and who were rendered ineligible for parole consideration. See Doc. 62 (January
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30, 2013 Order). The court found § 791.234(6) ran afoul of Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the Supreme Court held that mandatory lifewithout-parole sentences for juveniles violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Although Miller did not categorically ban life-without-parole sentences for juveniles, it declared that juveniles are entitled to individualized consideration of the mitigating and transient qualities of youth before the imposition of such a sentence. Id. at 2464-69.
After this court declared M.C.L. § 791.234(6) unconstitutional as applied to juveniles, it sought additional briefing from the parties regarding the appropriate remedy. On November 26, 2013, the court ordered immediate compliance with Miller and required Plaintiffs to be given parole consideration. Defendants appealed, and the Sixth Circuit stayed the court’s November 26, 2013 order pending appeal.
In 2014 – while this case was on appeal – the Michigan Legislature passed a statute in response to Miller. See M.C.L. §§ 769.25, 769.25a. Section 769.25a provides for resentencing – rather than parole consideration – in the event Miller was determined to apply retroactively (to the Plaintiffs):
If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v. Alabama . . . applies retroactively to all defendants who were under the age of 18 at the time of
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their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for [first-degree murder] shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section.
Id.
The statute allows prosecuting attorneys to file motions requesting that
juvenile offenders be given life-without-parole sentences. With respect to
Plaintiffs, the deadline for filing these motions is August 24, 2016.1 The defendant
is then entitled to a resentencing hearing, at which “the court shall consider the
factors listed in Miller v. Alabama . . . and may consider any other criteria relevant
to its decision, including the individual’s record while incarcerated.” M.C.L. §
769.25(6). At the hearing, “the court shall specify on the record the aggravating
and mitigating circumstances considered by the court and the court’s reasons
supporting the sentence imposed. The court may consider evidence presented at
trial together with any evidence presented at the sentencing.” M.C.L. § 769.25(7).
In a recent decision, the Michigan Court of Appeals emphasized its
1 The statute provides prosecutors with 180 days after the “date the supreme court’s decision [finding Miller retroactive] becomes final.” The Court found Miller to be retroactive in Montgomery v. Louisiana, 136 S.Ct. 71 (2016). The mandate in Montgomery was entered on February 26, 2016, triggering the beginning of the 180-day period.
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understanding of Miller and cautioned that “when sentencing a juvenile offender, a trial court must begin with the understanding that, in all but the rarest of circumstances, a life-without-parole sentence will be disproportionate for the juvenile offender at issue. Thus, a sentencing court must begin its analysis with the understanding that life-without-parole is, unequivocally, only appropriate in rare cases.” People v. Hyatt, __ N. W.2d __, 2016 WL 3941269 (Mich. App. July 21, 2016). The court further noted that appellate courts should “conduct a searching inquiry and view as inherently suspect any life-without-parole sentence imposed on a juvenile offender under MCL 769.25.” Id.
If the prosecutor decides not to seek a life-without-parole sentence, “the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years.” M.C.L. § 769.25a(4)(c).
In January 2016, the Supreme Court held in Montgomery v. Louisiana, 136 S.Ct. 718 (2016) that Miller was retroactive and that mandatory life-without-parole sentences that became final prior to Miller (like those imposed upon Plaintiffs) were void. Montgomery, 136 S.Ct. at 731, 733-34 (“There is no grandfather clause that permits States to enforce punishments the Constitution forbids.”).
After the enactment of M.C.L. §§ 769.25 and 769.25a, and the Montgomery
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decision, the Sixth Circuit decided the appeal of this court’s orders in this case. On
May 11, 2016, the Sixth Circuit found that the significant changes that had
occurred in the legal landscape during the pendency of the appeal required remand:
After careful consideration of the substantive issues at stake, the current procedural posture of the case, and the significant intervening legal changes described above, we vacate the district court’s challenged orders and remand with instructions to provide the parties leave to amend their pleadings and to supplement the record as needed, particularly with respect to the current statutory scheme governing plaintiffs’ sentences and eligibility for parole. We vacate the court’s prior orders to enable the court to address remedies in the context of the new legal landscape and because it is necessary in light of our instructions to allow the parties leave to amend the pleadings.
Hill v. Snyder, 821 F.3d. 763, 771 (6th Cir. 2016).
After remand, Plaintiffs amended their complaint to challenge the
constitutionality of M.C.L. §§ 769.25 and 25a under the Eighth Amendment and
the Ex Post Facto Clause. Plaintiffs also filed a motion for a temporary restraining
order/preliminary injunction, requesting that the court stop state prosecutors from
seeking life-without-parole sentences in their cases, consistent with the court’s
previous orders granting Plaintiffs parole eligibility. The court granted the TRO,
setting a hearing date for the preliminary injunction for July 28. Defendants
appealed and the Sixth Circuit reversed, noting that the TRO relied upon this
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court’s previous orders, which were all vacated by the Sixth Circuit on May 11, 2016.
Acknowledging the Sixth Circuit’s decision, Plaintiffs base their injunction motion on the new claims raised in their amended complaint, rather than the court’s previous orders. Plaintiffs seek a determination that the life-without-parole resentencing statute (§ 769.25a) would subject them to unconstitutional punishment. Plaintiffs urge the court to enjoin state prosecutors from seeking lifewithout-parole sentences pursuant to § 769.25a.
LAW AND ANALYSIS In determining whether to grant a preliminary injunction, the court considers four factors: (1) the moving party’s likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm in the absence of an injunction; (3) whether an injunction will cause substantial harm to others; and (4) the public interest. See Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014). Although these are factors to be balanced, rather than prerequisites, “[w]hen a party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.’” Liberty Coins, 748 F.3d at 689 (citation omitted). Pursuant to 42 U.S.C. § 1983, Plaintiffs challenge the constitutionality of
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M.C.L. § 769.25a because it continues to allow the possibility of life-withoutparole sentences for juveniles. In particular, Plaintiffs contend that § 769.25a is an ex post facto law and that it violates the Eighth Amendment.
The changes in the legal landscape present difficulties for Plaintiffs’ § 1983 claims. This case began as a challenge to the parole statute (M.C.L. § 791.234(6)) that denied Plaintiffs consideration for parole. This court found Plaintiffs’ claim to be cognizable under § 1983 because Plaintiffs sought only the opportunity to be considered for parole; they did not seek to challenge their sentences or invalidate the duration of their confinement. See Docket No. 31 (July 15, 2011 order) at 8-9; Docket No. 62 (January 30, 2013 order) at 4-6. See also Wilkinson v. Dotson, 544 U.S. 74, 78 (2005).
Plaintiffs’ amended complaint and request for injunctive relief is different. Plaintiffs now argue that M.C.L. § 769.25a – which governs sentencing, not parole – subjects them to “ongoing unconstitutional punishment.” Pls.’ Reply at 3. Plaintiffs argue that it is unconstitutional to subject them to the possibility of lifewithout-parole sentences and that state prosecutors are impermissibly seeking lifewithout-parole sentences as a routine matter.
The court pauses to note that Plaintiffs have not yet been resentenced; none has received a life-without-parole sentence pursuant to M.C.L. § 769.25a.
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Plaintiffs argue that the court should preclude state courts from considering such sentences. The Supreme Court has not, however, categorically banned lifewithout-parole sentences for all juveniles. Miller, 132 S.Ct. at 2469 (“Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”). The Court has also reserved for the States the determination of how to comply with Miller. See Montgomery, 136 S.Ct. at 735 (noting that “[w]hen a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems.”). Although the Michigan Legislature could have achieved compliance by providing Plaintiffs with the opportunity for parole hearings, it took the resentencing approach. This approach allows Plaintiffs the opportunity to present evidence of mitigating factors and their rehabilitation, which is consistent with what Plaintiffs have sought from the beginning of this case.
Plaintiffs argue that the possibility that they may be resentenced to life without parole is unconstitutional and that the court should preclude state prosecutors from seeking such a sentence. This claim oversteps the boundary – so
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carefully drawn in the original complaint – between cases Plaintiffs may bring pursuant to § 1983 and those they may not. The Supreme Court has made clear that a “prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson, 544 U.S. at 78 (citations omitted). See also Heck v. Humphrey, 512 U.S. 477 (1994). In Wilkinson, the Court explained that it “has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement – either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544 U.S. at 81.
Plaintiffs contend that they should not be subject to life-without-parole sentences, which are only appropriate for “the rare juvenile offender whose crime reflects irreparable corruption.” Miller, 132 S.Ct. at 2469. Such a challenge is appropriately brought in state court at their resentencing hearings, then upon appellate and habeas review, as necessary. Because Plaintiffs may not challenge a sentence of life without parole under § 1983, they are unlikely to succeed on the merits of their claim for injunctive relief.
It remains to be determined whether Plaintiffs’ amended complaint
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otherwise presents a claim upon which this court may grant relief. Plaintiffs have not, however, demonstrated that they are likely to succeed on the merits of the claims before the court in their preliminary injunction motion. Therefore, Plaintiffs have not sustained their burden of demonstrating that they are entitled to injunctive relief.
ORDER IT IS HEREBY ORDERED that Plaintiffs’ motion for preliminary injunction is DENIED.
s/John Corbett O’Meara United States District Judge Date: August 3, 2016 I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, August 3, 2016, using the ECF system. s/William Barkholz Case Manager
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al., Plaintiffs,
v. RICK SNYDER, et al.,
Defendants. __________________________/

Case No. 10-14568 Hon. John Corbett O’Meara

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Before the court is Defendants’ motion to dismiss Plaintiffs’ amended complaint, which has been fully briefed. The court heard oral argument on November 17, 2016, and took the matter under advisement. For the reasons explained below, Defendants’ motion is granted.
BACKGROUND FACTS Plaintiffs were sentenced to mandatory life sentences for crimes they committed when they were under the age of eighteen. This case began in 2010 with Plaintiffs’ challenge to the constitutionality of M.C.L. § 791.234(6), which prohibits the Michigan Parole Board from considering for parole those sentenced

to life in prison for first-degree murder. The court determined that § 791.234(6) was unconstitutional as applied to juveniles who had received mandatory life sentences and who were rendered ineligible for parole consideration. See Doc. 62 (January 30, 2013 Order). The court found § 791.234(6) ran afoul of Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the Supreme Court held that mandatory life-without-parole sentences for juveniles violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Although Miller did not categorically ban life-without-parole sentences for juveniles, it declared that juveniles are entitled to individualized consideration of the mitigating and transient qualities of youth before the imposition of such a sentence. Id. at 2464-69.
After this court declared M.C.L. § 791.234(6) unconstitutional as applied to juveniles, it sought additional briefing from the parties regarding the appropriate remedy. On November 26, 2013, the court ordered immediate compliance with Miller and required Plaintiffs to be given parole consideration. Defendants appealed, and the Sixth Circuit stayed the court’s November 26, 2013 order pending appeal.
In 2014 – while this case was on appeal – the Michigan Legislature passed a statute in response to Miller. See M.C.L. §§ 769.25, 769.25a. Section 769.25a provides for resentencing – rather than parole consideration – in the event Miller
-2-

was determined to apply retroactively (to the Plaintiffs):
If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v. Alabama . . . applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for [first-degree murder] shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section.
Id.
The statute allows prosecuting attorneys to file motions requesting that
juvenile offenders be given life-without-parole sentences. (With respect to
Plaintiffs, the deadline for filing these motions was August 24, 2016.)1 The
defendant is then entitled to a resentencing hearing, at which “the court shall
consider the factors listed in Miller v. Alabama . . . and may consider any other
criteria relevant to its decision, including the individual’s record while
incarcerated.” M.C.L. § 769.25(6). At the hearing, “the court shall specify on the
record the aggravating and mitigating circumstances considered by the court and
1 The statute provides prosecutors with 180 days after the “date the supreme court’s decision [finding Miller retroactive] becomes final.” The Court found Miller to be retroactive in Montgomery v. Louisiana, 136 S.Ct. 71 (2016). The mandate in Montgomery was entered on February 26, 2016, triggering the beginning of the 180-day period.
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the court’s reasons supporting the sentence imposed. The court may consider evidence presented at trial together with any evidence presented at the sentencing.” M.C.L. § 769.25(7).
In a recent decision, the Michigan Court of Appeals emphasized its understanding of Miller and cautioned that “when sentencing a juvenile offender, a trial court must begin with the understanding that, in all but the rarest of circumstances, a life-without-parole sentence will be disproportionate for the juvenile offender at issue. Thus, a sentencing court must begin its analysis with the understanding that life-without-parole is, unequivocally, only appropriate in rare cases.” People v. Hyatt, __ N. W.2d __, 2016 WL 3941269 (Mich. App. July 21, 2016). The court further noted that appellate courts should “conduct a searching inquiry and view as inherently suspect any life-without-parole sentence imposed on a juvenile offender under MCL 769.25.” Id.
If the prosecutor decides not to seek a life-without-parole sentence, “the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years.” M.C.L. § 769.25a(4)(c).
In January 2016, the Supreme Court held in Montgomery v. Louisiana, 136 S.Ct. 718 (2016) that Miller was retroactive and that mandatory life-without-parole
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sentences that became final prior to Miller (like those imposed upon Plaintiffs)
were void. Montgomery, 136 S.Ct. at 731, 733-34 (“There is no grandfather clause
that permits States to enforce punishments the Constitution forbids.”).
After the enactment of M.C.L. §§ 769.25 and 769.25a, and the Montgomery
decision, the Sixth Circuit decided the appeal of this court’s orders in this case. On
May 11, 2016, the Sixth Circuit found that the significant changes that had
occurred in the legal landscape during the pendency of the appeal required remand:
After careful consideration of the substantive issues at stake, the current procedural posture of the case, and the significant intervening legal changes described above, we vacate the district court’s challenged orders and remand with instructions to provide the parties leave to amend their pleadings and to supplement the record as needed, particularly with respect to the current statutory scheme governing plaintiffs’ sentences and eligibility for parole. We vacate the court’s prior orders to enable the court to address remedies in the context of the new legal landscape and because it is necessary in light of our instructions to allow the parties leave to amend the pleadings.
Hill v. Snyder, 821 F.3d. 763, 771 (6th Cir. 2016).
After remand, Plaintiffs amended their complaint to challenge the
constitutionality of M.C.L. §§ 769.25 and 25a under the Eighth Amendment,
among other claims. Plaintiffs also filed a motion for a temporary restraining
order/preliminary injunction, requesting that the court stop state prosecutors from
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seeking life-without-parole sentences in their cases, consistent with the court’s previous orders granting Plaintiffs parole eligibility. The court granted the TRO, setting a hearing date for the preliminary injunction for July 28, 2016. Defendants appealed and the Sixth Circuit reversed, noting that the TRO relied upon this court’s previous orders, which were all vacated by the Sixth Circuit on May 11, 2016.
Acknowledging the Sixth Circuit’s decision, Plaintiffs based their injunction motion on the new claims raised in their amended complaint, rather than the court’s previous orders. Plaintiffs sought a determination that the life-withoutparole resentencing statute (§ 769.25a) would subject them to unconstitutional punishment. Plaintiffs urged the court to enjoin state prosecutors from seeking life-without-parole sentences pursuant to § 769.25a.
This court denied Plaintiffs motion for preliminary injunction because it determined that Plaintiffs were unlikely to succeed on the merits of their claims. See Docket No. 158. The court found that Plaintiffs could not challenge the constitutionality of their sentences (which they have not yet received) because such a challenge would run afoul of Heck v. Humphrey, 512 U.S. 477 (1994). “The Supreme Court has made clear that a ‘prisoner in state custody cannot use a § 1983 action to challenge “the fact or duration of his confinement.” He must seek federal
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habeas corpus relief (or appropriate state relief) instead.’” Opinion and Order Denying Plaintiffs’ Motion for Preliminary Injunction at 9, Docket No. 158.
Defendants seek dismissal of Plaintiffs’ amended complaint, which alleges the following causes of action: Count I, challenging the constitutionality of M.C.L. 791.234(6) (parole statute) under the Eighth and Fourteenth Amendments; Count II, challenging the constitutionality of M.C.L. 750.316, 769.25, 769.25a, and 791.234 under the Eighth Amendment because this scheme subjects Plaintiffs to sentences of life imprisonment without parole; Count III (voluntarily dismissed); Count IV, challenging constitutionality of M.C.L. 750.316, 769.25, 769.25a because the maximum 60 year sentence is the equivalent of life in prison; Count V, challenging 769.25a under the Ex Post Facto Clause because it deprives Plaintiffs of good-time credits on time served; Count VI, challenging Defendants’ failure to provide Plaintiffs with access to programming, education, training, and rehabilitation opportunities under the Eighth and Fourteenth Amendments; and Count VII (voluntarily dismissed).
LAW AND ANALYSIS I. Count I
In Count I, Plaintiffs reassert their claim that the parole statute, M.C.L. 791.234(6), is unconstitutional “because it deprives Plaintiffs punished with a
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mandatory sentence of life imprisonment to a meaningful opportunity to obtain release based upon their demonstrated maturity and rehabilitation.” On January 30, 2013, this court found M.C.L. 791.234(6) to be unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (2012), which declared that mandatory life without parole sentencing schemes for juveniles violated the Eighth Amendment. Since that decision, the legal context has changed significantly: the Michigan Legislature has eliminated mandatory life without parole sentences for juveniles in compliance with Miller; the Supreme Court has determined that Miller is retroactive and that mandatory life-without-parole sentences that became final prior to Miller (like those imposed upon Plaintiffs) are void; Plaintiffs have amended their complaint to challenge the new sentencing scheme; and Plaintiffs’ criminal cases have been reopened and they now await resentencing pursuant to M.C.L. 769.25a.
Most significantly with respect to Count I, M.C.L. 791.234(6) no longer applies to Plaintiffs. The statute provides that individuals sentenced to life imprisonment for certain offenses (including first degree murder) are not eligible for parole. By operation of M.C.L. 769.25 and 769.25a, however, a juvenile’s eligibility for parole is not determined by M.C.L. 791.234(6), but the sentencing judge. Because M.C.L. 791.234(6) no longer applies to Plaintiffs, their challenge to it is moot. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990);
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McPherson v. Michigan High School Athletic Assn., 119 F.3d 453, 458 (6th Cir. 1997) (“The test for mootness is whether the relief sought would, if granted, make a difference in the legal interests of the parties.”). The court will dismiss Count I. II. Counts II and IV
In Counts II and IV, Plaintiffs challenge the constitutionality of the sentencing scheme set forth in M.C.L. 769.25 and 769.25a. In Count II, Plaintiffs contend that a life without parole sentence for juveniles categorically violates the Eighth Amendment. In Count IV, Plaintiffs contend that the maximum sentence provided in the statute – 60 years – is the equivalent of life in prison and violates the Eighth and Fourteenth Amendments. In other words, Plaintiffs challenge their impending sentences.
Plaintiffs’ challenge to the validity of their impending sentences is untenable in this procedural context. As this court has ruled, Plaintiffs’ challenge to the sentencing scheme “oversteps the boundary – so carefully drawn in the original complaint – between cases Plaintiffs may bring pursuant to § 1983 and those they may not. The Supreme Court has made clear that a “prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson, 544 U.S. at 78 (citations omitted).” Opinion and Order Denying
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Plaintiffs’ Motion for Preliminary Injunction at 8-9 (Docket No. 158). See also Heck v. Humphrey, 512 U.S. 477 (1994). Indeed, the cases Plaintiffs cite for the proposition that juvenile sentencing or parole schemes are unconstitutional are cases brought under direct, collateral, or habeas review, not 42 U.S.C. § 1983. See Miller, 132 S.Ct. 2455 (2012); Montgomery, 136 S.Ct. 718 (2016); LeBlanc v. Mathena, __ F.3d __, 2016 WL 6652438 (4th Cir. Nov. 10, 2016); Songster v. Beard, __ F. Supp. 3d __, 2016 WL 4379233 (E.D. Pa. Aug. 17, 2016); Atwell v. State, 197 So.3d 1040 (Fla. 2016).
In addition, given that Plaintiffs’ criminal cases have been reopened and that they are awaiting resentencing, this court must abstain from exercising jurisdiction over Plaintiffs’ claims under Younger v. Harris, 401 U.S. 37, 41 (1971). Pursuant to Younger, there is a “strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). “There are three requirements for proper invocation of Younger abstention: ‘(1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.’” Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006) (citation omitted).
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These requirements are met here: Plaintiffs’ state criminal proceedings have been reopened and they are awaiting resentencing; these proceedings clearly implicate the important state interest of enforcing its criminal laws; and Plaintiffs have an adequate opportunity to challenge the constitutionality of their sentences at their sentencing hearings and on appeal. Accordingly, this court must abstain from interfering with the pending state criminal proceedings. “So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain.” Middlesex Cty., 457 U.S. at 435. Plaintiffs have not made a showing of bad faith, harassment, or other extraordinary circumstance that would make abstention inappropriate.
Plaintiffs argue that Younger abstention should not apply because this case was pending long before Plaintiffs’ criminal cases were reopened. However, Plaintiffs’ challenge to the new sentencing scheme was first raised in their amended complaint on June 20, 2016; Plaintiffs’ criminal cases were reopened in an effort to apply that new sentencing scheme in August 2016. The Supreme Court has held that “where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of
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substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force.” Hicks v. Miranda, 422 U.S. 332, 349 (1975). At this stage, no proceedings on the merits have taken place with respect to Plaintiffs’ challenge to the new sentencing scheme; this is essentially a new case. Thus, Younger abstention is appropriate and the court will dismiss Counts II and IV. III. Count V
In Count V, Plaintiffs mount an Ex Post Facto challenge to M.C.L. 769.25a(6), which provides that defendants who are resentenced under the statute “shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” The Ex Post Facto Clause prohibits states from enacting a law that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” For a criminal law to be ex post facto, “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981). When these factors were met, the Supreme Court found the retroactive elimination of disciplinary credits violated the Ex Post Facto Clause. Weaver, 450 U.S. at 33.
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Here, there is a dispute regarding whether Plaintiffs were ever eligible for good time or other credits that would reduce their sentences. Defendants argue that they were never eligible because they were convicted of an excluded offense – first degree murder. Plaintiffs contend that they were eligible and now will be disadvantaged by the elimination of these credits. Assuming Plaintiffs were eligible for good time credits, such credits would have been no use to them when they were serving life sentences without possibility of parole. Accordingly, they could not be disadvantaged by the elimination of credits that were of no benefit to them under the previous sentencing scheme. Because Plaintiffs cannot show that they are disadvantaged by M.C.L. 769.25a(6), the court will dismiss Count V on the merits. IV. Count VI
In Count VI, Plaintiffs contend that the Eighth and Fourteenth Amendments require that they receive “a fair and meaningful opportunity for release, including a right to educational and other rehabilitative programming, necessary for them to demonstrate growth, maturity, and suitability for release.” Compl. at ¶ 224. Plaintiffs state that Defendants have refused to provide access to programming, education, training, and rehabilitation opportunities in violation of the Eighth and Fourteenth Amendments.
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As a general matter, the Michigan parole system does not create a liberty interest in parole. See Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc). Nor is there a constitutional right to programming or rehabilitation opportunities in prison. To the extent Plaintiffs’ claim is characterized as seeking “a fair and meaningful opportunity for release,” it implicates the constitutionality of their (impending) sentences, which is not cognizable in this court pursuant to Heck and Younger, as discussed above. The court will dismiss Count VI. V. Conclusion
The changes in the legal landscape that have occurred since the beginning of this case, although not cognizable here, should redound to Plaintiffs’ benefit. Plaintiffs will receive individualized sentencing hearings in which the mitigating factors of youth will be considered for the first time. The Michigan Court of Appeals has directed that sentencing courts “must undertake a searching inquiry into the particular juvenile, as well as the particular offense” and that they “are to do more than pay mere lip service to the demands of Miller.” People v. Hyatt, __ N.W.2d __, 2016 WL 3941269 (Mich. App. July 21, 2016). At their sentencing hearings and upon appellate review, Plaintiffs will have the opportunity to fully present their constitutional claims, if necessary.
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ORDER IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED, consistent with this opinion and order.

Date: February 7, 2017

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, February 7, 2017, using the ECF system.

s/William Barkholz Case Manager

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 Case: 18-1418 Document: 35-1 Filed: 08/14/2018 Page: 1

Deborah S. Hunt 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
Filed: August 14, 2018

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

Mr. Brandon J. Buskey Mr. Steven M. Watt ACLU, 125 Broad Street, 18th Floor New York, NY 10004
Ms. Kathryn M. Dalzell Mr. Bernard Eric Restuccia Office of the Attorney General of Michigan P.O. Box 30212, 7th Floor Lansing, MI 48909-0000
Mr. Daniel S. Korobkin American Civil Liberties Union of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Deborah A. LaBelle 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000
Re: Case No. 18-1418, Henry Hill, et al v. Rick Snyder, et al Originating Case No. : 2:10-cv-14568
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk
Cathryn Lovely Deputy Clerk

Case: 18-1418 Document: 35-1 Filed: 08/14/2018 Page: 2
cc: Mr. David J. Weaver Enclosures Mandate to issue.

Case: 18-1418 Document: 35-2 Filed: 08/14/2018 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0168p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

HENRY HILL; JEMAL TIPTON; DAMION TODD; BOBBY ┐

HINES; KEVIN BOYD; BOSIE SMITH; JENNIFER PRUITT; │

MATTHEW BENTLEY; KEITH MAXEY; GIOVANNI │

CASPER; JEAN CARLOS CINTRON; NICOLE DUPURE; │

DONTEZ TILLMAN, individually and on behalf of those │

similarly situated,

│

Plaintiffs-Appellees,

│
>

│

v.

│

│

│

RICK SNYDER, in his official capacity as Governor of │

the State of Michigan; HEIDI E. WASHINGTON, │

Director of the Michigan Department of Corrections; │

MICHAEL EAGEN, Chair, Michigan Parole Board; BILL │

SCHUETTE, Attorney General,

│

Defendants-Appellants. │

┘

No. 18-1418

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:10-cv-14568—Mark A. Goldsmith, District Judge.

Decided and Filed: August 14, 2018

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Kathryn M. Dalzell, B. Eric Restuccia, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellants. Deborah A. LaBelle, Ann Arbor, Michigan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Brandon J. Buskey, Steven M. Watt, AMERICAN CIVIL LIBERTIES FOUNDATION, New York, New York, for Appellees.

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_________________
OPINION _________________
STRANCH, Circuit Judge. For the second time in less than twelve months, we find ourselves confronted with Michigan’s statutory scheme for resentencing individuals who were convicted of first-degree murder and received mandatory sentences of life without parole for acts they committed as children. The present incarnation of this dispute, now approaching its eighth year, concerns a statutory provision that is collateral to Plaintiffs’ resentencing—the elimination of the good time and disciplinary credits that Plaintiffs earned while they served their nowunconstitutional mandatory life sentences. Plaintiffs contend that this elimination violates the Ex Post Facto Clause of the Constitution; Defendants say it does not. We now join the growing chorus of voices (both state and federal, including the district court in this case) that have unanimously deemed this statutory scheme unconstitutional. We AFFIRM the decision of the district court.
I. BACKGROUND
A. Case Overview
This being our third appellate review in this litigation, we conserve both ink and paper by incorporating the factual and procedural overviews set forth in our prior opinions. See Hill v. Snyder (Hill I), 821 F.3d 763, 765–70 (6th Cir. 2016); Hill v. Snyder (Hill II), 878 F.3d 193, 199–203 (6th Cir. 2017). In brief: Plaintiffs amended their complaint in 2016 to address the changed legal landscape following the Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016), and Michigan’s 2014 amendments to its juvenile sentencing scheme, Mich. Comp. Laws §§ 769.25, 769.25a. The Second Amended Complaint (SAC) included allegations that Michigan’s policies and procedures governing parole deny Plaintiffs a meaningful opportunity for release in violation of the Eighth and Fourteenth Amendments (Count IV); the deprivation of Plaintiffs’ good time and disciplinary credits in Section 769.25a(6) violates the Ex Post Facto Clause (Count V); and Defendants have failed to provide the Plaintiffs with access to programming, education, training,

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and rehabilitation opportunities in violation of the Eighth and Fourteenth Amendments (Count VI). The district court granted Defendants’ motion to dismiss the SAC. We reversed that decision with respect to Counts IV, V, and VI, see Hill II, 878 F.3d at 209–13, and remanded the case for further proceedings, id. at 215.
Since our last decision, the case has been assigned to a new district court judge and the parties have briefed cross motions for partial summary judgment and Plaintiffs’ motion for class certification. (Both parties sought summary judgment on Counts V and VI; Count IV was not addressed.) The district court granted Plaintiffs’ requests for summary judgment on Count V and for class certification, but denied the cross-motions without prejudice in all other respects. In awarding summary judgment on Count V, the district court ordered permanent injunctive relief that prohibited Defendants from enforcing or applying the statutory provision that effected the credit elimination, Mich. Comp. Laws § 769.265a(6). Defendants sought a stay from the district court and then from this court, both of which were denied. They now appeal the district court’s Count V summary judgment decision.
B. The Statutory Scheme
Our analysis necessarily begins with the development of Michigan’s statutory scheme for good time credits and disciplinary credits. As of 1978, prisoners could apply good time credits to both their minimum and their maximum terms. Lowe v. Dep’t of Corr., 521 N.W.2d 336, 337 (Mich. Ct. App. 1994) (setting forth the statutory evolution of good time and disciplinary credits). The Michigan legislature amended the law in 1978, and thereafter certain prisoners, including those convicted of first-degree murder, could apply good time credits to their maximum terms only. Id. In 1987, Michigan eliminated good time credits entirely for offenses committed on or after April 1 of that year. Id. at 338. The current good time credit provision, which includes mandatory application language, does not distinguish among crimes. See Mich. Comp. Laws § 800.33(2) (providing that “a prisoner who is serving a sentence for a crime committed before April 1, 1987, and who has not been found guilty of a major misconduct or had a violation of the laws of this state recorded against him or her shall receive a reduction from his or her sentence as follows . . . .” (emphasis added)).

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Michigan created disciplinary credits in 1982. Lowe, 521 N.W.2d at 337–38. At first, these credits applied to both the minimum and maximum sentences, including the sentences of individuals convicted of first-degree murder. Id. at 337. In 1998, Michigan eliminated disciplinary credits for individuals convicted of first-degree murder after December 15 of that year. See Mich. Comp. Laws §§ 800.33(14) and 800.34(5). The current disciplinary credit provision includes expansive and mandatory application language. See Mich. Comp. Laws § 800.33(3) (“[A]ll prisoners serving a sentence for a crime that was committed on or after April 1, 1987 are eligible to earn disciplinary and special disciplinary credits as provided in subsection (5). Disciplinary credits shall be earned, forfeited, and restored as provided in this section. Accumulated disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date.” (emphases added)).1 The statute specifically includes individuals convicted of first-degree murder. See § 800.33(5) (“[A]ll prisoners serving a sentence on December 30, 1982, or incarcerated after December 30, 1982, for the conviction of a crime enumerated in section 33b(a) to (cc) of MCL 791.233b, [which includes first-degree murder in section 33(b)(n),] are eligible to earn a disciplinary credit of 5 days per month for each month served after December 30, 1982.”).
The statute at issue in Count V was enacted in 2014 and covers individuals who were sentenced to mandatory life without parole for juvenile first-degree murder convictions. We previously described this provision as follows:
This provision applies to juveniles who received mandatory sentences of life without parole before Miller and who are now entitled to resentencing, including Plaintiffs. This provision incorporates portions of Section 769.25 and outlines the process by which prosecutors may seek and courts may consider renewed sentences of life without parole; the term-of-years sentences that apply in the absence of a prosecutorial motion seeking life without parole; and the elimination of good time and disciplinary credits. This provision does not require courts to consider the Miller factors when resentencing youth offenders to terms of years. See Mich. Comp. Laws § 769.25a(4)(c).
Hill II, 878 F.3d at 202. Section 769.25a(6) specifies that “[a] defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good
1Appellants’ briefing erroneously asserts that disciplinary credits no longer exist. They apparently misunderstand their own statutory regime, as this provision makes clear that disciplinary credits are extant.

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time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” Plaintiffs argue that this last subsection disadvantages them by retroactively removing the credits that they had earned while serving their previous sentences of life imprisonment.
C. State Court Proceedings
In this litigation, Plaintiffs bring a facial challenge to the constitutionality of Count V on a classwide basis, an approach we endorsed in Hill II. 878 F.3d at 215 (“Today’s decision leaves to Michigan courts the normal task of resentencing state prisoners under state law. Should any class members wish to bring individualized challenges to their new sentences, they may do so via direct appeal or habeas.”). In bringing challenges to their new sentences, several individuals have also homed in on the constitutional infirmities of Section 769.25a(6). After the district court granted summary judgment and while the parties briefed this appeal, the Michigan Court of Appeals considered the direct sentencing appeals of two such individuals. See People v. Wiley, -- N.W.2d--, 2018 WL 2089549 (Mich. Ct. App. May 4, 2018).2 The Wiley court adopted the district court’s Count V analysis in full and held Section 769.25(a)(6) unconstitutional. Notably, this did not affect the panel’s decision to affirm the defendants’ sentences. Id. at *16 (“We affirm defendants’ sentences, but declare [Mich. Comp. Laws §] 769.25a(6) to be unconstitutional.”). Defendants have sought to appeal this decision to the Michigan Supreme Court, and have requested expedited resolution. As of this writing, the Michigan Supreme Court has not acted on the Wiley appeal. See People v. Wiley, No. 158019 (Mich.).
II. ANALYSIS
A. Jurisdiction and Standard of Review
The district court entered final judgment in Plaintiffs’ favor on Count V, and this court has jurisdiction pursuant to 28 U.S.C. 1291. The district court’s decision both declined to abstain and awarded summary judgment to Plaintiffs. “This Court reviews abstention decisions de novo.” Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002). We also review
2The Wiley decision also encompasses another case, People v. Rucker, No. 338870 (Mich. Ct. App. May 4, 2018).

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de novo a district court’s decision to grant summary judgment. Schleicher v. Preferred Sols., Inc., 831 F.3d 746, 752 (6th Cir.), cert. denied, 137 S. Ct. 531 (2016). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Abstention
As a threshold matter, Defendants ask the court to determine that the district court should have abstained from considering Count V under either of two doctrines, Pullman abstention or Younger abstention. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941); Younger v. Harris, 401 U.S. 37 (1971). We address each doctrine in turn.
In Pullman, the Supreme Court “held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984). The equitable considerations of Pullman abstention are typically applied when an unsettled statelaw question is best decided by or already pending in state courts. See Harris Cty. Comm’rs Court v. Moore, 420 U.S. 77, 83–84 (1975). These days, in the face of novel questions of state law, many federal courts rely on state Supreme Court certification procedures, which avoid the “significant financial and time burdens” associated with Pullman abstention. Jones v. Coleman, 848 F.3d 744, 750 (6th Cir. 2017) (describing how questions of state law may be certified to state Supreme Courts to avoid the drawbacks of Pullman abstention). Defendants contend either Pullman abstention or certification would be appropriate in this case.
Defendants, however, have not identified an unsettled question of state law that would support Pullman abstention or certification to the Michigan Supreme Court. The thrust of Defendants’ Pullman argument seems to be that whether Plaintiffs earned good time credits while serving their life sentences is an unsettled question of Michigan law that must be answered, in the first instance, by Michigan courts. That argument fails for two reasons. First, the relevant Michigan statutes are not “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.” Jones, 848 F.3d at 751 (quoting City of Houston v. Hill, 482 U.S. 451, 468 (1987)). For the reasons discussed below,

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the relevant statutory provisions are unambiguous, and they support Plaintiffs’ position. Second, Michigan courts have already made clear that individuals serving sentences of life without parole who receive new sentences may not be deprived of the credits earned during their prior sentences. See, e.g., Moore v. Buchko, 154 N.W.2d 437 (Mich. 1967) (awarding good time credits to a prisoner whose life-without-parole sentence was vacated as unconstitutional and who then received a term-of-years sentence). The Michigan Court of Appeals has even addressed the very statutory provision before this court and, in adopting the reasoning of the district court, has demonstrated that Buchko’s holding endures and applies here. Wiley, 2018 WL 2089549, at *9– 14 (adopting Judge Goldsmith’s “persuasive” analysis that held Mich. Comp. Laws § 769.25a(6) unconstitutional). Accordingly, there is no unsettled state-law question that necessitates further delaying resolution of Count V.
Defendants also reprise their request for Younger abstention. In doing so, they attempt to construe our Hill II decision as rejecting Younger for only Counts II and IV, and not Count V. This is not so. In Hill II, we rejected Younger abstention whole cloth because the late stage of the litigation rendered the doctrine incongruous and inapplicable. See 878 F.3d at 207 (holding Younger inapplicable to “Plaintiffs’ claims,” without limitation). We refused to countenance further delay, holding that Younger abstention was inappropriate not only because the federal litigation predated the purportedly conflicting state proceedings, but primarily because we determined that over seven years into the case was too late to even reevaluate the exercise of federal jurisdiction:
[Defendants] conflate[] the question of whether to abstain with the threshold question of whether we should even consider abstention at this juncture. Defendants offer no authority, and we can find none, that would support the proposition that the filing of an amended complaint requires a federal court to reexamine whether to exercise its duly-authorized jurisdiction.
Id. at 205. We are once again unable to locate any authority that would support setting aside our jurisdiction at this stage of the case and abdicating of our “virtually unflagging obligation” to decide those cases properly before us. Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (citation omitted). If considering Younger abstention was inappropriate nearly a year ago in response to an amended complaint, it is even more so now.

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A march through the Younger analysis, moreover, would provide no reason to abstain. As the district court aptly recognized, Count V goes to the calculation of credits by the Michigan Department of Corrections (MDOC); it has no bearing on Plaintiffs’ resentencing. Accordingly, resolution of Count V will not interfere with any ongoing state-court proceedings. See Wiley, 2018 WL 2089549, at *16 (illustrating that the Count V resolution is collateral by both affirming the sentence and holding Mich. Comp. Laws § 769.25a(6) unconstitutional); see also Gerstein v. Pugh, 420 U.S. 103, 107 n.9 (1975) (noting that Younger does not bar equitable relief where the injunction is directed not at “state prosecutions as such” but rather at collateral proceedings that could not be raised in defense of the criminal prosecution). There is no cause for federal court abstention here.
C. Count V
Count V of the SAC alleges that Mich. Comp. Laws § 769.25a(6) violates the Ex Post Facto Clause by “subject[ing] Plaintiffs to a harsher punishment than the law in effect at the time of their offense and original sentencing.” Broadly speaking, “[a]n ex post facto law possesses two elements: (1) ‘it must apply to events occurring before its enactment,’ and (2) ‘it must disadvantage the offender affected by it.’” Dyer v. Bowlen, 465 F.3d 280, 285 (6th Cir. 2006) (quoting Lynce v. Mathis, 519 U.S. 433, 441 (1997)). The Supreme Court has identified the “controlling inquiry” to be “whether retroactive application of the change in [state] law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting California Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)). Whether “a change in law creates such a risk is ‘a matter of degree’; the test cannot be reduced to a ‘single formula.’” Peugh v. United States, 569 U.S. 530, 539 (2013) (quoting Morales, 514 U.S. at 509).
Hill II teaches that “the retroactive elimination of credits implicates the Ex Post Facto Clause.” 878 F.3d at 211 (discussing Weaver v. Graham, 450 U.S. 24 (1981)). We explained that in Weaver, the Supreme Court held that Florida violated the Ex Post Facto Clause when it retroactively applied a statute eliminating gain-time release credits, akin to good time credits, because the elimination “‘ma[de] more onerous the punishment for crimes committed before its enactment.’” Id. (alteration in original) (quoting Weaver, 450 U.S. at 35–36). The Supreme

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Court reaffirmed its position in Lynce v. Mathis, holding unconstitutional a Florida statute canceling provisional release credits. 519 U.S. 433, 445–46 (1997).
Here, the inquiry is whether the elimination of credits in Section 769.25a(6) creates a sufficient risk of increasing the punishment attached to Plaintiffs’ convictions. The statute provides:
A defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.
Mich. Comp. Laws § 769.25a(6) (emphasis added). The text of the statute says it all—it eliminates credits “that reduce the defendant’s minimum or maximum sentence.” By its terms, this provision makes a defendant’s sentence more onerous, and thus violates the Ex Post Facto Clause.
As we pointed out in Hill II and as the district court noted, Jennifer Pruitt’s situation illustrates the precise harm exacted by this provision: “Under Section 769.25a(6), [Pruitt] will not be eligible for review by the Michigan Parole Board for at least four years. If her disciplinary credits were to be restored, she would be eligible for review now.” 878 F.3d at 213. This kind of delay in eligibility creates a risk of increased punishment sufficient to violate the Ex Post Facto Clause. Michigan caselaw supports this conclusion. See Buchko, 154 N.W.2d at 439 (“An alternative contention made by plaintiff is that the statute, even in its original form, requires a sentencing judge to allow credit for past time served under an erroneous conviction, and we agree.”); Wayne Cty. Prosecuting Attorney v. Mich. Dep’t of Corr., No. 186106, 1997 WL 33345050, at *4 (Mich. Ct. App. June 17, 1997) (“Moreover, to deny prisoners in Holbrook’s position the right to have good-time and special good-time credits applied to their maximum terms would run afoul of the state and federal constitutional prohibitions against the enactment of ex post facto laws. A law enacted after the date of a prisoner’s sentence that attempts to reduce the amount of credit given for good behavior, and in effect increases the sentence, is unconstitutional.” (citations omitted)).

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Despite the relative simplicity of this issue, Defendants advance a number of arguments in support of reversing the district court. None persuade. First, Defendants assert that Plaintiffs’ “accrual of credits [wa]s meaningless, without value, and pointless” while they had life-withoutparole sentences. This position at least acknowledges that Plaintiffs earned credits during their life sentences, a fact that is evident from the mandatory language of Michigan’s good time and disciplinary credit statutes. See Mich. Comp. Laws §§ 800.33(3), (5), (14). Indeed, the elimination provision in Section 769.25a would itself be meaningless and pointless if Plaintiffs had not earned credits during their life sentences. Defendants’ argument otherwise misapprehends the relevant inquiry in an ex post facto claim. The issue is not how to quantify the value of the credits earned during Plaintiffs’ previous sentences; our inquiry is whether the retroactive elimination of credits disadvantages Plaintiffs now. On this point, it is worth noting that disciplinary credits also carry another kind of value—they “encourage good behavior by prisoners” and “thus generally . . . improve the conditions in the prisons and reduce custodial costs to the taxpayers.” Buchko, 154 N.W.2d at 447. Good time credits, too, provide a unique benefit—hope. Id. (“[S]ince hope and post conviction pleas spring eternal within the incarcerated human breast, it cannot be said the good time credit law is not at least some encouragement to [those imprisoned for life].”).
Second, Defendants say that because Plaintiffs have switched from certain life in prison to a term-of-years sentence, they cannot be worse off than they were before. This dismissive conclusion loses sight of important constitutional maxims. Or, to use Defendants’ jargon, this before-versus-after comparison uses the wrong “baseline.” The correct baseline is what Plaintiffs’ punishments would look like if Section 769.25a (identified in Count V) had not retroactively removed the credits they earned while serving unconstitutional sentences. The answer is clear: better. With the credits, Plaintiffs would be eligible for release at an earlier time. Without them, Plaintiffs are likely to languish in prison for additional years. The relief achieved by removal of an unconstitutional sentence cannot sanitize an embedded Ex Post Facto Clause violation.
Third, Defendants assert that reinstating the credits will undermine Michigan’s goal of uniformity. Because the “credit regime changed multiple times through” the period in which

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Plaintiffs were convicted, Defendants say, “the number of credits a Plaintiff or class member would be entitled to . . . depends on the year of his crime.” That is nothing new. The variation Defendants complain of was born from statutory changes that Defendants effected; it would be perverse to allow them to invoke these amendments as a shield. Moreover, variation exists regardless of the nature of the offense. Someone convicted on March 31, 1987, will have access to good time credits while someone convicted of the same offense the very next day will not. In such situations, indeed for all individuals, MDOC will—as it always has—look to the date of conviction and reverse engineer the applicable credits. The potential for variation exists for all Michigan prisoners, and Defendants have not explained why uniformity among this particular class of offenders is necessary, or even important.
Nor is there any reason to think that the lack of uniformity creates any problems with administrability. Richard Stapleton, former Administrator of the MDOC Office of Legal Affairs, explained in his affidavit that “[e]ligibility as to whether good time or disciplinary credits are applied to a prisoner’s sentence ha[s] always been determined by the MDOC based on the date of the prisoner’s offense.” Stapleton stated that MDOC can “effectively recalculate prisoner release dates upon resentencing using the centralized database in a very short period of time for each case.” Defendants’ ad hoc uniformity complaints are therefore without merit. And even if uniformity were an issue, it would not take priority over Plaintiffs’ constitutional rights.
Finally, Defendants highlight that no term-of-years sentences existed for first-degree murder crimes when Plaintiffs were convicted. This point goes back to Defendants’ argument that “the credits had no value as long as the offenders were serving a sentence that did not have a fixed duration.” But Plaintiffs accrued credits under the laws in place when they were convicted, and, as discussed above, what matters is that the elimination of the credits disadvantages them now. Cf. United States v. Kruger, 838 F.3d 786, 791 (6th Cir. 2016) (explaining that ex post facto violations have arisen when plaintiffs seek credits that would have been available to them at the time of conviction).
If we focus on the proper question—whether Plaintiffs are disadvantaged by Section 769.25a(6)’s elimination of credits—the answer is apparent. Plaintiffs have suffered an Ex Post Facto Clause violation because the elimination of credits delays their eligibility for release.

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Defendants’ arguments to the contrary do not disturb this straightforward conclusion. The district court’s decision to grant summary judgment and permanent injunctive relief to Plaintiffs on Count V was proper.
III. CONCLUSION
We, like the Michigan Court of Appeals, find the analysis of the district court persuasive and correct. Defendants have not identified a reason for federal court abstention, and their arguments for reversing the award of summary judgment lack merit. Both parties have achieved victories and suffered defeats over the nearly eight years of this litigation. Today’s decision, the third to hold that Section 769.25a(6) violates the Ex Post Facto Clause of the United States Constitution, should be the last skirmish in this long dispute. It is well past time to put to rest litigation tactics and further delay. It is now time to devote the energies of the parties to rectifying the constitutional harm suffered by Plaintiffs. The judgment of the district court is AFFIRMED and the case is remanded for expeditious relief.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 18-1418

HENRY HILL; JEMAL TIPTON; DAMION TODD; BOBBY HINES; KEVIN BOYD; BOSIE SMITH; JENNIFER PRUITT; MATTHEW BENTLEY; KEITH MAXEY; GIOVANNI CASPER; JEAN CARLOS CINTRON; NICOLE DUPURE; DONTEZ TILLMAN, individually and on behalf of those similarly situated,
Plaintiffs - Appellees,
v.
RICK SNYDER, in his official capacity as Governor of the State of Michigan; HEIDI E. WASHINGTON, Director of the Michigan Department of Corrections; MICHAEL EAGEN, Chair, Michigan Parole Board; BILL SCHUETTE, Attorney General,
Defendants - Appellants.

FILED
Aug 14, 2018
DEBORAH S. HUNT, Clerk

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the district court and was submitted on the briefs without oral argument.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED, and the case is REMANDED for expeditious relief.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
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Deborah S. Hunt 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 20, 2017
Mr. Brandon J. Buskey Mr. Steven M. Watt ACLU, 125 Broad Street, 18th Floor New York, NY 10004
Ms. Kathryn M. Dalzell Mr. Joseph T. Froehlich Ms. Margaret A Nelson Mr. Bernard Eric Restuccia Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Mr. Daniel S. Korobkin Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Deborah A. LaBelle 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000
Re: Case No. 17-1252, Henry Hill, et al v. Rick Snyder, et al Originating Case No. : 5:10-cv-14568
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

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cc: Mr. David J. Weaver Enclosures Mandate to issue.

Yours very truly, Deborah S. Hunt, Clerk
Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0288p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

HENRY HILL, et al.,
v. RICK SNYDER, et al.,

┐ Plaintiffs-Appellants, │
││>
│ │ │ Defendants-Appellees. │ ┘

No. 17-1252

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:10-cv-14568—John Corbett O’Meara, District Judge.
Argued: September 13, 2017
Decided and Filed: December 20, 2017
Before: MERRITT, STRANCH, and DONALD, Circuit Judges

_________________

COUNSEL
ARGUED: Deborah LaBelle, Ann Arbor, Michigan, for Appellants. B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Deborah LaBelle, Ann Arbor, Michigan, Brandon J. Buskey, Steven M. Watt, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Appellants. B. Eric Restuccia, Margaret A. Nelson, Joseph Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

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_________________
OPINION _________________
JANE B. STRANCH, Circuit Judge. Since 2010, Plaintiffs have sought federal court review of the punishments Michigan may constitutionally impose on individuals convicted of first-degree murder for acts they committed as children. When we last considered this case, the legal landscape had changed in a few fundamental ways: The Supreme Court had twice ruled that the unique characteristics of youth must factor into sentencing decisions for juvenile offenders facing life imprisonment, and the Michigan Legislature had amended its statutory scheme to implement these rulings. Recognizing the import of these developments, we remanded the case to the district court with express instructions that the parties be authorized to amend the pleadings. The Plaintiffs heeded our opinion and filed a Second Amended Complaint (SAC) in June 2016. Now, as before, they assert that Michigan’s sentencing scheme and parole system deny youth offenders a meaningful opportunity for release. The district court determined that jurisprudential concerns barred Plaintiffs’ claims and dismissed the SAC in its entirety.
Although we agree that certain claims in the SAC may not proceed, we do not find that the concerns articulated by the district court require dismissal of the entire action. Accordingly, for the reasons that follow, we AFFIRM the district court’s dismissal of Counts I and II, REVERSE the district court’s dismissal of Counts IV, V, and VI, and REMAND for further proceedings consistent with this decision.
I. BACKGROUND
We provided a thorough recitation of the factual and procedural history to date in the previous opinion in this case. See Hill v. Snyder (Hill I), 821 F.3d 763 (6th Cir. 2016). The legal issues now presented call for some repetition, and there have been several developments in the intervening time period.

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A. Case Overview
Plaintiffs are individuals who received mandatory sentences of life without parole for crimes they committed while below the age of eighteen. They originally filed this case in November 2010, asserting claims under 42 U.S.C. § 1983. Then, as now, Plaintiffs asserted that Michigan’s sentencing scheme violated their constitutional rights by depriving them of a meaningful opportunity for release. Plaintiffs specifically challenged the then-applicable statutory provisions that excluded youth offenders who were convicted of first-degree murder from the jurisdiction of the Michigan Parole Board. See Mich. Comp. Laws § 750.316 (life imprisonment without parole for first-degree murder); Mich. Comp. Laws § 791.234(6)(a) (ineligibility for parole for people convicted of first-degree murder under Section 750.316). The Plaintiffs filed an amended complaint to add four more Named Plaintiffs in February 2012, four months before the Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012). Miller held that the Eighth Amendment prohibits mandatory sentences of life without parole for those under the age of eighteen at the time of their crimes. See 567 U.S. at 489. Following Miller, the district court granted partial summary judgment to the Plaintiffs, holding that Michigan’s sentencing scheme violated the Eighth Amendment’s prohibition of cruel and unusual punishment by mandating life sentences without parole for juveniles convicted of first-degree murder. The district court also issued an injunction directing the Defendants to consider all juvenile offenders who were sentenced to mandatory life in prison immediately eligible for parole.
Defendants appealed the injunction to this court. While the appeal was pending, Michigan amended its sentencing scheme to prospectively address the effect of Miller. The Legislature enacted a new statutory provision, which covered both juveniles convicted of firstdegree homicide after Miller and those juveniles whose cases were still pending or eligible for direct appellate review at the time of the statute’s enactment. See Mich. Comp. Laws § 769.25. This new provision allows prosecutors to seek life-without-parole sentences for juveniles convicted of first-degree homicide crimes by filing a motion specifying the grounds for imposing that punishment. Id. § 769.25(3). It also requires courts to conduct a hearing on such motions, where the judge “shall consider the factors listed in Miller v. Alabama, . . . and may consider any

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other criteria relevant to its decision, including the individual’s record while incarcerated.” Id. § 769.25(6) (citation omitted). If the court does not sentence the individual to life without parole, the court must sentence the individual to a minimum term of 25 to 40 years and a maximum term of 60 years. Id. § 769.25(9).
Michigan simultaneously enacted Section 769.25a, which anticipated a United States or Michigan Supreme Court decision making Miller retroactively applicable. Mich. Comp. Laws § 769.25a(2). This provision applies to juveniles who were convicted of first-degree homicide offenses before Miller and who received mandatory sentences of life without parole. Id. Section 769.25a incorporates portions of Section 769.25 and relies on the same process for imposing renewed life-without-parole or term-of-years sentences. In January 2016, the Supreme Court held that Miller established a new substantive rule of constitutional law that applies retroactively, Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016), and thereby triggered implementation of Section 769.25a. This panel subsequently issued its decision in Defendants’ appeal of the district court’s injunction, vacating the order and remanding the case with instructions to grant the parties leave to amend the pleadings and supplement the record in light of the changed legal landscape from Miller, Montgomery, and Michigan’s new sentencing statutes. Hill I, 821 F.3d at 771.
B. The Federal Proceedings Since Hill I
Approximately six weeks after our decision in Hill I, Plaintiffs filed the SAC, which is the subject of this appeal. The Plaintiffs name Governor Rick Snyder; Heidi E. Washington, Director of the Michigan Department of Corrections; Michael Eagen, Chair of the Michigan Parole Board; and Bill Schuette, Michigan Attorney General, as defendants. The SAC alleges that: Section 791.234(6) continues to be enforced against Plaintiffs in violation of the Eighth and Fourteenth Amendments (Count I); Michigan’s amended sentencing scheme violates the Eighth Amendment by subjecting juvenile offenders to sentences of life without parole (Count II); Michigan’s policies and procedures governing parole deny Plaintiffs a meaningful opportunity for release in violation of the Eighth and Fourteenth Amendments (Count IV); the deprivation of Plaintiffs’ good time and disciplinary credits in Section 769.25a(6) violates the Ex Post Facto Clause (Count V); and Defendants have failed to provide the Plaintiffs with access to

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programming, education, training, and rehabilitation opportunities in violation of the Eighth and Fourteenth Amendments (Count VI).1
Soon after filing the SAC, Plaintiffs sought a temporary restraining order (TRO) and a preliminary injunction to prevent prosecutors from filing motions seeking renewed sentences of life without parole under Section 769.25a(4)(b). The district court granted Plaintiffs’ motion for a TRO, but this court stayed the TRO pending the district court’s decision on the preliminary injunction. The district court subsequently denied Plaintiffs’ request for a preliminary injunction, finding that they were unlikely to succeed on the merits of their claims.
Following briefing and oral argument, the district court granted Defendants’ motion to dismiss the SAC. The district court determined that Count I was moot because the Michigan mandatory life-without-parole statute, Section 791.234(6), no longer applied to the Plaintiffs. The district court dismissed Counts II, IV, and VI as not cognizable under 42 U.S.C. § 1983 pursuant to the rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994). In the alternative, the district court held that the abstention doctrine outlined in Younger v. Harris, 401 U.S. 37 (1971), rendered federal court consideration of those counts inappropriate. Finally, the district court dismissed Count V for failure to state a claim after finding that the Plaintiffs could not show that they were disadvantaged by the elimination of good time and deprivation credits as needed to establish an Ex Post Facto Clause violation. Plaintiffs brought this timely appeal.
C. Michigan’s Current Statutory Scheme
Michigan relies on a web of sentencing and parole statutes, many of which incorporate each other by reference. A number of these provisions are at issue in this appeal, and we pause to identify those implicated by Plaintiffs’ claims in the SAC:
 Section 750.316: This provision identifies first-degree murder crimes and states that such crimes are punishable by life imprisonment without eligibility for parole. As of 2014, this section specifically excepts individuals covered by Sections 769.25 and 769.25a, which cover youth offenders.
 Section 791.234(6): This provision states that prisoners sentenced to life imprisonment, including individuals sentenced under Section 750.316, are not eligible
1Plaintiffs voluntarily dismissed Counts III and VII.

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for parole. Because Section 750.316 now excepts youth offenders, Section 791.234(6) does not apply to Plaintiffs.
 Section 769.25: This provision applies to juveniles convicted of first-degree murder crimes after Miller. It outlines the process by which prosecutors may seek and courts may consider Miller-compliant sentences of life without parole for youth offenders; the term-of-years sentences that apply in the absence of a prosecutorial motion seeking life without parole; and the elimination of good time and disciplinary credits. This provision does not require courts to consider the Miller factors when sentencing youth offenders to terms of years. See Mich. Comp. Laws § 769.25(9).
 Section 769.25a: This provision applies to juveniles who received mandatory sentences of life without parole before Miller and who are now entitled to resentencing, including Plaintiffs. This provision incorporates portions of Section 769.25 and outlines the process by which prosecutors may seek and courts may consider renewed sentences of life without parole; the term-of-years sentences that apply in the absence of a prosecutorial motion seeking life without parole; and the elimination of good time and disciplinary credits. This provision does not require courts to consider the Miller factors when resentencing youth offenders to terms of years. See Mich. Comp. Laws § 769.25a(4)(c).
 Sections 791.231 through 791.246: These provisions govern parole eligibility and consideration. Among other things, they enumerate factors that guide the Michigan Parole Board’s parole decisions, see Mich. Comp. Laws § 791.233e, and endow the Board with discretion to deny parole to those who are eligible, see id. § 791.234(11). These provisions do not require the Board to consider the Miller factors when considering parole for youth offenders.
In short, Michigan’s amended sentencing scheme relies on Sections 769.25 and 769.25a to
sentence and resentence youth offenders convicted of first-degree murder crimes. Youth
offenders are now outside the ambit of Section 750.316 and Section 791.234(6), at least insofar
as those provisions exclude them from parole eligibility. Those youth offenders who are or will
be eligible for parole are subject to the same parole consideration processes as adult offenders.
D. Resentencing Post-Montgomery
At present, class members fall into one of two broad categories: They either face
prosecutorial motions for renewed sentences of life without parole, or they have been
resentenced to a term of years.
The Supreme Court emphasized that the sentence of life without parole should be
imposed on youth offenders in only the “rarest” of circumstances. Montgomery, 136 S. Ct. at

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734; see also Miller, 567 U.S. at 479 (“[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”). Michigan prosecutors apparently believe that seventy percent of the Plaintiffs present rare and uncommon cases of “irreparable corruption.” Miller, 567 U.S. at 479–80 (citations removed). Approximately 250 class members face prosecutorial motions requesting that they again receive sentences of life without parole. These individuals will eventually be resentenced under Sections 769.25 and 769.25a, but two cases pending before the Michigan Supreme Court have delayed their Miller hearings. See People v. Skinner, 889 N.W.2d 487 (Mich. 2017) (mem.); People v. Hyatt, 889 N.W.2d 487 (Mich. 2017) (mem.). Skinner and Hyatt address the amended statutory provisions that authorize judges—not juries—to make factual findings regarding the Miller factors when sentencing juvenile offenders to life without parole. See Mich. Comp. Laws §§ 769.25(6), (7), 769.25a(4)(b). Although that issue has not been raised in this case, Skinner and Hyatt have nevertheless delayed the Michigan sentencing and appeals processes for youth offenders convicted of first-degree murder. See People v. Boyd, No. 1995-137251-FC (Mich. Cir. Ct. Aug. 24, 2016) (ordering that the resentencing of one of the Named Plaintiffs in this case be stayed pending Skinner and Hyatt); see also, e.g., People v. Zuniga, 893 N.W.2d 633 (Mich. 2017) (mem.) (holding a youth offender’s sentencing appeal in abeyance pending decisions in Skinner and Hyatt). Accordingly, this group of roughly 250 class members must await resolution of Skinner and Hyatt before they may receive a new Miller-compliant sentence under Sections 769.25 and 769.25a.
The remainder of the class did not face motions for renewed sentences of life without parole. At argument, counsel for Defendants represented that approximately 100 class members had already been resentenced to terms of years, and indicated that the rest of this group would soon receive new sentences. Some of these individuals are already eligible for parole.
II. DISCUSSION
A. Standard of Review
We apply de novo review to a district court’s grant of a motion to dismiss, Linkletter v. W. & S. Fin. Grp., Inc., 851 F.3d 632, 637 (6th Cir. 2017), including where dismissal is based on

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jurisprudential grounds, see Nimer v. Litchfield Twp. Bd. of Trs., 707 F.3d 699, 700 (6th Cir. 2013) (de novo review of abstention under Younger); Ammex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cir. 2003) (de novo review of dismissal based on mootness); Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998) (de novo review of dismissal based on the Heck doctrine). We construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and examine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
B. Mootness
Count I of the SAC asserts that Defendants continue to unconstitutionally enforce Section 791.234(6) against Plaintiffs. A subsection of the parole eligibility statute, Section 791.234(6), excludes individuals sentenced to life in prison from the jurisdiction of the Michigan Parole Board. It accomplishes this by incorporating by reference individuals who are sentenced to life in prison for first-degree murder under Section 750.316. As noted above, Section 750.316 now expressly excepts juvenile offenders convicted of first-degree murder, who instead receive sentences pursuant to Sections 769.25 and 769.25a. Plaintiffs argue in Count I that class members who have not yet been resentenced remain confined subject to Section 791.234(6), and therefore are still not eligible for parole consideration.
The district court dismissed Count I as moot because the challenged provision “no longer applies to Plaintiffs.” Mootness is one of Article III’s justiciability requirements. “The jurisdiction of federal courts extends only to actual, ongoing cases or controversies. A case may become moot if, as a result of events that occur during pendency of the litigation, the issues presented are no longer ‘live’ or parties lack a legally cognizable interest in the outcome.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 581 (6th Cir. 2012) (citations omitted). Among the events that may moot a claim is the “[l]egislative repeal or amendment of a challenged statute,” which “usually eliminates this requisite case-or-controversy.” Green Party of Tenn. v. Hargett, 700 F.3d 816, 822 (6th Cir. 2012) (quoting Ky. Right to Life v. Terry, 108 F.3d 637, 644 (6th Cir. 1997)).

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Legislative action ordinarily moots a case midstream, when a challenged provision is repealed or amended during the pendency of the litigation. In such circumstances, courts must determine whether a statute has been “sufficiently altered so as to present a substantially different controversy.” Id. at 823 (citation omitted). So it is here: Count I challenges a statutory provision that ceased to apply to Plaintiffs six months before they filed the SAC. When the Supreme Court released its decision in Montgomery, it triggered Section 769.25a, which altered the web of Michigan sentencing statutes in a material way. Sections 769.25 and 769.25a now exclude Plaintiffs from Section 750.316, which in turn excludes them from the purview of the provision named in Count I, Section 791.234(6). Plaintiffs provide no specific information regarding the continued enforcement or application they allege. They do not say who is enforcing this section or by what means. Instead, the gravamen of Count I seems to be that many class members have yet to receive new sentences. Plaintiffs contend that, absent resentencing, their confinement traces back to the prior unconstitutional sentencing scheme, which included Section 791.234(6).
We are sensitive to Plaintiffs’ concerns about the delay in resentencing. Approximately 250 class members remain in limbo. See supra Part I.D. These individuals have been eligible for resentencing since January 2016, when the Supreme Court decided Montgomery, but the machinery of justice has come to a halt due to external circumstances, namely, the Michigan Supreme Court’s pending decisions in Skinner and Hyatt. Id. The delay in resentencing endured here certainly gives us pause. But resentencing pursuant to Sections 769.25 and 769.25a, although slow, is inevitable. Michigan has already resentenced nearly all of the class members not facing a prosecutorial motion for a renewed sentence of life without parole. Defendants’ implementation of the amended sentencing scheme with respect to those class members further undermines Plaintiffs’ assertions that Section 791.234(6) is still being enforced or applied to youth offenders. Because Section 791.234(6) no longer operates against the class, we agree with the district court that Count I is moot.
In affirming the district court’s dismissal of Count I as moot, we do not mean to say that an individual stuck in carceral limbo pending resentencing may never challenge his continued confinement—an unwarranted or impermissible delay in resentencing sounds in procedural due

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process. We only reaffirm the well-established legal principle that a claim premised on a statute that no longer applies to the challenging party does not satisfy Article III’s case-or-controversy requirement.2
C. Younger Abstention
The district court found that federal court abstention was appropriate under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), and dismissed Counts II, IV, and VI on that basis. The Younger doctrine is a judicial creation born from the principles of equity, comity, and federalism. Id. at 44. It permits federal courts to withhold authorized jurisdiction in certain circumstances to avoid undue interference with state court proceedings. Id. at 43–44. The Supreme Court has “carefully defined, however, the areas in which such abstention is permissible, and it remains the exception, not the rule.” New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans (NOPSI), 491 U.S. 350, 359 (1989) (citations omitted). Federal courts are to treat Younger as a limited carve-out to federal courts’ “virtually unflagging obligation” to exercise their jurisdiction. Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (citation omitted). The district court engaged in a Younger abstention analysis without first considering a critical and dispositive question: Does the filing of the SAC, seven years into the litigation, require the federal court system to reevaluate whether to exercise its jurisdiction? We think not.
A concern with the initiation of proceedings inheres in the Younger doctrine. Courts look to the moment the federal lawsuit was filed to determine whether it should be allowed out of the starting gate. See Fed. Exp. Corp. v. Tenn. Pub. Serv. Comm’n, 925 F.2d 962, 969 (6th Cir. 1986); see also James v. Hampton, 513 F. App’x 471, 474 (6th Cir. 2013). For this reason, Younger abstention issues tend to arise at or near the outset of federal proceedings. For example, in Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982), a seminal abstention case, the district court dismissed the federal complaint based on Younger less than four months after it was originally filed. See Brief for Petitioner at *7–8, 457 U.S. 423 (1982) (No. 81-460), 1981 WL 389660. Similarly, in Hicks v. Miranda, the abstention issue was
2Article III is also implicated by Defendants’ arguments regarding ripeness, which are addressed in Part II.F, infra.

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resolved by the federal district court less than six months after the plaintiffs completed service of the complaint. 422 U.S. 332, 338–40 (1975). In Zalman v. Armstrong, one of this court’s primary cases on abstention, the district court resolved the entire case, including Younger issues, in under seventy-five days. 802 F.2d 199 (1986). This focus on initiation persists even if a factual change would alter the Younger analysis. For example, the Zalman petitioner faced a state prosecution at the time he filed his federal complaint, but the prosecution had been dismissed by the time this court heard his appeal. 802 F.2d at 203. The Sixth Circuit acknowledged this development but still felt it necessary to order the district court to abstain based on Younger. Id. These cases confirm that Younger is inextricably bound up with beginnings. We are far from the beginning of this case, the initiation of which is barely discernible in our rearview mirror.
Defendants nevertheless insist that the SAC constituted a new case and that Younger is appropriate because no proceedings on the merits of the SAC have occurred. This argument conflates the question of whether to abstain with the threshold question of whether we should even consider abstention at this juncture. Defendants offer no authority, and we can find none, that would support the proposition that the filing of an amended complaint requires a federal court to reexamine whether to exercise its duly-authorized jurisdiction. Adopting this position would muddle what is now a practical and common-sense doctrine. While litigants presumably know if they face state court prosecutions at the time they file related federal complaints, they cannot predict future prosecutions. Yet Defendants’ approach would allow subsequent unforeseen prosecutions to cut the legs out from under long-running federal litigation. And if courts were to reconsider exercising their jurisdiction at every amendment, plaintiffs would risk sacrificing federal claims for fear of a late-stage Younger analysis. Indeed, the potential for Younger abstention would loom large over plaintiffs seeking to refine their claims and streamline litigation.
Defendants also do not explain when an amended complaint rises to the level of a “new case.” That very concept is at odds with the idea of amending pleadings, a practice deliberately built in to our civil justice system. Federal Rules of Civil Procedure 15 and 16 govern amendments, and they ensure that new allegations relate back to the original pleading. Here,

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Plaintiffs’ SAC—filed at our suggestion—incorporated the same thread that has tied Plaintiffs’ claims together from the first: It argues that Michigan’s sentencing and parole statutes deny juvenile offenders convicted of first-degree murder a meaningful opportunity for release. This coherent and consistent theme has animated every iteration of Plaintiffs’ complaint, and it illustrates why we must reject the notion that amending a complaint somehow constitutes a new case.
Treating an amended complaint as a new case also erodes the federalism principle underlying the Younger doctrine. Federalism is not a one-way street; it reflects a “sensitivity to the legitimate interests of both State and National Governments.” Younger, 401 U.S. at 44 (emphasis added). The interests of the federal courts matter, too, and where a federal action has “proceeded well beyond the embryonic stage, . . . considerations of economy, equity, and federalism counsel against Younger abstention.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (citation omitted). Later-filed state court proceedings do not require federal courts to wade into a Younger analysis when they and the parties have already expended significant resources to resolve the federal claims. Both this court and the district court have invested significant time and energy on this case. So too have the parties. They have actively litigated this case for seven years, including engaging in discovery, a costly and burdensome process. To jump ship now would be to exhibit a callous disregard for the meaningful litigation that has already occurred in the federal court system.3
Even if we were to engage in a Younger analysis at this juncture, abstention would be inappropriate. To abstain under Younger, “(1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.” Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006) (citation omitted). Defendants assert that state court proceedings that arise after a litigant files a federal complaint warrant abstention if no substantial
3That federal courts may raise abstention sua sponte does not alter our analysis of this issue. See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976). Even when abstention is raised by a court in the first instance, the evaluation still hinges on the existence of state proceedings at the initiation of the federal proceedings. See O’Neill v. Coughlan, 511 F.3d 638, 643 (6th Cir. 2008) (looking to the filing of the federal action to determine whether state proceedings were ongoing); Fed. Exp. Corp. v. Tenn. Pub. Serv. Comm’n, 925 F.2d 962, 969 (6th Cir. 1991) (discussing and relying on the “day-of-filing rule”).

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proceedings on the merits of the federal claims have occurred. See Hicks v. Miranda, 422 U.S. 332, 349 (1975). Because the merits of the claims in the SAC have yet to be resolved but resentencing proceedings are already ongoing, Defendants argue, the federal courts should abstain. True, Hicks and its progeny counsel against a mechanical comparison of the state and federal filing timestamps. But this court’s Younger precedent still requires us to look to the initiation of proceedings to determine whether the first prong of Younger has been satisfied. See, e.g., Loch v. Wakins, 337 F.3d 574, 578 (6th Cir. 2003) (citing Hicks and looking to the time the federal litigation was initiated); Carras v. Williams, 807 F.2d 1286, 1290 n.7 (6th Cir. 1986) (same); Zalman, 802 F.2d at 202–03 (same). In Hicks, the state court proceedings were initiated just one day after the federal plaintiffs completed service of the complaint. 422 U.S. at 338–39. Here, we are seven years into the federal case, and we cannot look at the SAC in a vacuum. Substantive proceedings on the merits of Plaintiffs’ overarching claim—that Michigan denies them a meaningful opportunity for release—have occurred in that time period. Plaintiffs should not be punished because the novel position they championed in 2010 was subsequently given a voice by the Supreme Court, a development that necessitated updates to the complaint in 2016. To do so would create perverse incentives that would punish Plaintiffs’ prescience in understanding the direction in which the Supreme Court was heading.
In sum, to find that the filing of the SAC required the district court to reconsider its jurisdiction would both expand and warp an otherwise cabined and clear doctrine. The resulting rule would be both untenable and unmoored from the purposes that drove Younger’s genesis. We decline to open the door to such a morass. Accordingly, we find Younger inapplicable to Plaintiffs’ claims.
D. The Heck Doctrine
The district court also dismissed Counts II, IV, and VI as barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). The Heck doctrine concerns the availability of § 1983 claims to prisoners. It states that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” 512 U.S. at 481; see also Preiser v. Rodriguez, 411 U.S. 475, 486 (1973) (observing that the language of the

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habeas statute is more specific than § 1983, and the history of the writ makes clear that it “has been accepted as the specific instrument to obtain release from [unlawful] confinement”).4 Claims that ordinarily fall within the scope of § 1983 are unavailable to prisoners if they “necessarily imply the invalidity of [a] . . . conviction or sentence.” Heck, 512 U.S. at 478. The word “necessarily” must not be ignored—if invalidation of a conviction or speedier release would not automatically flow from success on the § 1983 claim, then the Heck doctrine is inapplicable. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974) (determining that § 1983 remains available for procedural challenges where success in the case would not necessarily result in immediate or speedier release). Although not addressed by the district court, Defendants argue that Heck likewise requires dismissal of Count V. We will evaluate the applicability of Heck to each of Counts II, IV, V, and VI.
1. Count II
In Count II, Plaintiffs argue that the Eighth Amendment categorically prohibits sentences of life without parole for juvenile offenders. This Count covers those class members for whom prosecutors have filed renewed motions for life without parole sentences—the same individuals who currently remain in sentencing limbo. See supra Part I.D. Plaintiffs argue that Heck is inapplicable because they are not currently confined pursuant to a valid sentence. They say that this Count instead attempts to avert the future infliction of an allegedly unconstitutional sentence, and frame it as seeking prospective relief against “the resentencing process authorized” by the revised statutory scheme. Defendants respond that because resentencing is inevitable and because success on Count II would completely remove life without parole as an option, it necessarily implicates the duration of Plaintiffs’ confinement.5 Defendants also raise the specter of a Heck loophole: If the window between conviction and sentencing is open to § 1983 claims, then any defendant could protract criminal proceedings by challenging his anticipated sentence.

4Although often referred to as the “Heck bar,” this doctrine harks back to Preiser and was clarified in a number of other cases before the Supreme Court decided Heck. For ease of reference, we will nevertheless refer to it as the Heck bar or the Heck doctrine.
5Defendants’ arguments regarding impending resentencing is in tension with another justiciability argument they raise: that Plaintiffs’ claims are not yet ripe. See infra Part II.F.

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We agree that Count II falls within the purview of Heck. The difference between a preconviction challenge and one interposed between conviction and sentencing is material. The former depends on hypotheticals while the latter deals in certainties; an accused may not be found guilty, but our criminal system mandates that a person convicted will be subject to punishment. Although Plaintiffs identify a number of cases permitting § 1983 claims before conviction, they cite no authority permitting § 1983 claims between conviction and sentencing. The primary case on which Plaintiffs rely, Wallace v. Kato, highlights the distinctly hypothetical nature of pre-conviction cases. 549 U.S. 384 (2007). The Wallace Court considered a challenge by an individual whose conviction was invalidated on direct appeal for lack of probable cause at the time of arrest. Id. at 386. The petitioner’s case was remanded for a new trial but the prosecutors dismissed the charges against him instead. Id. at 387. He then filed a lawsuit under § 1983. Id. The Supreme Court held that the § 1983 claim was time-barred because the statute of limitations began to accrue at the time of his unlawful arrest. Id. at 391. Heck had not barred him from bring his civil lawsuit earlier because the doctrine does not cover claims “that would impugn an anticipated future conviction.” Id. at 393. The Court noted that applying Heck before conviction would require § 1983 plaintiffs and courts “to speculate about whether a prosecution will be brought, whether it will result in a conviction, and whether the pending civil action will impugn that verdict . . . [and] all this at a time when it can hardly be known what evidence the prosecution has in its possession.” Id. A pre-sentence challenge, by contrast, does not require such guesswork. Discretionary sentencing may render the precise length of a sentence somewhat uncertain, but the fact remains that an impending sentence is just that— impending.
The Heck doctrine instructs that no matter how a § 1983 claim is couched, if its success would necessarily affect the length of a sentence, the litigant must rely on habeas relief. Even if Plaintiffs frame their challenge as one to the sentencing process, Count II functionally asks us to declare sentences of life without parole for juvenile offenders unconstitutional. Such a ruling would necessarily implicate the duration of Plaintiffs’ impending sentences by imposing a ceiling, and Heck therefore requires Plaintiffs to follow a different legal path to obtain the relief. Fortunately, multiple avenues remain open for Plaintiffs to challenge life imprisonment without parole, including direct appeal and habeas. But because Count II necessarily implicates the

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length of their impending sentences, it is not cognizable under § 1983. The district court properly dismissed Count II.
2. Count IV
In Count IV Plaintiffs assert that “Defendants’ policies and procedures governing access to prison programming and parole eligibility, consideration[,] and release” deny them a “meaningful opportunity for release on parole before the end of their natural lives.” Plaintiffs assert that Count IV does not target the length or imposition of a new term-of-years sentence; it instead seeks “a parole consideration process, during the relevant statutory eligibility period, that is fair, realistic and meaningful.” Defendants say that because Count IV is framed as a challenge to “de facto life sentences,” it too implicates the length of their impending sentences, and therefore is barred by Heck.
The Supreme Court’s decision in Wilkinson v. Dotson, 544 U.S. 74, 78 (2005), and this court’s decision in Wershe v. Combs, 763 F.3d 500, 504 (6th Cir. 2014), control our analysis of Count IV. In Wilkinson, the Supreme Court considered whether two prisoners could use § 1983 to seek declaratory and injunctive relief in a constitutional challenge to Ohio’s parole procedures. See 544 U.S. at 76. The Court determined that in its “legal journey” through this line of cases, it had “focused on the need to ensure that state prisoners use only habeas corpus . . . when they seek to invalidate the duration of their confinement—either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody.” Id. at 81. The Court found that the prisoners’ claims were cognizable under § 1983 because a favorable judgment “at most [would] speed consideration of a new parole application,” but it would not automatically result in speedier release. Id. at 82. The Court found persuasive the fact that the Ohio parole authorities retained discretion to deny parole. Id.; see also Wolff, 418 U.S. at 554 (determining that § 1983 remains available for procedural challenges where success in the case would not necessarily result in immediate or speedier release).
In Wershe, this court considered whether a Michigan juvenile offender seeking effective parole procedures must obtain relief through habeas corpus rather than § 1983. See 763 F.3d

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500. Wershe had been convicted of possession of more than 650 grams of cocaine and was made technically eligible for parole when the Michigan Supreme Court eliminated a parole limitation for possession offenses in People v. Bullock, 485 N.W.2d 866 (Mich. 1992). Id. at 502. He subsequently brought suit challenging the parole procedures for failing to give him a fair opportunity for release, and the Sixth Circuit found his claim cognizable under § 1983:
Here, though, Wershe does not seek direct release from prison or a shorter sentence; he seeks a change in the procedures used to determine whether he is eligible for parole. Because “success in [his] § 1983 claim would not necessarily affect the duration of his sentence because prison officials would retain discretion regarding whether to grant him parole,” the habeas exception does not bar Wershe’s § 1983 claim. Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007).
Wershe, 763 F.3d at 504; see also Wilkinson, 544 U.S. at 80–82. The reasoning in Wilkinson and Wershe applies with equal force here, where the Plaintiffs do not seek direct release from prison or a shorter sentence, but instead seek an examination of the “Defendants’ policies and procedures governing access to prison programming and parole eligibility, consideration and release.” This circuit has already expressly found such challenges cognizable under § 1983. Following this clear precedent, we hold that Heck does not warrant dismissal of Count IV.
3. Count V
Count V asserts that the deprivation of good time, disciplinary, and other credits in Section 769.25a(6) violates the Ex Post Facto Clause of the Constitution. The district court dismissed Count V as failing to state a claim on which relief can be granted, but Defendants argue that Heck also demands dismissal.
At least two key Heck cases squarely address the interplay between good time credits and § 1983 challenges. Under the credit system at issue in Preiser, the restoration of credits would have automatically resulted in the deduction of time from the challenged sentence. 411 U.S. at 487. Success on the § 1983 claim necessarily implicated the duration of confinement and was therefore not cognizable. Id. at 487–88. By contrast, in Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court evaluated a challenge to prison officials’ revocation of good time credits by means of constitutionally infirm disciplinary proceedings. The Court found that the challenge was cognizable under § 1983 because the prisoners could obtain prospective relief—

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the implementation of valid disciplinary proceedings—without necessitating restoration of their good time credits. 418 U.S. at 554–55. Because success did not mean earlier release, the § 1983 claim could proceed. Id. The differing outcomes of Preiser and Wolff show that the critical question is whether restoring credits automatically results in earlier release.
Under Michigan’s parole system, credits deducted from a term-of-years sentence do not automatically result in earlier release; they merely hasten the date on which prisoners fall within the jurisdiction of the Michigan Parole Board. Even after an inmate falls within its jurisdiction, the Board retains discretion to grant or deny parole. See Mich. Comp. Laws § 791.234(11). Success on Count V would not, therefore, necessarily shorten the duration of confinement, rendering this case similar to the cognizable § 1983 claim in Wolff. See also Wilkinson, 544 U.S. at 82 (finding that success for the plaintiffs would at most speed consideration of a new parole application, or result in a new parole hearing, which would not “necessarily spell speedier release” and thus did not lie at the core of habeas corpus relief); Wershe, 763 F.3d at 504 (finding a § 1983 challenge to the parole process cognizable where “prison officials would retain discretion regarding whether to grant . . . parole”). Heck does not bar Count V.
4. Count VI
Count VI alleges that by failing or refusing “to provide programming, education, training and rehabilitation opportunities,” Defendants have “deprived Plaintiffs of meaningful opportunities to obtain release based on their demonstrated growth, maturity and rehabilitation.” Defendants argue that the district court properly dismissed Count VI under Heck because it “implicates the constitutionality of their (impending) sentences.” But Heck does not bar claims that implicate the constitutionality of a sentence; it bars claims that necessarily implicate the length or duration of a sentence. Just as the Wolff petitioners could use § 1983 to obtain constitutionally sound disciplinary procedures without running afoul of Heck, Plaintiffs may use Count VI to seek better rehabilitative programming without necessarily expediting their release. Count VI seeks to make the period of confinement more meaningful, which may indirectly result in speedier release. But that indirect result flows from the discretion of the Michigan Parole Board; it does not automatically follow from success on Count VI. Accordingly, Count VI is cognizable under § 1983.

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In holding that Heck does not bar Counts IV, V, and VI, we adhere to the lines carefully drawn by the Supreme Court and this circuit. We must look to the possible results when determining what remedies are open to prisoners bringing constitutional challenges. Where vindication of a constitutional right would necessarily allow a prisoner to walk free before his sentence expires, Heck instructs that he must pursue his claims via habeas. But where success would not automatically result in speedier release, Wilkinson, Wolff, and this court’s decision in Wershe demonstrate that § 1983 remains an available remedy. Because the Michigan Parole Board retains discretion to deny parole to those who are or become eligible, success on Counts IV, V, and VI would not automatically spell speedier release for Plaintiffs. Accordingly, these claims may proceed under § 1983.
E. The Ex Post Facto Clause
The district court found that Plaintiffs failed to state a claim on which relief can be granted in Count V, which argues that the retroactive elimination of their accrued credits violates the Ex Post Facto Clause of the Constitution. The Ex Post Facto Clause prohibits any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325–26 (1866)). A criminal law violates the Ex Post Facto Clause if it (1) applies to events occurring before its enactment, and (2) disadvantages the offender affected by it. See United States v. Kruger, 838 F.3d 786, 790 (6th Cir. 2016) (citing Weaver, 450 U.S. at 29). The Supreme Court has long held that the retroactive elimination of credits implicates the Ex Post Facto Clause. In Weaver, the Court examined changes to Florida’s formula for computing “gain-time” or good time credits. 450 U.S. 24. The changes did not eliminate any of the credits the petitioner earned under the old formula, but did curtail the availability of new credits. Id. at 27–28. The Court found that the new formula ran “afoul” of the Ex Post Facto Clause because it “constrict[ed] the inmate’s opportunity to earn early release, and thereby ma[de] more onerous the punishment for crimes committed before its enactment.” Id. at 35–36; see also Lynce v. Mathis, 519 U.S. 433, 445–46 (1997) (finding that cancellation of provisional early release credits had the effect of increasing the prisoner’s punishment).

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To state a claim in Count V, Plaintiffs must plausibly allege that the 2014 amendments disadvantaged them by eliminating credits they earned during their mandatory sentences of life without parole. Section 769.25a(6) provides that a youth offender subject to resentencing “shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” No one disputes that this provision applies retroactively. There is, however, considerable dispute between the parties as to whether the Plaintiffs earned any credits during their prior mandatory sentences of life without parole. The district court did not resolve this dispute, but found that even if the Plaintiffs were eligible for credits while serving their mandatory sentences, their elimination did not disadvantage Plaintiffs because they could not have been used to discount their life sentences. We first address whether Plaintiffs have sufficiently alleged that they were entitled to credits during their mandatory life sentences, and then consider whether the elimination of such credits disadvantaged them.
Plaintiffs identify several statutory provisions which they say entitled them to at least two forms of credits. First, they note that prisoners serving sentences for crimes committed before April 1, 1987 are eligible for good time credits. Mich. Comp. Laws § 800.33(2). Prior to 1978, good time credits were applied to a prisoner’s minimum and maximum sentences, but since 1978, good time credits have applied only to a prisoner’s maximum term. Lowe v. Dep’t of Corr., 521 N.W.2d 336, 336–37 (Mich. Ct. App. 1994). Seventy-three class members were convicted for offenses occurring prior to 1987, and Plaintiffs allege that these individuals earned good time credits. Plaintiffs also assert that the entire class became eligible for additional credits when Michigan created disciplinary credits in 1982. The relevant statutory provision provides:
[A]ll prisoners serving a sentence on December 30, 1982, or incarcerated after December 30, 1982, for the conviction of a crime enumerated in section 33b(a) to (cc) of 1953 PA 232, MCL 791.233b, are eligible to earn a disciplinary credit of 5 days per month for each month served after December 30, 1982. Accumulated disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence in order to determine his or her parole eligibility dates.
Mich. Comp. Laws § 800.33(5). Section 791.233b states that one “is not eligible for parole until the person has served the minimum term imposed by the court less an allowance for disciplinary credits,” and then lists the groups of offenders who may earn disciplinary credits, including

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individuals convicted of first-degree murder under Section 750.316. Section 800.33 also specifies that “[a]ccumulated disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence in order to determine his parole eligibility dates.” Because Plaintiffs fell within Section 750.316 prior to the 2014 amendments, they allege that they were earning disciplinary credits while serving their mandatory life sentences. Defendants respond that these provisions could not have applied to Plaintiffs because, as individuals sentenced to life without parole, they had neither minimum nor maximum sentences to which such credits could be applied.
Several Michigan cases support Plaintiffs’ position. In Moore v. Buchko, the Michigan Supreme Court evaluated a prisoner’s claims seeking application of good time credits he had previously earned while serving a sentence of life without parole. 154 N.W.2d 437 (Mich. 1967). The prisoner’s life sentence had been vacated on constitutional grounds, and his case remanded for a new trial, where the jury convicted him of second-degree murder and the trial judge sentenced him to a term of 25 to 40 years. Id. at 438. The Michigan Supreme Court determined that he was entitled to the good time credit he had earned while serving under his invalidated conviction and sentence. Id. at 439. In another case, a defendant was convicted of first-degree murder under Section 750.316 and sentenced to life in prison. See Wayne Cty. Prosecuting Attorney v. Mich. Dep’t of Corr., No. 186106, 1997 WL 33345050 (Mich. Ct. App. June 17, 1997). His conviction was reversed on appeal, but he pleaded guilty to second-degree murder rather than stand for a second trial. He then received a new sentence of 20 to 30 years. Id. at *1. The defendant sought the application of the credits he had earned between his first and second sentences, and even though his first sentence was indeterminate, the court gave him the credits he earned in that window. Id. at *3–4. We think that between these two cases and the express statutory language in Sections 791.233b and 800.33, Plaintiffs have plausibly alleged that they were eligible to earn good time and disciplinary credits during their mandatory life sentences. We therefore must determine whether Section 769.25a(6)’s retroactive elimination of these credits disadvantages Plaintiffs.
Plaintiffs point to Jennifer Pruitt’s situation to illustrate how Section 769.25a(6) disadvantages them. Pruitt, a Named Plaintiff, has had an exemplary prison record and

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accumulated approximately 1,500 days of disciplinary credits for her positive behavior during her mandatory life sentence. She has been resentenced to a term 30 to 60 years, of which she has already served twenty-five years and four months. Under Section 769.25a(6), she will not be eligible for review by the Michigan Parole Board for at least four years. If her disciplinary credits were to be restored, she would be eligible for review now.6 Plaintiffs argue that in this way, Section 769.25a(6) “constricts [their] opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment.” Weaver, 450 U.S. at 35–36. We agree that Pruitt’s situation well illustrates the prejudicial effects of Section 769.25a(6). To the extent that Plaintiffs earned credits during the mandatory life sentences, the retroactive elimination thereof is detrimental. We find that Plaintiffs have pleaded sufficient factual information to support the reasonable inference that Section 769.25a(6) disadvantages them. Accordingly, Plaintiffs have stated a plausible claim for relief in Count V.
F. Ripeness
Finally, we pause to consider Defendants’ ripeness arguments, which were not addressed in the district court’s opinion. The ripeness doctrine aims “to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (citation omitted). The Supreme Court has set forth a two-prong evaluation for addressing ripeness: A claim is ripe where it is “fit for judicial decision” and where “withholding court consideration” will cause hardship to the parties. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 153 (1967).
The Supreme Court has instructed that claims are fit for review if they present “purely legal” issues that “will not be clarified by further factual development.” Thomas, 473 U.S. at 581. This court has heeded these instructions and found pre-enforcement facial constitutional challenges ripe for review. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377, 399 (6th Cir. 2001) (finding that a group of plaintiffs could challenge an ordinance’s “judicial review provisions” even before seeking the permits that were
6As noted above, the Michigan Parole Board retains discretion to deny parole even after the application of good time and disciplinary credits, see Mich. Comp. Laws § 791.234(11), meaning that restoration thereof will not automatically result in speedier release.

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the subject of the ordinance); Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 290–91 (6th Cir. 1997) (determining that facial challenges to a statute on Commerce Clause and Equal Protection grounds were fit for review because they could be resolved by looking to the statutory text and constitutional precedent). Plaintiffs’ claims do not turn on the individual sentences class members have received or will receive, and, therefore, no further factual development is necessary to resolve Plaintiffs’ claims.
The logic of Deja Vu and Magaw apply here: Plaintiffs seek facial review of the constitutionality of specific sentencing provisions that, Plaintiffs allege, inflict constitutional harm no matter how they are applied to individuals. Count IV asks the court to consider whether the Michigan Parole Board’s procedures deprive Plaintiffs of a “fair, realistic and meaningful” opportunity for release. Like the pre-enforcement challenge in Deja Vu, Count IV challenges the review process itself. And the process by which the Board reviews youth offenders’ cases is the same for all class members regardless of when they first come within its jurisdiction. If the Board’s process violates the Eighth and Fourteenth Amendments by failing to account for youth, it will harm a class member who is up for parole next week in the same way it will harm one who is up for parole next decade. Similarly, Count VI is a facial challenge to the lack of rehabilitative programming. The deprivation of education, training and rehabilitation opportunities is just as injurious to a youth offender serving 25 to 60 years as it is to a youth offender serving 40 to 60 years, especially when both individuals will eventually be subject to the same parole review process, which considers their rehabilitative efforts. Under Deja Vu and Magaw, the facial pre-enforcement challenges contemplated by Counts IV and VI are fit for judicial review.
Count V asks whether the elimination of Plaintiffs’ good time credits violates the Ex Post Facto Clause. Michigan’s sentencing scheme eliminates credits for all individuals sentenced under Section 769.25a, without regard to the length of the sentence, and the constitutionality of this deprivation is a purely legal question. In sum, Plaintiffs’ facial challenges to Michigan’s sentencing scheme may be evaluated independently from any one individual’s sentence. The individual sentences that class members receive will not sharpen the issues or even factor into

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the legal analysis necessary to resolve these claims. Accordingly, the first prong of the ripeness test is satisfied.
Plaintiffs will also suffer hardship absent judicial consideration of their claims. As Defendants have vigorously argued, resentencing under the amended scheme is inevitable and impending. See supra Part II.D.1. Thus, Plaintiffs face imminent harm, including delayed and arguably inadequate consideration by the Michigan Parole Board. The second prong of the ripeness test is therefore also satisfied.
Plaintiffs’ surviving claims do not create the risk of entanglement in abstract disputes. Rather, they raise concrete facial constitutional challenges to an operative statutory scheme. Plaintiffs’ claims in Counts IV, V, and VI are ripe. Our conclusion is cemented by the fact that a number of class members have already been resentenced pursuant to the scheme they challenge.
Withholding judicial review of these three claims, moreover, would inflict broader societal harms: Relegating these issues to piecemeal resolution by individual offenders risks duplicative litigation and inconsistent determination of constitutional questions. By contrast, evaluating the facial challenges presented in Counts IV, V, and VI in one class action will avoid patchwork decisions, promote consistency, conserve scarce judicial resources, and provide crucial guidance to the parties and the public alike.
Importantly, permitting federal adjudication of Plaintiffs’ facial challenges honors the federalism principles discussed above. See supra Part II.C. Today’s decision leaves to Michigan courts the normal task of resentencing state prisoners under state law. Should any class members wish to bring individualized challenges to their new sentences, they may do so via direct appeal or habeas. Thus, we preserve the line between federal and state court adjudication and observe the comity the federal courts owe to our state courts.
III. CONCLUSION
This decision returns us to the question, pending since 2010, of the constitutionality of Michigan’s statutory punishments for crimes committed by Plaintiffs when they were children. United States and Michigan Supreme Court cases and Michigan’s statutory amendments

2:10-cv-14C56a8se-M: 1A7G-1-R25S2W DDooccu#m1e7n9t: 32F-i2led 1F2il/e2d0:/1172/20P/2g02177of 2P8ageP:g2I5D 2477 (27 of 28)

No. 17-1252

Hill, et al. v. Snyder, et al.

Page 25

interceded, delaying determination of what constitutes a meaningful opportunity for release for these youth offenders. Some of the long-pending issues are concluded by our affirmance of the district court’s dismissal of Counts I and II. Others remain, however, as we reverse the district court’s dismissal of Counts IV, V, and VI. We remand those claims for expeditious resolution in further proceedings consistent with this opinion.

2:10-cv-145C6a8s-eM:A1G7--1R2S5W2 Docu#m1e7n9t: 3F2i-l3ed 1F2i/l2e0d/:1172/2P0/g202187of 2P8 agPeg: 1ID 2478 (28 of 28)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 17-1252

HENRY HILL, et al., Plaintiffs - Appellants,
v.
RICK SNYDER, et al., Defendants - Appellees.

FILED
Dec 20, 2017
DEBORAH S. HUNT, Clerk

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s dismissal of Counts I and II is AFFIRMED, and its dismissal of Counts IV, V, and VI is REVERSED and REMANDED for an expeditious resolution and further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 2:10-cv-14568-MAG-RSW ECF No. 230 filed 06/06/18 PageID.3411 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, KEITH MAXEY, GIOVANNI CASPER, JEAN CARLOS CINTRON, NICOLE DUPURE and DONTEZ TILLMAN, individually and on behalf of those similarly situated,
Plaintiffs, v
RICK SNYDER, in his official capacity as Governor of the State of Michigan, HEIDI E. WASHINGTON, in her official and individual capacity as Director of the Michigan Department of Corrections, MICHAEL EAGEN, in his official and individual capacity as Chair of the Michigan Parole Board, and BILL SCHUETTE, in his official capacity as Attorney General of the State of Michigan,

No. 5:10-cv-14568 HON. MARK A. GOLDSMITH MAG. R. STEVEN WHALEN

Defendants.

Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) American Civil Liberties Union of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824

Deborah A. LaBelle (P31595) Attorney for Plaintiffs 221 N. Main Street Suite 300 Ann Arbor, MI 48104 (734) 996-5620

Case 2:10-cv-14568-MAG-RSW ECF No. 230 filed 06/06/18 PageID.3412 Page 2 of 3

B. Eric Restuccia (P49550)

Ronald J. Reosti (P19368)

Kathryn M. Dalzell (P78648)

23800 Woodward Ave.

A. Peter Govorchin (P31161)

Pleasant Ridge, MI 48069

Attorneys for Defendants

(248) 691-4200

Michigan Department of Attorney General

Civil Litigation, Employment & Elections Division Ezekiel R. Edwards

P.O. Box 30736

ACLU Foundation

Lansing, MI 48909

Criminal Law Reform Project

(517) 373-643410

125 Broad Street, 17th Floor

New York, NY 10004

(212) 549-2610
_______________________________________________________________/

STIPULATION REGARDING DISMISSAL OF PLAINTIFFS’ CLAIMS FOR MONEY DAMAGES AND DEFENDANTS’ WITHDRAWAL OF
THEIR MOTION TO AMEND THEIR ANSWER TO PLAINTIFFS SECOND AMENDED COMPLAINT
The parties, through their respective counsel, stipulate that 1) The Plaintiffs’ claim for money damages raised in their second amended complaint (R. 130) may be deemed dismissed with prejudice; and 2) The Defendants’ motion to amend their answer to the second amended complaint is withdrawn, dropping Defendants’ assertion of the defense of Plaintiffs’ alleged failure to exhaust Plaintiffs’ available administrative remedies. SO ORDERED.

Dated: June 6, 2018 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge
1

Case 2:10-cv-14568-MAG-RSW ECF No. 230 filed 06/06/18 PageID.3413 Page 3 of 3

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on June 6, 2018.
s/Karri Sandusky Case Manager

Approved by:
s/Deborah A. LaBelle (w/consent) Deborah A. LaBelle (P31595) Attorney for Plaintiffs 221 N. Main Street Suite 300 Ann Arbor, MI 48104 (734) 996-5620
s/Kathryn M. Dalzell Kathryn M. Dalzell (P78648) B. Eric Restuccia (P49550) A. Peter Govorchin (P31161) Attorneys for Defendants P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

June 5, 2018 Date
June 6, 2018 Date

2

 
 Case 2:10-cv-14568-MAG-RSW ECF No. 283 filed 02/26/19 PageID.4520 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, vs.

Case No. 10-cv-14568 Hon. Mark A. Goldsmith

GRETCHEN WHITMER, et al.

Defendants. ____________________________/

OPINION & ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL COMPLIANCE WITH JUDGMENT
(Dkt. 240)

This matter is before the Court on Plaintiffs’ motion to compel compliance with judgment

(Dkt. 240). On April 9, 2018, this Court entered a final partial judgment ordering Defendants to

“cause to be calculated the good time and disciplinary credits for each subclass member . . . who

has been resentenced, without regard to, or application of, Mich. Comp. Laws § 769.25a(6), for

purposes of determining parole eligibility dates.” 4/9/2018 Final Partial Judgment as to Count V

(Dkt. 204). Plaintiffs contend that, for at least two subclass members, Defendants have refused to

apply credits that they must apply under state law and Michigan Department of Corrections

(“MDOC”) policies, in violation of the April 9 Judgment. They ask this Court for an order

compelling Defendants to comply with the April 9 Judgment. A hearing on Plaintiffs’ motion was

held on January 3, 2019. For the following reasons, the Court denies the motion.

I. BACKGROUND

On April 9, 2018, this Court entered a Judgment declaring that Michigan Compiled Laws

§ 769.25a(6) – which provides that individuals re-sentenced under Michigan’s post-Miller v. 1

Case 2:10-cv-14568-MAG-RSW ECF No. 283 filed 02/26/19 PageID.4521 Page 2 of 5
Alabama, 567 U.S. 460 (2012) sentencing scheme “shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence” – was unconstitutional, as violation of the Ex Post Facto Clause of the United States Constitution. See 4/9/2018 Final Partial Judgment as to Count V. The Court permanently enjoined Defendants from enforcing or applying Michigan Compiled Laws § 769.25a(6), and ordered that within fourteen days, “Defendants shall cause to be calculated the good time credits and disciplinary credits for each subclass member . . . who ha[d] been resentenced, without regard to, or application of, Mich. Comp. Laws § 769.25a(6), for purposes of determining parole eligibility dates.” Id.
MDOC Policies set forth the procedures for the award of good time and disciplinary credits. The warden at each facility must ensure that each prisoner has a designated “Good Time Committee,” consisting of the prisoner’s resident unit manager, a corrections officer assigned to the prisoner’s housing unit, and others. MDOC Policy Directive 03.01.100, Ex. 1 to Pls. Mot., ¶ I (Dkt. 240-2). The good time committee “shall be responsible for recommending to the Warden whether forfeited good time credits should be restored and whether Special Good Time credits should be granted on a prisoner’s minimum or maximum sentence, consistent with this policy.” Id. ¶ J.
Prisoners automatically accrue “good time” credits, id. ¶ L, but do not have a right to receive “special good time” credits, id. ¶ O. A prisoner is eligible for consideration for special good time credits only if he or she (1) “received consistently good to excellent assignment reports during the review period and made satisfactory progress toward completing reception facility recommendations” or (2) “performed a specific exemplary or meritorious act.” Id. The good time committee for each identified prisoner shall recommend to the Warden whether to grant the
2

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prisoner special good time credits and if so, the amount to be granted. Id. ¶ R. After receiving the good time committee’s recommendation, the warden must determine whether to grant special good time credits. Id. ¶ S. The procedure for “disciplinary” credits and “special disciplinary” credits is virtually identical. MDOC Policy Directive 03.01.101, Ex. 2 to Pls. Mot., ¶¶ L, M, O, R, U, V (Dkt. 240-3).
Plaintiffs argue that Defendants did not follow the above-described policies when determining the amount of credits to award Plaintiffs James Howard and Dennis Johnson. Although Howard was eligible for 4,586 days of credit, and Johnson eligible for 4,495 days, both received zero days of credit. Pl. Mot. ¶ 13. Plaintiffs allege that if these two individuals had received even four percent of the credits available to them, they would have been immediately released on April 23, 2018, because they would have reached their maximum statutory sentences. Id. ¶ 16.
Randee Rewerts, the warden responsible for determining Howard’s credits, testified that he received a call from Deputy Director Ken McKee, and was told that Howard “wasn’t going to get any good time credits.” Randee Rewerts Dep. Tr., Ex. 5 to Pls. Mot., at 25 (Dkt. 240-6). Rewerts further stated that he told a deputy to “tell the [Good Time] Committee that he [Howard] was going to get zero,” something he had never done before and that would violate policy as he understood it. Id. at 33-34. Rewerts testified that he “was told that, if [Howard] was to get credits, that he would be out within the week, and we wouldn’t have time to prepare him for success on the other side.” Rewerts Dep. at 27.
Erik Balcarcel, the warden responsible for determining Johnson’s credits, testified that he did not review Johnson’s file, and the good time committee did not consider Johnson’s case or make a recommendation to the warden. Erik Balcarcel Dep. Tr., Ex. 6 to Pls. Mot., at 27-28 (Dkt.
3

Case 2:10-cv-14568-MAG-RSW ECF No. 283 filed 02/26/19 PageID.4523 Page 4 of 5
240-7). Instead, Balcarcel was told that a decision on Johnson’s credit would come from “Central Office.” Id. at 28-29, 38-41. Balcarcel also testified that “we determined that [Johnson] would need his additional programming . . . in order to prepare to go back out.” Balcarcel Dep. at 29.
II. ANALYSIS Plaintiffs argue that the violation of MDOC policy in Howard’s and Johnson’s cases runs afoul of this Court’s April 9, 2018 Judgment. Although Howard had an expected parole release date of August 14, 2018, and Johnson was discharged from parole on July 18, 2018, Plaintiffs argue that Defendants “will continue to circumvent policies and avoid applying credits to any Plaintiff resentenced in the future whose proper calculation of credits would result in their release from prison due to good or exemplary behavior.” Pls. Mot. ¶ 30. In response, Defendants argue that the wardens have discretion in determining whether to award credits to prisoners. Defs. Resp. at 3 (Dkt. 247). They note that both Michigan Compiled Laws § 800.33 and Policy Directives 03.01.100 and 03.01.101 use the word “may,” and these same policy directives state that prisoners do not automatically earn these credits. Defendants claim that the decisions to award zero credits to Howard and Johnson were not arbitrary, but were instead based on the rationale that prisoners who had been incarcerated for decades “should receive at lease some release preparation before re-entering into the community[.]” Id. at 5. Defendants argue that they calculated credits in accordance with this Court’s April 9, 2018 Order, and the wardens subsequently used their discretion to award zero special good time or special disciplinary credits to Howard and Johnson, which would allow time for release preparation. Defendants are not in violation of the Court’s April 9, 2018 Judgment. The Court ordered Defendants to calculate good time and disciplinary credits for class members without regard to Michigan Compiled Laws § 769.25a(6). Defendants have done so. While Plaintiffs argue that Defendants have circumvented established procedures, the details of the implementation of
4

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MDOC Policies are not presently before this Court. If Plaintiffs believe that Defendants have

violated their own policies or state law, any such contention would have to be set forth in a new

claim and possibly a new suit. The Court intimates no view as to how such a claim may or should

be brought, but the conduct challenged in the instant motion is not currently part of this action nor

a violation of this Court’s Judgment.

III. CONCLUSION

For the reasons provided, Plaintiffs’ motion to compel compliance with judgment (Dkt.

240) is denied.

SO ORDERED.

Dated: February 26, 2019 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 26, 2019.
s/Kristen MacKay for Karri Sandusky Case Manager

5

 
 Case 2:10-cv-14568-MAG-RSW ECF No. 285 filed 07/12/19 PageID.4530 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs, vs.

Case No. 10-cv-14568 Hon. Mark A. Goldsmith

GRETCHEN WHITMER, et al.,

Defendants. ____________________________/

OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (Dkt. 267)

The Supreme Court has held that a mandatory sentence of life imprisonment for a juvenile

homicide offender violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

Montgomery v. Louisiana, 136 S. Ct. 718 (2016); Miller v. Alabama, 567 U.S. 460 (2012). A

sentencing scheme must provide juvenile offenders “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.” Miller, 567 U.S. at 479 (quoting

Graham v. Florida, 560 U.S. 48, 75 (2010)). In this class action, Plaintiffs and class members

(together, “Plaintiffs”) are juvenile homicide offenders who, prior to the Supreme Court’s

decisions, were sentenced to mandatory life without parole. Now, in light of Montgomery and

Miller, they are being resentenced and, for the first time, have the opportunity to appear before the

parole board.

Count VI of Plaintiffs’ second amended complaint, the sole remaining claim in this case,

alleges that Defendants have “refused and failed to provide programming, education, training and

rehabilitation opportunities necessary for Plaintiffs to demonstrate their suitability for release,” 2d

1

Case 2:10-cv-14568-MAG-RSW ECF No. 285 filed 07/12/19 PageID.4531 Page 2 of 15
Am. Comp. ¶ 226 (Dkt. 130), which “has resulted in Plaintiffs’ loss of liberty[ and] extended their incarceration, causing them physical injuries and severe emotional distress,” id. ¶ 228, in violation of the Eighth and Fourteenth Amendments. Defendants Heidi Washington and Michael Eagen have moved for summary judgment on this claim (Dkt. 267).1 The motion is fully briefed, and because oral argument will not aid the decisional process, the motion will be decided based on the parties’ briefing. See E.D. Mich. L.R. 7.1(f)(2); Fed. R. Civ. P. 78(b). For the reasons that follow, the Court grants in part and denies in part Defendants’ motion.
I. BACKGROUND In 2012, the Supreme Court held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Miller v. Alabama, 567 U.S. 460, 470 (2012); see also Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016) (holding that Miller applies retroactively). The Michigan legislature, which had previously excluded youth offenders convicted of first-degree murder from the jurisdiction of the Michigan Parole Board, see Michigan Compiled Laws §§ 750.316, 791.234(6)(a), amended its statutory scheme to address Miller and Montgomery. The new provision mandates resentencing for juveniles who were convicted of first-degree homicide offenses before Miller and who received mandatory lifewithout-parole sentences. Mich. Comp. Laws § 769.25a. The statute requires these individuals to be resentenced either to life without parole or to a term of years. Id. § 769.25a(2). Prosecutors may seek a life-without-parole sentence by filing a motion specifying the grounds for imposing such a punishment. See id. § 769.25a(4)(b). The
1 Washington is the Director of the Michigan Department of Corrections and Eagen is the Chair of the Michigan Parole Board. Defendants Gretchen Whitmer, Governor of the State of Michigan, and Dana Nessel, Attorney General of the State of Michigan, are also listed on the docket as having brought the instant motion, but the Second Amended Complaint lists Count VI as seeking relief only against Washington and Eagen. 2d Am. Compl. at 55.
2

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sentencing court must then hold a hearing on the motion, at which “the trial court shall consider
the factors listed in Miller v. Alabama, and may consider any other criteria relevant to its decision,
including the individual’s record while incarcerated.” Id. §§ 769.25(6) (internal citations omitted);
769.25a(4)(b). If no such motion is filed, the court must resentence the individual to a minimum
term of 25-40 years and a maximum term of 60 years. Id. § 769.25a(4)(c). At the time the instant
motion was filed, approximately 235 Plaintiffs were still awaiting resentencing. See Mandatory
Juvenile Life Without Parole – Parole Board Working Document, Ex. A to Defs. Mot. (listing 235 individuals who have yet to be resentenced).2
Plaintiffs who have yet to be resentenced are denied “core” rehabilitative programming.
See, e.g., McNeal Dep., Ex. 5 to Pls. Resp., at 63 (“You are currently a lifer and are unable to
participate in these programs.”) (Dkt. 274-5). “Core” programming for inmates consists of thirteen
programs for men and thirteen programs for women. See Policy Directive 05.01.100, Ex. E to
Defs. Mot. (listing programs). This includes the Violence Prevention Program, Michigan Sex
Offender Programming, Thinking for a Change, and substance abuse programs, among others.
Eagen Dep., Ex. F to Defs. Mot., at 109; Washington Dep., Ex. 4 to Pls. Resp., at 33-34 (Dkt. 2744).3 The programs have certain specific criteria, and when an individual meets those criteria, the
2 Plaintiffs provide a different count in their response to the motion for summary judgment, saying that 199 Plaintiffs have yet to be resentenced. See List of Plaintiffs Awaiting Resentencing, Ex. 1 to Pls. Resp. (Dkt. 274-1). This discrepancy has no bearing on the Court’s decision. The Court further notes that this opinion relies on the numbers set forth in Defendants’ summary judgment motion, rather than the numbers referred to in Defendants’ exhibit to their reply brief. The numbers reflected in this exhibit are not so different from the numbers provided in the original motion so as to affect the Court’s decision. 3 MDOC offers other programs that are not considered “core,” but these are only vaguely described by the parties. For example, Plaintiffs refer to “self-help classes and prison work assignments” as non-core programs. Pls. Resp. at 16 (Dkt. 274). Defendants’ brief discusses “various MDOC work activities,” vocational classes, and programs such as Cage Your Rage, Chance for Life, Thinking for Change, and substance abuse programs. Defs. Mot. at 9-10 (Thinking for Change,
3

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core program is recommended for him or her when he or she enters the prison. Eagen Dep. at 109; Washington Dep. at 34.
Core programming is made available to a particular prisoner based on his or her proximity to the prisoner’s earliest release date (“ERD”) (also known as “parole board jurisdiction date,” or “PBJ”). Defs. Mot. at 4-5 (citing Eagen Dep. at 71).
Plaintiffs who have not yet been resentenced do not have an ERD/PBJ date, and, therefore, are not put into core programs. Defendant Michael Eagen, chairperson for the Michigan Parole Board, explained that “we don’t know if they’re going to get a parole decision, and . . . some of these services are offered to other prisoners and I wouldn’t want to be pushing out people that might have ERD dates that are going to be paroled out from getting those programs.” Eagen Dep. at 71. Kyle Kaminski, Legislative Liaison for MDOC, further explained that Plaintiffs “were often advised that they wouldn’t be placed in the program because the program groups were set based on the Parole Board Jurisdiction Date, and we program those closest to their Parole Board Jurisdiction Date first, and so the lifers were not at the top of the list to go to programming.” Kaminski Dep., Ex. D to Defs. Mot., at 41. Plaintiffs contend that the denial of core programming violates their Eighth and Fourteenth Amendment rights.
Defendants admit that it is possible that prisoners who have not completed certain programming may be directed by the parole board to complete that programming before they can be released on parole, even though the programming has not yet been made available to them.
however, is listed as a “core program” by Policy Directive 05.01.100. Ex. E to Defs. Mot.). Testimony from Kyle Kaminski, Legislative Liaison for MDOC, also suggests that vocational programming, education programming (GED, special education, English as a Second Language), a basic financial program called “Money Smart,” and a digital literacy training program offered by Microsoft are non-core programs. See Kaminski Dep., Ex. D to Defs. Mot., at 53-56, 83-84. Nonetheless, its precise meaning is not material to the Court’s decision.
4

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Defs. Mot. at 5. Defendants point out, however, that once a Plaintiff is resentenced, he or she then has an ERD/PBJ date, and is able to participate in core programming in accordance with this date. Defs. Reply at 4 (Dkt. 277).
Defendants represent that the vast majority of Plaintiffs who have received a parole decision – 68 out of 72 parole-eligible class members – were released on parole. Defs. Mot. at 3 (citing Mandatory Juvenile Life Without Parole – Parole Board Working Document). The four Plaintiffs who were parole eligible, but denied immediate parole, will be able to appear again before the parole board anywhere from one to five years after their initial appearance. Id. at 2-3. The majority of Plaintiffs, however – 235 out of a class of 373 – have yet to be resentenced. Id. at 3.
II. STANDARD OF REVIEW A motion for summary judgment under Federal Rule of Civil Procedure 56 shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when there are “disputes over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant satisfies its initial burden of demonstrating the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact. Scott, 550 U.S. at 380; Celotex Corp. v. Catrett, 477 U.S. 317, 323
5

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(1986). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Scott, 550 U.S. at 380 (quoting Matsushita, 475 U.S. at 586), as the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment,” id. (quoting Anderson, 477 U.S. at 247-248) (emphasis in original); see also Babcock & Wilcox Co. v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017) (“A mere scintilla of evidence or some metaphysical doubt as to a material fact is insufficient to forestall summary judgment.”).
III. ANALYSIS Plaintiffs argue that Defendants’ denial of core programming deprives them of their constitutional right to a meaningful opportunity to obtain release at both resentencings and parole hearings. Their argument is based on the Supreme Court’s holdings in Graham and Miller. Graham held that life without parole for juvenile offenders convicted of nonhomicide offenses was unconstitutional. The Court found that the Eighth Amendment requires states to afford a nonhomicide juvenile offender a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” and that “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.” Graham, 560 U.S. at 73, 75. In Miller, the Court stated that “Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” 567 U.S. at 472. As Plaintiffs argue that Graham and Miller have implications at both resentencing and parole hearings, the Court will address each proceeding in turn. A. Resentencings Currently, some 235 Plaintiffs are awaiting resentencing, either to a term of years or, again, to life imprisonment. Mandatory Juvenile Life Without Parole – Parole Board Working
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Document. The statute governing resentencings provides that judges are to consider “the factors listed in Miller v Alabama,” Mich. Comp. Laws § 769.25(6), which, although not explicitly stated in the statute, include “chronological age and its hallmark features,” “the family and home environment,” “the circumstances of the homicide offense,” whether the defendant “might have been charged and convicted of a lesser offense if not for incompetencies associated with youth,” and “the possibility of rehabilitation,” Miller, 567 U.S. at 477. A judge also “may consider any other criteria relevant to its decision, including the individual’s record while incarcerated.” Mich. Comp. Laws § 769.25(6). Plaintiffs argue that because the judges overseeing the resentencings are to consider “the individual’s record while incarcerated,” Plaintiffs’ inability to show that they have completed recommended programming is detrimental to their chances of receiving a lesser sentence. See Pls. Resp. at 5-6 (Dkt. 274).
Plaintiffs do not explain why their education while incarcerated, work history, relationships with staff and other inmates, behavioral history, and completion of non-core programs would not also be considered by the sentencing judge. There is nothing in Miller or the statute that mandates that the judge even consider core programming. Further, to the extent that a Plaintiff has been prevented from taking a certain core program, his or her attorney can bring this fact to the judge’s attention. Plaintiffs admit that the judges are not giving “exclusive consideration” to completion of programming, but argue that when the stakes are so high (because Plaintiffs may face the possibility of life without parole at resentencing), “any significant barrier to Plaintiffs’ ability to demonstrate rehabilitation is constitutionally significant.” Pls. Resp. at 15. Notably, Plaintiffs do not cite anything for this proposition. Plaintiffs reject Defendants’ argument that Plaintiffs should be able to point to their participation in “non-core programming” to demonstrate maturation, and say that this depends on “the subjective views of counsel about what kind of programming is
7

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sufficient to demonstrate rehabilitation and maturity for their release[.]” Id. at 16. But Plaintiffs’
counsel does the same thing, arguing that it is only core programming that matters, and that non-
core programming does not. Plaintiffs rely on Eagen’s and Washington’s deposition testimony,
discussed infra, to explain why core programming is important, but Eagen and Washington spoke
about the parole context – not about what is important to judges.
Further, the evidence put forth does not support Plaintiffs’ theory that judges are focused
on Plaintiffs’ completion of recommended core programs. Of the 139 Plaintiffs who have been
resentenced, only two have been resentenced to life without parole, and twenty-two have received
the maximum minimum sentence of forty years. Mandatory Juvenile Life Without Parole – Parole
Board Working Document. The transcript that Plaintiffs point to in order to show that “completion
of rehabilitative programs is often the only way an individual can objectively demonstrate their
maturity and rehabilitation,” Pls. Resp. at 16 – that of Henry Hill – undercuts their own argument.
The judge who resentenced Hill to a minimum term of thirty-four years and six months made no
mention of core programs; instead he observed that Hill had educated himself, had taken several
non-core courses, and developed a strong work ethic while incarcerated:
When [Hill] entered the prison system, he had third grade reading and math skills. Once incarcerated, he received remedial education for the first time. He learned to decode words with the help of a teacher. He studied the dictionary in his cell and learned to break down words into syllables. He failed the GED three times, but persevered and ultimately passed the test in 1986. In addition to completing his GED. He has also taken courses in basic writing, small business, and legal research. He’s also been a productive worker within the prison system. Over the years, he’s worked in the kitchen as a head cook, a unit porter, and in the laundry. In the work assignment evaluation dated April 5, 2017, the defendant was described as an excellent worker who does well without direct supervision and never complains when asked to do extra work. He has received vocational certificates for food . . .
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Hill Resentencing Tr., Ex. 7 to Pls. Resp., at 19 (Dkt. 274-7). Thus, Hill’s resentencing hardly establishes that barriers to core programing impact judges at resentencing.
Plaintiffs also cite the resentencing transcript for Damion Todd, and argue that the court extended Todd’s incarceration by two years for him to complete core programming. Pls. Resp. at 5. But Plaintiffs only include one page from the sentencing transcript as an exhibit, and this excerpt shows only that the prosecutor was arguing for an extra two years. See Todd Tr., Ex. 8 to Pls. Resp. (Dkt. 274-8) (“The People after reviewing everything feels that an appropriate sentence would be thirty years to sixty years on the first degree murder. That would give Mr. Rucker [sic, Todd] an extra almost two years in prison to get the programming that he hasn’t been eligible for to date.”). Defendants’ spreadsheet reflects that Todd was resentenced to a term of ten to thirty years; he was released on parole on May 15, 2018, a little more than a year after his March 29, 2017 resentencing.4
Thus, the facts do not support a finding that, at resentencing, Plaintiffs are being denied their meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation because they are unable to take core programming. Defendants are granted summary judgment as to this issue.
B. Parole Board Hearings
4 Plaintiffs point out that “nearly all” of the resentencings that have taken place so far are those for whom the prosecutor did not seek a life sentence. Pls. Resp. at 14. For individuals for whom prosecutors are seeking life without parole, Plaintiffs say demonstrating rehabilitation “could” mean the difference between a term of years sentence and another sentence of life without parole. Id. at 14-15. But this is mere speculation of what judges might consider; the Court is unwilling to find, based solely on Plaintiffs’ speculations, that the failure to receive core programming denies them the opportunity to show that they have matured and been rehabilitated. Plaintiffs’ argument that core programming would help prisoners avoid misconduct in prison, which would in turn affect their resentencing outcomes, Pls. Resp. at 15-16, is similarly speculative and attenuated.
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The Court now turns to the question of whether the denial of core programming affects Plaintiffs’ constitutional rights at the parole board hearings. Under Michigan’s resentencing scheme, Plaintiffs face either life without parole or a maximum sentence of sixty years. See Mich. Comp. Laws § 769.25a(4)(c). Thus, those sentenced to a term of years face a potential maximum of sixty years’ imprisonment, which Plaintiffs assert exceeds the life expectancy of the average Michigan prisoner. Without an opportunity to obtain release through parole, then, Michigan’s statutory scheme provides for a mandatory de facto life sentence.
A logical reading of Graham and Miller suggests that a mandatory term of years for a juvenile homicide offender that exceeds his or her lifespan violates the Eighth Amendment. “If a juvenile offender’s life sentence, while ostensibly labeled as one ‘with parole,’ is the functional equivalent of a life sentence without parole, then the State has denied that offender the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ that the Eighth Amendment demands.” Hayden v. Keller, No. 10-3123, 2015 WL 5773634, at *8 (E.D.N.C. Sept. 25, 2015); see also Maryland Restorative Justice Initiative v. Hogan, No. 16-1021, 2017 WL 467731, at *21 (D. Md. Feb. 3, 2017) (acknowledging that Hayden involved prisoners convicted of nonhomicide offenses, but finding its reasoning informative “in light of the promise in Graham and Montgomery that a meaningful opportunity for release extends to all juvenile offenders, except for those ‘whose crimes reflect permanent incorrigibility’”) (citing Montgomery, 136 S. Ct. at 734). Thus, although Defendants are correct that there is no right to parole generally, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979), these Plaintiffs are entitled to a parole hearing that provides them with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Graham, 560 U.S. at 75.
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The Court is unable to determine from the record before it whether Plaintiffs are currently denied such a meaningful opportunity at their parole hearings. The evidence presented does not make clear whether core programming is in fact required for Plaintiffs to be granted parole.
Defendants argue that that a lack of core programming does not harm Plaintiffs’ parole chances. So far, forty-nine Plaintiffs have been granted parole and nineteen have been discharged. Only four Plaintiffs who are parole eligible have been denied parole. Thus, 68 out of 72 Plaintiffs who received a decision from the parole board were granted parole. Defendants point out that this 94.44% success rate exceeds the general parole rate for individuals thought to have a “high” probability of parole based on their parole guideline score, which is 82%. See Mich. Dep’t of Corrections, Parole Board Member Totals 1/1/2018 – 7/1/2018, Ex. K to Defs. Mot.
Defendants contend that the parole board may direct a Plaintiff to complete certain programming before he or she can be released on parole, but the Board may also waive a core programming requirement. Defs. Mot. at 5-6. They rely on testimony from Eagen, who stated that “[w]e know it’s an issue that [Plaintiffs] haven’t been able to get into [core programming],” and that “I don’t think that it holds up a positive decision . . . not all of them have been in core programs, so it hasn’t been held against them.” Eagen Dep. at 76. Eagen also testified that the parole board has the discretion to waive core programming in any parole decision. Id. at 107. Defendants assert that fourteen of the paroled Plaintiffs had not completed any core programming, yet were still released on parole. Defs. Mot. at 6.
Defendants attach as an exhibit the decision resulting from Plaintiff Willie Servant’s parole interview, where he was denied release on parole. The Board stated the following as “substantial and compelling reasons for guideline departure”:
Having denied his guilt for years, P now admits his role yet continued to minimize his responsibility and shifts blame for his
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choices onto his codefendant. His level of insight and accountability are not commensurate with the gravity of his crime. Depart[.] Servant – Notice of Decision, Ex. B to Defs. Mot. The Board recommended that Servant (1) “Demonstrate responsible behavior by earning positive reports in any programs you may be involved in”; (2) “Demonstrate responsible behavior by avoiding situations which result in misconduct citations”; (3) “Demonstrate leadership qualities by participation in department sanctioned activities”; (4) “Demonstrate responsible behavior by earning good block or staff reports of conduct in the housing unit”; and (5) “Comply with any recommendation for psychological screening and/or therapeutic programming when referred.” Id. There is no indication here that any failure by Servant to complete core programming led to his denial of release.5 In response, Plaintiffs stress the importance of core programming and paint it as the sole key that will unlock the prison doors. They rely on testimony from Eagen and Defendant Heidi Washington, Director of MDOC. Eagen testified that “completion of a core program provides tools to a prisoner that will help in rehabilitation” and agreed that completion of the core programs would “demonstrate something positive toward rehabilitation[.]” Id. at 79-80. Washington also agreed that these are “valuable programs,” Washington Dep. at 34, and that “the reason you want to have people complete these programs before they see the Parole Board[] is to increase the likelihood of their parole, or at least not being denied or deferred because they haven’t completed this[,]” id. at 82. She agreed that it would “increase their likelihood of parole” and “increase their likelihood of success,” as the “whole reason for the program[] is to help them be successful on the outside.” Id. at 83.
5 Neither party has provided information regarding the Board’s decision to deny parole to the three other Plaintiffs.
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Plaintiffs also claim that “the parole board denies release to prisoners who have not
completed rehabilitative programming that the board and MDOC has recommended for them.”
Pls. Resp. at 12. As support, they cite an affidavit from Richard Stapleton, the former
Administrator for the Office of Legal Affairs for MDOC, who stated:
The Parole Board often denies release to prisoners who have not completed programs that are recommended to address assaultive behavior offenses. However, prisoners serving life sentences are excluded from many programming opportunities during their incarceration. Lifers are placed at the bottom priority on waiting lists for programming because they are not expected to be paroled and thus are routinely not offered programs to prepare them for release. When they are ultimately considered for parole release, a prisoner serving a life sentence is significantly disadvantaged by having been denied the opportunity to engage in programming activities. Stapleton Aff., Ex. 3 to Pls. Supp. Br. re 1/30/2013 Op. & Order, ¶ 22 (Dkt. 67-4).
Plaintiffs also note that Plaintiffs Christopher Wiley and Lorenzo Harrell were told by the
parole board that the Board would defer its decision while they completed the Violence Prevention
Program (“VPP”), a core program. Wiley Dep., Ex. 9 to Pls. Resp., at 7-8 (Dkt. 274-9); Harrell
Dep., Ex. 10 to Pls. Resp., at 6-7 (Dkt. 274-10). Wiley had his parole board interview on May 28,
2018, completed VPP, and was released on parole on January 8, 2019. Wiley Dep. at 7; Parole
Board Grid, Ex. A to Defs. Reply (Dkt. 277-2). Harrell similarly enrolled in VPP following his
parole interview, and was granted parole with a release date of February 12, 2019. Harrell Dep.
at 7; Parole Board Grid.
It is not clear to this Court whether or how Defendants’ policy to deny core programming
to individuals without an ERD/PBJ date affected the Plaintiffs who were released on parole.
Plaintiffs claim that there is “no evidence that core programming was and remained recommended
for” the class members who were released on parole without having completed any core programs.
Pls. Resp. at 17 (emphasis in original). The Court agrees. It appears that core programming is a 13

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requirement to be released on parole for at least some Plaintiffs, as both Wiley and Harrell had their parole decisions deferred for months while they completed violence-prevention core programs. Further, Richard Stapleton has stated that the parole board often denies release to prisoners who have not completed core programs intended to address assaultive behavior, which seems to comport with the decisions to defer Wiley and Harrell’s releases.
On the other hand, it may be that the Plaintiffs who were released on parole did have unfulfilled recommendations for core programs that the parole board decided, in its discretion, to waive or otherwise overlook. Perhaps the Plaintiffs released on parole were able to demonstrate their maturity and rehabilitation in other ways. But without additional information about the core programs taken by Plaintiffs who were released on parole, the Court cannot determine whether the denial of core programs to Plaintiffs without an ERD/PBJ date affects their opportunity to obtain release on parole.
Even if the Court were to assume that core programming is required for an individual to be released on parole when that individual has a recommendation for core programming, the significance of such an assumption is similarly unclear. Would Defendants’ policy of denying core programming to individuals without an ERD/PBJ date then deprive Plaintiffs of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, in violation of the Eighth Amendment? Neither party adequately explains the consequences of a denial of parole. The four Plaintiffs who were denied parole were provided an opportunity to re-appear before the parole board, anywhere from twelve months to five years after the initial parole decision. The parties do not explain how the parole board decided when to allow the individuals to re-appear, nor whether an individual denied parole is always given a chance to try again. If a sixty-year-old Plaintiff is denied parole based on a failure to complete core programs, and is instructed to reappear
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before the parole board in five years, it may be that such a Plaintiff would be deprived of his or

her only meaningful opportunity to obtain release. On the other hand, a Plaintiff who is forty years

old and is instructed to come before the parole board again in six months may have been denied

the earliest opportunity to obtain release, but not his or her only opportunity. The parties do not

address this issue.

For these reasons, the Court cannot determine whether the denial of core programming to

Plaintiffs deprives them of the meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation at a parole hearing. Defendants’ motion for summary judgment is

denied as to the issue of parole.

IV. CONCLUSION

For the reasons provided, Defendants’ motion for summary judgment (Dkt. 267) is granted

in part and denied in part. The Court will conduct a telephonic status conference on July 22, 2019

at 4:00 p.m. to discuss next steps in this case.

SO ORDERED.

Dated: July 12, 2019 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

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 Case 2:10-cv-14568-MAG-RSW ECF No. 316 filed 02/27/20 PageID.6773 Page 1 of 79

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, KEITH MAXEY, GIOVANNI CASPER, JEAN CARLOS CINTRON, NICOLE DUPURE, DONTEZ TILLMAN, DEON HAYNES, LONNELL HAYWOOD, AND EFRAN PAREDES, individually and on behalf of all those similarly situated,

Case No. 10-cv-14568 Hon. Mark. A Goldsmith Mag. J. R. Steven Whalen CLASS ACTION

Plaintiffs,

vs.

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, HEIDI E. WASHINGTON, in her official and individual capacity as Director of the Michigan Department of Corrections, MICHAEL EAGEN, in his official and individual capacity as Chair of the Michigan Parole Board, and DANA NESSEL, in her official capacity as Attorney General of the State of Michigan,

Defendants. /

FOURTH AMENDED COMPLAINT

DEBORAH LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com

SCOTT A. MERTENS (P60069) SARA E. TRUDGEON (P82155)Michigan Dep’t of Attorney General P.O. Box 30736

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STEVEN M. WATT
BRANDON J. BUSKEY American Civil Liberties Union
Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870 swatt@aclu.org bbuskey@aclu.org

Lansing, MI 48909 517.335.3055 mertenss@michigan.gov trudgeons@michigan.gov
Attorneys for Defendants

DANIEL S. KOROBKIN (P72842) American Civil Liberties Union Fund
of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824 dkorobkin@aclumich.org

Attorneys for Plaintiffs /

NOW COME Plaintiffs, by and through their counsel, and for their Fourth Amended Complaint, state as follows:

INTRODUCTION 1. This action for declaratory and injunctive relief is brought under 42 U.S.C. § 1983 to enforce Plaintiffs’ rights under the United States Constitution and customary international law. 2. Plaintiffs are individuals who were charged and tried as adults for crimes committed when they were children under eighteen years of age and
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punished with a mandatory sentence of life imprisonment. Based on their convictions, the Michigan parole statute, M.C.L. § 791.234, deprived Plaintiffs of a meaningful opportunity to obtain their release.
3. On November 17, 2010, Plaintiffs filed this action seeking a declaration that M.C.L. § 791.234 was unconstitutional insofar as it excluded children under 18 years of age convicted of first-degree homicide offenses and thereby denied Plaintiffs of a meaningful opportunity to obtain their release.
4. On January 30, 2013, this Court issued a declaratory judgment, ruling that M.C.L. § 791.234 was unconstitutional because it deprived children convicted of first-degree homicide offenses of any meaningful opportunity to obtain their release.
5. On August 12, 2013, this Court clarified the scope of its declaratory judgment, holding that every person convicted of first-degree homicide offense in the State of Michigan when they were under 18 years of age and sentenced to life imprisonment for that offense shall be immediately parole-eligible.
6. Over seven years ago, the U.S. Supreme Court ruled in Miller v. Alabama, 567 U.S. 460 (2012), that states cannot punish children who commit homicide offenses when they are under 18 years of age with a mandatory sentence of life imprisonment and instead must provide them with a meaningful opportunity to obtain their release based on demonstrated maturity and rehabilitation. And,
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over three years ago in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court ruled that that Miller applies retroactively, establishing that states must provide those individuals with meaningful opportunities for release – except in the rarest of cases where the state demonstrates that they “exhibit[] such irretrievable depravity that rehabilitation is impossible.” Id. at 733.
7. Despite these rulings, Plaintiffs continue to be treated as if they were being punished with non-parolable life sentences, thus depriving them of their constitutional right to a meaningful opportunity for release based on their demonstrated maturity and rehabilitation. In particular, Plaintiffs continue to be imprisoned as if they are serving non-parolable life sentences. They are therefore deprived of rehabilitative in-prison programming necessary to demonstrate their maturation and rehabilitation and thereby to obtain their release.
8. In 2014, in response to Miller and Montgomery, Michigan enacted M.C.L. § 769.25 and 769.25a, which provide a scheme for the state to resentence individuals who were serving mandatory life sentences for homicide offenses committed when they were under 18 years of age. The legislation provides that the state must resentence these individuals to a term-of-years sentence or to life in prison without the possibility of parole. Because neither punishment affords Plaintiffs a meaningful opportunity to obtain their release based on their
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demonstrated maturity and rehabilitation, the statute violates Plaintiffs’ constitutional rights.
9. Specifically, M.C.L. § 769.25 and 769.25a: a. Allows the state to impose a life-without-parole sentence; b. Requires that the state impose a minimum punishment of 25 to 40 years in prison without: (i) requiring consideration at sentencing of the mitigating factors of the child’s age at the time of their offense, the hallmark features of youth, a child’s lesser degree of culpability and their unique capacity for rehabilitation as compared to adults; (ii) providing those individuals with a meaningful opportunity to obtain their release based on their maturation and rehabilitation before this time; c. Otherwise requires that the state punish Plaintiffs and others similarly situated with a sentence of up to 60 years in prison without providing them with a meaningful opportunity to obtain their release based on their demonstrated maturity and rehabilitation before this time.
10. In addition, M.C.L. § 769.25 and 769.25a, (i) retroactively allows the state to deprive individuals resentenced to a term-of-years of the good-time and/or
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disciplinary credits that they were entitled to accumulate from the time of their offense; and (ii) fails to provide guidelines and timelines for the state to review and resentence individuals currently serving unconstitutional, non-parolable life sentences and their treatment as non-parolable “lifers” pending that review and resentencing.
11. Plaintiffs seek a declaration that Michigan’s laws, policies and practices, insofar as they mandate that Plaintiffs serve life imprisonment without a meaningful opportunity to obtain their release, violate the Eighth and Fourteenth Amendments of the U.S. Constitution and customary international law.
12. Plaintiffs also seek an order that Defendants provide them with a meaningful opportunity to obtain their release based on their demonstrated maturity and rehabilitation.
13. Plaintiffs do not challenge their judgments of conviction, do not seek to invalidate their life sentences, and do not seek an order from this Court ordering their release.
14. On April 9, 2018, this Court granted Plaintiffs’ motions for class certification and declaratory and permanent injunctive relief on Plaintiffs’ Count V, ruling that M.C.L. § 769.25a(6) constituted an unconstitutional violation of the Ex Post Facto Clause of the U.S. Constitution, Art. I § 10. Hill v. Snyder, 308 F. Supp. 3d 893 (E.D. Mich. 2018), aff’d 900 F.3d 260 (6th Cir. 2018).
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15. On April 9, 2018, this Court also denied Defendants’ motion for summary judgment as to Plaintiffs’ Count VI. Id. at 912.
16. On July 12, 2019, this Court again denied, in part, Defendants’ renewed motion for summary judgment as to Plaintiffs’ Count VI. Hill v. Whitmer, 2019 WL 3067977 (E.D. Mich. July 12, 2019). 10.
17. On August 26, 2019, this Court granted Plaintiffs’ request to file a motion to amend their complaint to address the unreasonable delay in providing Plaintiffs with any opportunity for resentencing, and depriving the majority of the Plaintiff class of the opportunity for release because of such unreasonable delays in resentencings. (Order, Dkt. 286, Pg ID 4545). Plaintiffs plead the facts supporting Plaintiffs’ claims as to proposed Count VIII below.
18. Plaintiffs acknowledge judgment has been entered on Counts I-V and Count VII, and retain facts and legal claims as to these counts solely to preserve issues for potential appellate review.
JURISDICTION AND VENUE 19. 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. § 1343(a), which authorizes federal courts to hear civil rights cases.
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20. Venue is proper in this Court, as the Defendants conduct their business across the state, including in the Eastern District of Michigan, and some of the named Plaintiffs are incarcerated in the Eastern District of Michigan.
PARTIES Plaintiffs 21. Plaintiff Henry Hill was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Saginaw County, Michigan, for crimes he committed when he was sixteen years old. Although the state prosecutor initially sought to reimpose Mr. Hill’s life-without-parole sentence, on May 4, 2017, Mr. Hill was instead punished with a term-of-years sentence. After the state credited Mr. Hill for his good-time and disciplinary credits he became immediately parole-eligible. On October 31, 2017, Mr. Hill was released on parole. On June 6, 2018, Mr. Hill was discharged from parole after serving thirty-four years in adult prison. 22. Plaintiff Jemal Tipton was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes he committed when he was seventeen years old. Mr. Tipton has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Tipton is imprisoned at the Macomb Correctional Facility in Macomb County, Michigan, where he is
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assigned to the lowest custody level possible for an individual serving this sentence. To date, Mr. Tipton has served thirty-two years in adult prison. On September 27, 2019, Mr. Tipton was resentenced to a term-of-years. Defendant MDOC is still to calculate Mr. Tipton’s earned good-time and disciplinary credits.
23. Plaintiff Damion Todd was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for crimes committed when he was seventeen years old. On March 29, 2017, Mr. Todd was resentenced to a term-of-years which made him immediately paroleeligible. On May 15, 2018, Mr. Todd was released on parole after serving thirtytwo years in adult prison.
24. Plaintiff Bobby Hines was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for crimes he committed when he was fifteen years old. On March 16, 2017, Mr. Hines was resentenced to a term-of-years sentence, which made him immediately parole eligible. On September 12, 2017, Mr. Hines was released on parole after serving twenty-eight years in adult prison.
25. Plaintiff Kevin Boyd was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for a crime he committed when he was sixteen years old. At his resentencing hearing the state prosecutor sought to reimpose Mr. Boyd’s life-without-parole
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sentence. On May 15, 2019, Mr. Boyd was resentenced to a term-of-years and became immediately parole-eligible. On June 24, 2019, Mr. Boyd was reviewed by the Michigan Parole Board after having served twenty-four years in adult prison. On or about October 15, 2019, Mr. Boyd was notified that he will be released on parole on January 7, 2020.
26. Plaintiff Bosie Smith was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Washtenaw County, Michigan, for a crime he committed when he was sixteen years old. The state prosecutor initially sought to reimpose Mr. Smith’s life-without-parole sentence. On March 22, 2017, Mr. Smith was resentenced to a term-of-years sentence and was released on parole on May 8, 2018 after serving twenty-six years in adult prison.
27. Plaintiff Jennifer Pruitt was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes she committed when she was sixteen years old. On March 2, 2017 Ms. Pruitt was resentenced to a term-of-years sentence. Ms. Pruitt became paroleeligible after computation of her good-time and disciplinary credits, and was released on parole on October 16, 2018 after serving twenty-five years in adult prison.
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28. Plaintiff Matthew Bentley was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Huron County, Michigan, for crimes he committed when he was fourteen years old. The state prosecutor initially sought to reimpose Mr. Bentley’s life-without-parole sentence but missed the statutory deadline to file the relevant notice. Instead, on September 25, 2017, Mr. Bentley was resentenced to a term-of-years sentence. Mr. Bentley remains imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Mr. Bentley has served twenty-one years in adult prison.
29. Plaintiff Keith Maxey was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for crimes he committed when he was sixteen years old. Mr. Maxey has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Maxey is imprisoned at the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Mr. Maxey has served eleven years in adult prison, and has no scheduled date for his resentencing.
30. Plaintiff Giovanni Casper was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Kent County, Michigan, for
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crimes he committed when he was seventeen years old. On September 30, 2016, Mr. Casper was resentenced to a term-of-years sentence. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Casper is imprisoned in the G. Robert Cotton Correctional Facility in Jackson County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Mr. Casper has served twelve years in adult prison.
31. Plaintiff Jean Carlos Cintron was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for crimes he committed when he was sixteen years old. On May 3, 2018, Mr. Cintron was resentenced to a term-of-years. He is currently in the custody of the Michigan Department of Corrections. Plaintiff Cintron is imprisoned in the Ionia Correctional Facility in Ionia County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Mr. Cintron has served ten years in adult prison.
32. Plaintiff Nicole Dupure was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Macomb County, Michigan, for crimes she committed when she was seventeen years old. Ms. Dupure has never been afforded a meaningful opportunity to obtain her release. She is currently in the custody of the Michigan Department of Corrections. Ms. Dupure
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is imprisoned in the Women’s Huron Valley Correctional Facility in Washtenaw County, Michigan, where she is assigned to the lowest custody level possible for an individual serving this sentence. State prosecutors are seeking to reimpose her life-without-parole sentence but have not yet scheduled a date for her resentencing hearing. Ms. Dupure has served thirteen years in adult prison.
33. Plaintiff Dontez Tillman was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Oakland County, Michigan, for a crime he committed when he was fourteen years old. Following the U.S. Supreme Court decision in Miller v. Alabama, Mr. Tillman was resentenced to serve between 32.5 and 60 years in prison. Mr. Tillman has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Tillman is imprisoned in the Thumb Correctional Facility in Lapeer County, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. Mr. Tillman has served ten years in adult prison.
34. Plaintiff Deon Haynes was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Saginaw County, Michigan, for a crime he committed when he was sixteen years old. Mr. Haynes has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Haynes is imprisoned in
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the Lakeland Correctional Facility in Coldwater, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. State prosecutors are seeking to reimpose his life-without-parole sentence but have not yet scheduled a date for his resentencing hearing. Mr. Haynes has served nearly 28 years in adult prison.
35. Plaintiff Lonnell Haywood was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Wayne County, Michigan, for a crime he committed when he was sixteen years old. Mr. Haywood has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Haywood is imprisoned in the Chippewa Correctional Facility in Kincheloe, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. State prosecutors are seeking to reimpose his lifewithout-parole sentence but have not yet scheduled a date for his resentencing hearing. Mr. Haywood has served over 23 years in adult prison.
36. Plaintiff Efran Paredes was charged, convicted and sentenced as an adult to a mandatory sentence of life imprisonment in Berrien County, Michigan, for a crime he committed when he was fifteen years old. Mr. Paredes has never been afforded a meaningful opportunity to obtain his release. He is currently in the custody of the Michigan Department of Corrections. Mr. Paredes is imprisoned in
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the Lakeland Correctional Facility in Coldwater, Michigan, where he is assigned to the lowest custody level possible for an individual serving this sentence. State prosecutors are seeking to reimpose his life-without-parole sentence but have not yet scheduled a date for his resentencing hearing. Mr. Paredes has served nearly 31 years in adult prison.
Defendants 37. Defendant Gretchen Whitmer is Governor of the State of Michigan. Defendant Whitmer is invested with executive power pursuant to Art. V § 1 of the Michigan Constitution and is responsible for ensuring compliance with the laws of the State of Michigan. Governor Whitmer is sued in her official capacity. 38. Defendant Heidi E. Washington is Director of the Michigan Department of Corrections. Defendant Washington has authority over the Michigan Parole Board pursuant to M.C.L. § 791.231a, which determines which Michigan prisoners are eligible for release on parole. Defendant Washington also has authority over policies and placements regarding programming for prisoners. She is sued in her official capacity and in her individual capacity. 39. Defendant Michael Eagen is Chair of the Michigan Parole Board. Under M.C.L. § 791.234, the Parole Board determines which prisoners, under their jurisdiction, to release on parole. Defendant Eagen is sued in his official capacity.
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40. Defendant Dana Nessel is Attorney General of the State of Michigan. As Attorney General Defendant Nessel has supervisory power over prosecuting attorneys throughout Michigan. She also has the power to intervene in and appear for the people of the state in any state court in which the people of the state are a party, and to take any action that a party to the case may take. Defendant Nessel is sued in her official capacity
BACKGROUND FACTUAL ALLEGATIONS Michigan’s Former Sentencing Framework
41. Since abolishing capital punishment, the harshest punishment the State of Michigan can impose against any individual for any crime or series of crimes is a life sentence without the possibility of parole.
42. Michigan’s Penal Code sets forth the punishments for crimes categorized as first-degree homicides, which include premeditated murder, felony murder, and murder of a peace officer. M.C.L. § 750.316.
43. Michigan’s Code of Criminal Procedure provides that a person who aids or abets a murder is punishable as if that person had directly committed the offense. M.C.L. § 767.39.
44. The mandatory punishment for first-degree murder, whether it be premeditated, felony murder or aiding and abetting a murder, is imprisonment for life. M.C.L. § 750.316.
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45. Plaintiffs’ judgments of conviction and sentence state that they were sentenced to imprisonment for life for a conviction under M.C.L. § 750.316.
46. Before 2013, this mandatory punishment applied to individuals, including Plaintiffs, who committed offenses when they were under 18 years of age.
47. Michigan law grants the Michigan Department of Corrections Parole Board (“Michigan Parole Board”) the authority to release individuals sentenced to life if a prisoner meets certain specified criteria. M.C.L. § 791.234.
48. Since 2008, the Michigan Parole Board has had the authority to grant release to individuals sentenced to life imprisonment after serving 15 years except for individuals serving a life sentence for a conviction under M.C.L. § 750.316.
49. Before 2013, Plaintiffs were excluded from ever being considered for release on parole because of their mandatory convictions and life sentences imposed under M.C.L. § 750.316.
50. On January 30, 2013, this court struck down as unconstitutional M.C.L. § 750.316 as it applied to children convicted of first-degree homicide offences.
51. Defendants continued to apply M.C.L. § 791.234(6) to exclude Plaintiffs, and all youth convicted of first degree homicide offences, from the
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Michigan Parole Board’s jurisdiction, until passage of M.C.L. § 769.25 and M.C.L. § 769.25a, enacted in 2014.
Punishment of Children in Michigan 52. Over 360 individuals in Michigan were punished with mandatory life sentences for crimes they committed as children, without any meaningful opportunity to obtain their release based upon their demonstrated maturation and rehabilitation. Michigan is one of only three states that allows the state to impose life-without-parole sentences on children as young as 14 for all homicide offences including felony murder. 53. Michigan, Pennsylvania, Texas, Florida and Louisiana accounted for two-thirds of all such life-without-parole sentences in the United States. Michigan had the second highest number in the country. 54. Since Miller, Texas and Florida have abolished life-without-parole sentences for children. Pennsylvania has abolished the sentence for felony murder, and has committed not to seek life-without-parole sentences for those children who it convicted of a first-degree premeditated homicide offense and resentences. Louisiana and Michigan remain the only states that continue to impose the sentence at any significant level. 55. Thirty-seven states now either prohibit life-without-parole sentences for children or have not imposed the sentence since Miller.
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56. Since Miller, Michigan has resentenced over 150 Plaintiffs. State prosecutors have not sought to reimpose life-without-parole sentences for the majority of these individuals, and Michigan state courts have only reimposed the sentence on 10 of them. The majority of these sentences have been appealed and are pending before Michigan appellate courts.
The Current Michigan Sentencing Scheme 57. In January 2013, this Court granted summary judgment in favor of Plaintiffs on their First Amended Complaint. The Court declared M.C.L. § 791.234(6) unconstitutional as applied to Plaintiffs and all others serving life sentences for first-degree homicide offenses committed when they were under 18 years of age. 58. In November 2013, the Court ordered Defendants to create an administrative structure to allow persons who committed their offenses when they were less than 18 years of age to be considered for release on parole. Defendants appealed and this ruling was stayed. 59. On March 4, 2014, Michigan enacted M.C.L. §§ 769.25 and 769.25a. These statutes provide that Plaintiffs and similarly-situated individuals are subject to resentencing, including the possibility of imposition of a life-without-parole sentence in limited circumstances.
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60. The legislation does not establish a time frame for when these individuals must be resentenced.
61. Under the new legislation, prosecutors may seek a life-without-parole sentence for persons who commit certain homicide offenses when they are under 18 years of age by filing a motion in the state trial court. The legislation required that any motion must be filed within 180-days of the U.S. Supreme Court’s mandate in Montgomery.
62. If prosecutors do not file such a motion, or if the court chooses not to impose a life-without-parole sentence, the resentencing court must sentence the individual to a term-of-years with a minimum sentence of between 25 and 40 years imprisonment, and a maximum sentence of no less than 60 years.
63. Contrary to Miller and Montgomery that “appropriate occasions” for sentencing youth to life without parole will be “uncommon” or “rare.” Miller, 567 U.S. at 479; Montgomery, 136 S. Ct. at 733-94. See also Tatum v. Arizona, 137 S. Ct. 11; 196 L. Ed 284 (2016). Yet, Michigan prosecutors filed motions seeking to reimpose life-without-parole sentences on the majority of the 363 individuals whose mandatory life-without-parole sentences were vacated by Montgomery.
64. Prosecutors in Berrien, Macomb, Muskegon, Genesee and Kent counties initially filed motions seeking to reimpose the life-without-parole sentence on every child who Michigan had initially punished with a mandatory life
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sentence, and Oakland county prosecutors sought to reimpose it on all but four of the 48 individuals who had previously been sentenced to a mandatory life sentence in that county.
65. The filing of these motions placed Plaintiffs in legal limbo: Plaintiffs’ original life-without-parole sentences were vacated by Miller/Montgomery in 2016, but no date has been set for the majority of their resentencing hearings.
66. Prosecutors, including Defendant Attorney General as head prosecutor, filed motions seeking to impose life sentences on 254 of the total 363 class members. They filed these motions over three years ago, but approximately 196 Plaintiff class members have yet to be resentenced.
67. Pending their resentencing hearings, Defendant Michigan Department of Corrections (“MDOC”) refuses to provide Plaintiff class members with either core or other rehabilitative programming. Nearly four years after the U.S. Supreme Court vacated their life sentences as cruel and unusual punishment and mandated resentencing, Defendant MDOC continues to treat half of the Plaintiff class members as if they are serving non-parolable life sentences, resulting in restrictions to their custody levels, deprivation of rehabilitative and other in-prison programming, education and job entitlements necessary for Plaintiff class members to demonstrate their maturation and rehabilitation and thereby to secure their release. Prosecutors are causing delays in resentencing for a number of reasons,
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including to gain intentional strategic or tactical advantage, because of overcrowded courts, or because of negligence.
68. Prosecutors also exploit Plaintiff class members’ carceral limbo to coerce them into sentencing plea agreements whereby Plaintiffs “agree” to unconstitutional term-of-years sentences that the state could not otherwise impose.
69. Over 130 Plaintiff class members who have not yet been resentenced are – or would be – entitled to the benefit of this Court’s 2018 ruling on Plaintiffs’ Count V (Ex Post Facto Clause of the U.S. Constitution, Art. I § 10) which could make them immediately eligible for release on parole if they are resentenced to a term-of-years sentence. After they are resentenced, some Plaintiff class members with accumulated good-time and disciplinary credits will even have served sufficient time in prison that they will have served their maximum sentence and be immediately eligible for release on the day that they are resentenced.
70. At least 10 Plaintiff class members have already served well over 40 years in prison and if resentenced to a term-of-years sentence (even if the highest term is imposed) would be immediately parole-eligible. The eldest of these class members is over sixty-five years old.
71. To date, the majority of Plaintiff class members for whom prosecutors sought to reimpose life-without-parole sentences were instead given term-of-year sentences.
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72. To date, over 90% of those Plaintiff class members who have been reviewed by the Michigan Parole Board have been released on parole.
73. Seven counties have yet to hold any resentencing hearings and three other counties have resentenced less than 25% of the Plaintiff class members convicted in those counties since Montgomery. In Oakland County, 32 Plaintiff class members have yet to be resentenced, and Wayne County has yet to resentence 56 Plaintiff class members.
74. M.C.L. § 769.25a provides that resentencing hearings must occur in the following order of priority:
(5) Resentencing hearings under subsection (4) shall be held in the following order of priority:
(a) Cases involving defendants who have served 20 or more years of imprisonment shall be held first.
(b) Cases in which the prosecuting attorney has filed a motion requesting a sentence of imprisonment for life without the possibility of parole shall be held after cases described in subdivision (a) are held.
(c) Cases other than those described in subdivisions (a) and (b) shall be held after the cases described in subdivisions (a) and (b) are held. M.C.L. § 769.25a(5)(a)-(c). These requirements are not being followed; class members who have served less than 20 years have been resentenced, while class members for whom prosecutors are seeking life-without-parole sentences still await resentencing.
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75. Plaintiffs’ sentences were all vacated as unconstitutional punishment in 2016, yet more than four years later, 175 of them are still waiting to be resentenced; at least 70 of whom have served over twenty years and are eligible for good-time and disciplinary credits that would make them immediately paroleeligible if they were resentenced to a term-of-years.
76. For those who would not be immediately eligible, the continued delay of their resentencing subjects them to a ‘carceral limbo’ in which they are unable to access programming, are denied rehabilitative opportunities and unable to plan for their future.
77. Prosecutors are in large part responsible for the delays in Plaintiffs’ resentencings. Following the Supreme Court’s decision in Miller, Michigan enacted M.C.L. § 769.25a, providing in part that, should Miller be declared retroactive (as it was in Montgomery), county prosecutors “shall provide” within 30 days a list of all prisoners in their jurisdictions to which the Miller-ruling applied to the chief circuit judge. M.C.L. § 769.25a. The law vested the prosecutors with discretion to seek: (1) resentencing of prisoners to life without the possibility of parole by filing a petition to impose such a sentence within 180 days of the enactment of the legislation. M.C.L. § 769.25a(4)(b); or (2) a term-of-years sentence. M.C.L. § 769.25a(4)(c).
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78. Pursuant to M.C.L. § 769.25a over a dozen prosecutors in Saginaw, Berrien, Genesee, Kalamazoo, Kent, Macomb, Muskegon and Oakland counties sought life-without-parole sentences for the vast majority of former juvenile lifers in those counties. They did so despite the U.S. Supreme Court’s repeated admonitions that life-without-parole sentences are unconstitutional “for all but the rarest of children, those whose crimes reflect irreparable corruption,” Miller, 132 S. Ct. at 2469; that only those children who demonstrate “permanent incorrigibility” may be the subject of a life-without-parole sentence, Montgomery, 136 S. Ct. 718, 726, 733-34 (2016); and that all but the very rare and uncommon juvenile offender who is permanently incorrigible must be given meaningful and realistic opportunities for release, Tatum v. Arizona, 137 S. Ct. 11 (Mem) (2016). In doing so, these prosecutors failed to properly exercise, or abused, their discretion under M.C.L. § 769.25a and thus set in motion the delays in resentencings that exist to this day.
79. The more than four-year delay in resentencing Plaintiffs is unreasonable, and has been exacerbated by Prosecutors’ failure to mitigate the delays or to alleviate them. Prosecutors also contributed to the unreasonable delay in Plaintiffs’ resentencings by their violation of the resentencing statute which established a mandatory order of priority for resentencings. M.C.L. § 769.25a(5). After seeking life-without-parole sentences, the resentencing statute requires that
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prosecutors next seek the resentencing of those who have served more than 20 years. Id. Instead, prosecutors next sought to resentence class members who have served less than 20 years.
80. The delays in resentencing are greater in some counties. Some counties have resentenced all Plaintiffs resident there, while seven counties have conducted no resentencings. Others have only resentenced very few resident Plaintiffs: Kalamazoo (14%) Berrien (30%), Oakland (35%), Macomb (40%), and Shiawassee (25%).
81. Wayne County has resentenced 64%, however, because they have the largest number of individuals entitled to resentencing, 50 Plaintiffs have yet to be resentenced in Wayne County.
82. Plaintiffs have suffered prejudice as a result of the unreasonable delay in their resentencings. For individuals who are resentenced to a term-of-years sentence, there is no meaningful opportunity for them to obtain their release until they have served the minimum sentence in its entirety. After the minimum sentence has been served, parole-eligibility and release-on-parole determinations are governed by M.C.L. §§ 791.231-791.246, the same procedure applicable for adult prisoners.
83. The parole review process does not require the Michigan Parole Board to consider the age of the offender at the time they committed their offense as a
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mitigating factor, nor any of the Miller factors in making release-on-parole determinations. Consideration of post-crime maturity and rehabilitation are not prioritized by the Board over other factors in considering Plaintiffs’ suitability for release on parole.
84. On August 5, 2015, Plaintiff Tillman was resentenced under M.C.L. § 769.25 to a term of imprisonment of thirty-two and a half to sixty years. This sentence means that Mr. Tillman will only become parole-eligible at the age of forty-six and a half. The sentence also does not take into consideration Mr. Tillman’s age and lesser culpability at the time he committed the offense nor his post-crime growth, maturation, or rehabilitation.
85. Plaintiffs remain in Defendant MDOC’s custody serving the same mandatory sentences of life-imprisonment imposed following their convictions, deprived of rehabilitative and other programming, and without any meaningful opportunities for release in sight. Plaintiffs’ resentencing hearings have been unnecessarily delayed and Plaintiffs have not been afforded any other meaningful opportunity to obtain their release based on an assessment of their age and reduced culpability at the time of their offenses and their unique capacity for change, maturation and rehabilitation as compared to adult offenders.
86. While they are incarcerated, Defendant MDOC continues to deny Plaintiffs in-prison programming necessary to demonstrate their maturation and
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rehabilitation, including programming specifically recommended in their sentencing reports as a condition of their future release on parole, such as substance abuse, violence prevention, anger management and skill based rehabilitative programs. Defendant MDOC denies Plaintiffs this programing based on Defendant’s continued consideration of them as serving life-without-parole sentences.
GENERAL FACTUAL ALLEGATIONS 87. None of the Plaintiffs who have not been resentenced have been considered for release on parole. Nor has Michigan provided Plaintiffs with any other meaningful opportunity to obtain their release that takes into consideration Plaintiffs’ child status and lesser culpability as compared to adults when they committed their offenses, and their demonstrated maturity and rehabilitation since that time. 88. Plaintiffs did not have the same maturity and sense of responsibility as adults when they committed their offenses. 89. The State of Michigan recognizes this relative lack of maturity and responsibility based on their age in other areas of the law by prohibiting persons below 18 years of age from voting, entering into valid contracts, serving on juries, joining the armed forces, smoking tobacco, marrying without parental consent,
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leaving school, working full time, or applying for a driver’s license without first undergoing youth-specific driver education classes.
90. Plaintiffs were more vulnerable to adult influences and peer pressure than adults.
91. Plaintiffs were more likely to act impetuously without regard for consequences as compared to adults.
92. Plaintiffs have a greater capacity for change, growth and rehabilitation than adults.
93. Plaintiffs’ ineligibility for earned good- time and disciplinary credits renders immaterial maturity, good behavior, character and rehabilitation for purposes of considering them for release on parole.
94. The sentencing schemes under which Plaintiffs are being punished do not provide Plaintiffs with a meaningful opportunity to obtain their release that allows them to demonstrate their maturation and rehabilitation.
95. Michigan continues to imprison Plaintiffs without providing them with a meaningful opportunity to obtain their release once they have demonstrated their maturation and rehabilitation. In particular Michigan does not have procedures in place to meaningfully determine whether Plaintiffs’ criminal conduct was due to transient immaturity and whether Plaintiffs have matured and been rehabilitated.
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96. Plaintiffs’ ages at the time they committed their offenses means that they will be punished more severely than adults who may have been punished with the same sentence because they will serve more years and a greater percentage of their lives in prison than adult offenders.
97. There is no legitimate penological justification for punishing Plaintiffs without also affording them a meaningful opportunity to obtain their release based upon their demonstrated maturation and rehabilitation because such a denial fails to serve any of the recognized penal objectives.
98. Michigan accounts for over 15% of all persons in the United States who were subjected to life-without-parole sentences for crimes committed when they were under 18 years of age and 40% of individuals serving life-without-parole sentences in those states that continue to allow the sentence.
99. Michigan is in the minority of states that continues to impose lifewithout-parole sentences for persons who commit their offenses when they are under 18 years of age.
100. Of the five states responsible for nearly two-thirds of individuals serving life-without-parole sentences for crimes they committed when they were less than 18 years of age, only Michigan and Louisiana have failed to amend their laws or practices to restrict the imposition of such life-without-parole sentences.
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101. Currently, fewer than 15 states continue to allow life-without-parole sentences to be imposed on persons below 18 years of age in the manner that Michigan does.
102. The United States is the only country in the world that authorizes and imposes life-without-possibility-of-release sentences on persons who commit offenses when they were below 18 years of age.
103. The United Nations Human Rights Committee identified this practice as non-compliant with Article 24(1) of the International Covenant on Civil and Political Rights (“ICCPR”).
104. The United States is a party to the ICCPR, but has reserved the right to treat juveniles as adults only in “exceptional circumstances.”
105. Michigan’s laws do not constitute such an exceptional circumstance, as they presumptively treat all persons less than 18 years of age involved in homicide offenses as adults and continue to detain such persons as if they were adults for such involvement without affording them a meaningful opportunity to obtain their release based on their demonstrated maturation and rehabilitation.
106. In December 2006, the United Nations General Assembly passed a resolution, 185-1 (United States), calling upon all nation states to abolish life imprisonment without possibility of release sentences for those persons who commit offenses when they are below 18 years of age.
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107. In 2008, the United Nations Committee on the Elimination of Racial Discrimination in its consideration of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination found that the practice of sentencing persons who commit offenses when they are below 18 years of age to life without possibility of release violated key provisions of the treaty, and called upon the United States to end the practice and to review the situation of prisoners currently serving such sentences.
108. Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990), ratified by every member state of the United Nations except the United States, explicitly prohibits the imposition of “life imprisonment without the possibility of release … for offenses committed by persons below 18 years of age.”
109. In Michigan, 363 individuals were serving sentences of mandatory life imprisonment for first-degree homicide convictions for offenses they committed when they were under 18 years of age; nearly 200 Plaintiffs continue to serve this sentence without a meaningful opportunity to obtain their release based on their demonstrated maturity and rehabilitation and, as Defendants do not consider any of them parole-eligible, none of them has been afforded a meaningful opportunity to obtain their release on parole.
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110. Over 130 Plaintiffs have served sufficient time to be immediately parole-eligible if they are resentenced to a term-of-years sentence.
111. None of the Plaintiffs waiting to be resentenced has had an opportunity for parole review since this Court’s 2018 ruling on Count V (Ex Post Facto Clause of the U.S. Constitution, Art. I § 10). Nor has Michigan provided any of these Plaintiffs with any meaningful opportunities to obtain their release on parole or at a resentencing hearing under the legislation since the Montgomery decision, over three and a half years ago.
112. Of the Plaintiffs who have been resentenced, and who have been considered by the Michigan Parole Board for release on parole, over 90% have been released on parole at their first review, and over 100 Plaintiff class members have been released. None of the Plaintiff class members have reoffended.
113. In the majority of cases in which prosecutors have sought to reimpose life-without-parole sentences on Plaintiff class members, courts have instead imposed term-of-years sentences. And in the majority of resentencing hearings involving imposition of a term-of-years sentence, Plaintiff class members have either been released or are awaiting a decision on their parole-eligibility.
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PLAINTIFFS’ INDIVIDUAL FACTUAL ALLEGATIONS Henry Hill
114. One evening in 1980, Henry Hill, aged sixteen, went with two of his cousins, Larnell Johnson and Dennis Johnson, to a park in Saginaw, Michigan. There they saw Anthony Thomas, a young man with whom Henry’s cousins had prior conflicts. Henry’s cousins shot at Anthony Thomas. Henry was reported to have been shooting into the air before he fled the park with his cousin Dennis. His other cousin, Larnell Johnson, remained, shooting and killing Anthony Thomas.
115. At the time of the incident, Henry had been attending Saginaw High School where he had undergone psychological testing and found to have a verbal IQ of 69, a performance IQ of 58, and a full scale IQ of 61. He had a reading word recognition level of 3.6 grade level, a spelling performance at a 3.0 grade level, and an arithmetic ability at 3.3 grade level. The psychologist who conducted the tests concluded that these results showed signs of a suppressed mental age, and that his general insight and maturity level was that of a pre-adolescent.
116. Henry was charged for his participation in the Anthony Thomas death with aiding and abetting first degree murder. Based on this charge, the juvenile court waived its jurisdiction over Henry and one of his co-defendants, sixteenyear-old, Dennis Johnson. Both stood trial as adults.
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117. Following his trial, Henry was convicted by a jury of first degree aiding and abetting murder.
118. Henry’s pre-sentence investigation report notes that his intelligence classification was in the mentally defective range with an academic ability at the third grade level. In the examiner’s opinion Henry had the maturity of a nine-yearold child and was motivated by instant gratification, and the desire to be accepted and secure.
119. The trial court had no discretion to consider Henry’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Henry as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board was never given jurisdiction to consider Henry for parole. At no stage in his prosecution was Henry’s juvenile status considered and, following his conviction, he has never been afforded a meaningful opportunity for release based on his demonstrated maturity and rehabilitation.
120. He worked and participated in his bible study group for which he consistently received excellent reports. Henry did not have a misconduct citation for over a decade and was on a custody level II, the lowest possible for his sentence. He was regarded as a model prisoner.
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121. Prosecutors originally sought to reimpose Mr. Hill’s life-withoutparole sentence but on May 4, 2017, at his resentencing hearing, the court instead resentenced Mr. Hill to a term-of-years sentence. On November 8, 2010, Mr. Hill became parole-eligible. On July 3, 2017, Mr. Hill was considered for release by the Michigan Parole Board and released on October 31, 2017. On June 6, 2018, Mr. Hill was discharged from parole after serving 36 years in an adult prison.
Jemal Tipton 122. In 1987, Jemal Tipton, then aged seventeen, participated in a robbery at the Hunter’s Ridge Condominium Complex in Farmington Hills, Michigan with two adults, Nellie McInnis, a forty-six-year-old acquaintance of his mother, and his older brother, Anthony Parks. 123. Nellie McInnis drove Jemal and Anthony to where the robbery took place. She gave Jemal a .22 caliber pistol and identified an acquaintance of hers, Edward Chapman, as the person to rob. 124. Armed with the .22 pistol, Jemal approached Edward Chapman and demanded his valuables. A scuffle ensued and the gun went off twice. One shot struck Edward Chapman, killing him. 125. Jemal had a difficult upbringing in which he was shuttled between family members and friends during his mother’s stays in jail or drug treatment
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facilities before ending up in the care of Nellie McInnis, a family acquaintance with a long criminal history.
126. Under Michigan laws then in force, Jemal was automatically charged as an adult with felony murder. He was tried as an adult, and after trial he was convicted and given the mandatory adult sentence for the offense, life in an adult prison.
127. In sentencing Jemal, the trial court had no discretion to consider his juvenile status.
128. Michigan law required that the trial court punish Jemal as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment.
129. Because of the nature of the offense, the Michigan Parole Board never had jurisdiction to consider Jemal for parole. At no stage in his prosecution was his juvenile status considered and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
130. Since his incarceration, Jemal has taken every opportunity to rehabilitate himself. He obtained his GED and electrician certification. He currently earns three dollars a day doing electrician work detail and mentors younger prisoners, encouraging them to continue their education while in prison.
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Defendants continue to preclude Jemal from participation in rehabilitation and core programming based on their consideration of Jemal as non-parolable.
131. Jemal has exhausted all of his post-conviction appellate options. 132. Since his incarceration, Jemal has been given a total of eight misconduct tickets, the last one occurring over twenty years ago. Jemal has now served over thirty-two years in adult prison. 133. In 2016, prosecutors filed a motion seeking to reimpose Mr. Tipton’s life-without-parole sentence. 134. On August 28, 2019, the prosecutor withdrew the motion, and on September 27, 2019, Mr. Tipton was resentenced to a term-of-years. 135. Although Defendant MDOC has still to calculate Mr. Tipton’s earned good-time and disciplinary credits it is possible that Mr. Tipton may have served sufficient time in prison that he may be entitled to immediate parole consideration, now that he has been resentenced to a term-of-years.
Damion Todd 136. In 1986, Damion Todd was a seventeen-year-old entering his senior year in high school. On a Saturday night in August, Damion and three friends drove to an end of the summer party in Detroit, Michigan. A short while after they had left the party and were driving home, a group of men drove by and shot at
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them in their car. Convinced that they were from the party, one of Damion’s companions suggested they get his gun and look for the men.
137. They drove back to the party where they were again shot at. Damion’s friend then gave him a shotgun, and told him to fire back. Damion asserts he intended only to fire at the group that shot at them to scare them. However, a young woman who was at the party, Melody Rucker, was struck and died shortly thereafter.
138. At the time of the incident, Damion was a senior at Henry Ford High School in Detroit. He was captain of his football team and had received Letters of Intent from several Division I AA football schools. Damion had no prior involvement in any juvenile or adult criminal proceedings.
139. Damion had volunteered for two summers with the Detroit Police Cadets, a member of the Police Athletic League sports teams, and he was active in his church choir. He worked part-time in a family restaurant in Southfield, as well as in his family’s business.
140. Damion was automatically charged and tried as an adult with assault with intent to kill, first degree murder and felony firearm possession. Damion was subsequently convicted on these charges and sentenced to life on the murder charge, 100 to 200 years on the assault conviction and two years for felony firearm possession.
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141. The Michigan Department of Corrections’ psychologist’s intake report noted that persons with profiles as similar to Damion’s “tend to be persons with very good institutional and post-release adjustment” and that he “could have been dealt with just as efficiently and less expensively through probation in the community,” as “by the time Mr. Todd reaches his early 30’s, he would have matured out of a youthful exuberance and indiscretions which resulted in the needless and tragic death of an innocent female bystander.”
142. Damion’s sentence for the assault with intent to murder was reversed in 1996 as being excessive and an abuse of discretion. He was resentenced to ten to thirty years on this charge. His mandatory life sentence for his conviction under M.C.L. § 750.316, however, remains.
143. The trial court had no discretion to consider Damion’s juvenile status, mental age or maturity. Michigan law required that the trial court charge and punish Damion as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Damion for parole. At no stage in his prosecution was Damion’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
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144. Since his incarceration, Damion obtained certificates in food technology, custodial maintenance, officiating certificates for basketball, volleyball, baseball and Jaycees (a worldwide organization that does humanitarian acts such as donating toys to children). He is a member of the Prisoners of Christ Church and in 1987 he received his GED. Damion received only four misconduct tickets in the thirty-one years he had been incarcerated. He acted as a mentor to young prisoners and was considered by prison officials to be a respectful, thoughtful adult who does his job with excellence and with no management problems. Defendants precluded Damion from rehabilitation programs based on their consideration of him as non parolable until his release.
145. On March 29, 2017, Mr. Todd was resentenced. Mr. Todd was deemed eligible for parole as of September 26, 2013. On March 19, 2018, he was considered by the Michigan Parole Board, and released on parole on May 15, 2018, after serving thirty-one years.
Bobby Hines 146. In 1989, fifteen-year-old Bobby Hines went with nineteen-year-old Christopher Young and sixteen-year-old Derius Woolfolk to confront James Warner about Warner’s alleged involvement in the theft of a jacket from a boy in the neighborhood. The boy had reported that James Warner had threatened him and taken his jacket for money owed on a drug deal.
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147. When the young men saw Warner, Derius Woolfolk fatally shot him and wounded another man he was with. Bobby, who touched neither the weapon nor the victims, was charged as an adult with felony murder. He was tried and subsequently convicted on this charge and sentenced to life imprisonment.
148. The incident occurred in the summer of 1989 shortly after Bobby had completed his eighth grade education at Brooks Middle School in Detroit, Michigan, where he had regular attendance and average grades.
149. Bobby’s co-defendants – Christopher Young, who provided the weapon and sixteen-year-old, Derius Woolfolk, who fatally shot the victim – were both convicted of second degree murder and are serving parolable life sentences.
150. Bobby was automatically charged as an adult under Michigan’s post1988 laws without consideration of his juvenile status, mental maturity or relative culpability. He was tried as an adult and upon conviction the court had to choose between punishing him as an adult or releasing him at age twenty-one.
151. The pre-sentence investigation report set forth an evaluation of and plan for Bobby stating that there was no dispute as to what occurred but that due to the “seriousness of the present offenses this writer feels the services and facilities in the adult program would offer more time and circumstance to rehabilitate this defendant. For these reasons and for the best interest of the public welfare and
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security, it is recommended this defendant be sentenced to a period of incarceration in an adult facility.”
152. The court had no discretion but to sentence Bobby to “a period of incarceration in an adult facility.” Michigan law required that the trial court either sentence him as a juvenile to be released at age twenty-one or sentence him as an adult to a mandatory sentence of life. Bobby was sentenced to serve “the rest of [his] natural life to hard labor and solitary confinement.” Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Bobby for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
153. Bobby was assigned to the lowest custody level available for his sentence. He exhausted all prison educational programs and resources available to him and continued to be denied rehabilitative programming due to Defendants’ consideration of him as non-parolable until his resentencing.
154. Mr. Hines was resentenced on March 16, 2017 and became paroleeligible on October 25, 2011. He was interviewed by the Michigan Parole Board on April 24, 2017 and released on September 12, 2017 after serving twenty-seven years.
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Kevin Boyd 155. In 1994, Kevin Boyd, then aged sixteen, was convicted of first degree premeditated murder for his role in the murder of his father, Kevin Boyd, Sr. by his mother, Lynn Boyd. 156. Kevin’s mother and father had been separated for six years on August 5, 1994, when Kevin’s mother and her lover asked Kevin to give them the keys to his father’s apartment, telling him they were going to kill his father. Kevin gave his mother the keys and did not report his mother’s threat to the police. The next day Kevin went to his father’s apartment, found him murdered and immediately called the police. 157. Four months later, on October 18, 1994, Kevin’s mother confessed to the murder and was arrested. Kevin was also arrested at this time. He was interrogated without counsel or a guardian present. 158. Kevin admitted to having given the keys to his mother knowing that she was planning to murder his father and therefore takes responsibility for his role in the murder. He maintains he did not participate in the actual stabbing incident. 159. Kevin was automatically charged under Michigan’s post-1988 laws and tried as an adult without a judicial waiver hearing. 160. By the time of his sentencing Kevin had turned nineteen, giving the court a difficult choice: to sentence Kevin as a juvenile with mandatory release in
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two years or to sentence him as an adult which would result in a mandatory life sentence.
161. Despite positive reviews for Kevin from supervisors at the juvenile facility where he was detained pending trial and sentencing, opinions that he was nonviolent and unlikely to be a repeat offender and his involvement being based on his youthful desire to please his mother, it was felt that three years would be inadequate for the juvenile system to fully rehabilitate Kevin. Kevin was therefore sentenced to life imprisonment.
162. Kevin appealed and the Michigan Court of Appeals reversed his sentence, finding that the trial court had abused its discretion in sentencing Kevin as an adult, as Kevin was “a model prisoner, an excellent student, amenable to treatment, not a danger to the public and remorseful for his actions.” Four months later, with little explanation, the appeals court reversed itself.
163. Michigan law required that Kevin be sentenced to mandatory life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Kevin for parole and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
164. During his incarceration, Kevin received his GED, several trade certificates and was considered a model prisoner.
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165. The state prosecutor sought to reimpose Mr. Boyd’s life-withoutparole sentence. Mr. Boyd’s resentencing hearing was held on April 25, 2019, and on May 15, 2019, he was resentenced to a term-of-years. Mr. Boyd became paroleeligible on June 1, 2015, and on June 24, 2019, he was considered for release on parole by the Michigan Parole Board. On or about October 15, 2019, Mr. Boyd was notified that he would be released on parole on January 7, 2020 after having served twenty-five years in adult prison.
Bosie Smith 166. In 1992, Bosie Smith, then aged sixteen, was involved in the stabbing death of an adult male during a fight. 167. Although the adult male who initiated the fight was eight years older and twice the size of the 103 pound Bosie, the jury rejected Bosie’s claim of selfdefense and convicted him on the first degree murder charge. 168. Bosie was born with fetal alcohol syndrome. He was abandoned by both his parents and was raised by his maternal grandmother. At the time of his conviction, he had completed schooling through the eighth grade. Bosie was a member of his school’s wrestling team and local church youth group. 169. Bosie was tried as an adult under Michigan’s automatic transfer laws. He was charged and tried as an adult without a judicial waiver hearing or any consideration of his juvenile status, mental age or maturity.
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170. Both the case evaluator and the judge were troubled by the idea of sentencing Bosie to life imprisonment. Nevertheless, the case evaluator recommended adult sentencing because the only other option was four years in the juvenile system. The trial judge stated that he would sentence Bosie to a term of years if he had that option but that he was bound by the statute, which required a mandatory life sentence.
171. On appeal, the conviction was affirmed but the case was remanded upon a finding that the trial court abused its discretion in sentencing Bosie as an adult. The Court of Appeals ordered Bosie to undergo psychological testing to assist the trial court in its sentencing. However, the Supreme Court reversed the Court of Appeals remand order, finding that there was no clear error or abuse of discretion by the trial court.
172. Michigan law required that the trial court sentence Bosie to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Bosie for parole and, he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
173. During his incarceration, Boise completed his GED and was involved in numerous prison groups, including Commitment to Change, Career Scope, Second Chance at Life, and Retired Greyhound Prison Program. Boise also earned
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certificates pertaining to “Communication Skills,” “Diversity,” “Critical Thinking,” “Prisoner Rape Elimination Act Education,” and “Blood Bourn.” Throughout his time in prison, Bosie maintained Level II custody, the lowest allowed for his offense. He exhausted all prison educational programs and resources available to him and was denied rehabilitative programing due to Defendants’ consideration of him as non-parolable.
174. The prosecutor originally sought to reimpose Mr. Smith’s lifewithout-parole sentence, but on March 22, 2017 he was resentenced to term-ofyears sentence instead, which made him parole-eligible on September 5, 2018. The Michigan Parole Board considered Mr. Smith for release on parole and released him on September 5, 2018 after Mr. Smith had served thirty-one years.
Jennifer Pruitt 175. In 1992, Jennifer Pruitt, then aged sixteen, participated in a plan to rob one of her neighbors in Pontiac, Michigan. 176. Jennifer was a runaway from sexually and physically abusive parents when she committed her crime. She had no prior criminal record. 177. At the time of the robbery, Jennifer was staying with Donnell Miracle, a twenty-three-year-old neighbor. While Miracle initiated the robbery plan, Jennifer was the one who singled out the neighbor, Elmer Heichel, as the person to rob.
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178. Elmer Heichel let Jennifer and Miracle into his house at 1:30 a.m. on August 30, 1992. Jennifer went to use the bathroom and then went into the back room to steal the neighbor’s wallet. When she came out of the room she witnessed Miracle stabbing Elmer Heichel.
179. Jennifer did not participate in the stabbing. She also reported the incident and her involvement to the police that same day, leading to the subsequent arrest of Miracle.
180. The trial of Jennifer Pruitt was delayed. Jennifer’s remorse was so strong that she became self-injurious and was committed to a psychiatric facility where she was deemed incompetent to stand trial for over a year.
181. Under Michigan law, Jennifer was automatically charged as an adult with first degree murder and armed robbery. She was convicted of felony murder and sentenced as an adult based upon the pre-sentence investigation report’s assertion that the adult facilities would afford greater opportunities for her rehabilitation. However, the report failed to acknowledge that her rehabilitation and eventual return to society was impossible because under Michigan law, the court had no discretion to give her any sentence other than life in prison.
182. Given the nature of the offense for which Jennifer was convicted, the Michigan Parole Board did not have jurisdiction to consider her for parole, and she
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was never afforded a meaningful opportunity for release based on her juvenile status and her demonstrated maturity and rehabilitation.
183. During Jennifer’s initial years in adult prison, she was raped by two male correctional officers. She had also undergone counseling to assist her recovery from post-traumatic stress disorder.
184. In her last ten years in prison, Jennifer completed her GED and all recommended rehabilitation programs offered her. Jennifer had been waived to a Level I security classification, based on her special status as a counselor and mentor. She was described as an “inmate role model and excellent worker, dependable, honest, sincere and reliable.” She exhausted all prison educational programs and resources available to her and was denied rehabilitative programing due to Defendants’ consideration of her as nonparolable until resentencing.
185. The On March 2, 2017, Jennifer was resentenced to a term-of-years sentence and became parole-eligible on April 4, 2017. Because of Defendants’ failure to provide Jennifer with rehabilitative and other programming, Jennifer was not considered for release on parole by the Michigan Parole Board until April 30, 2018. This failure to provide required programming also delayed Jennifer’s release on parole until October 16, 2018.
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Matthew Bentley 186. In 1997, Matthew Bentley was a fourteen-year-old ninth grader at Bad Axe High School in Michigan when he decided to break into a house in his neighborhood. 187. Matthew was the youngest child of his mother and father’s second marriage, and he was five when his father was incarcerated for sexual abuse of his sister. He was then raised by his mother. Matthew had a difficult time focusing at school, and in grade school he was diagnosed with Attention Deficit Disorder. He was prescribed Ritalin and he took the medication until his mother could no longer afford it. He was an active member of the Boy Scouts, young marines, and his local church. He helped with his brother-in-law’s business, swam, wrote poetry, played basketball and babysat his nieces and nephews. 188. Matthew began drinking alcohol at the age of eleven and using marijuana at age thirteen. In 1996, he was prescribed Zoloft for depression and Dexedrine for hyperactivity. His use of drugs and behavior resulted in foster care placement shortly before he committed his offense. 189. On the day of the incident, Matthew left school early and broke into a home he thought was unoccupied. While he was in the house, he found the owner’s gun, which he took with him while rummaging through the house for
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other valuables. When unexpectedly confronted by the owner of the house, Matthew shot and fatally wounded her before fleeing the scene.
190. Matthew was arrested the same day and, under the newly enacted Michigan law lowering the age for automatic waiver to adult prosecution to fourteen, was charged as an adult with felony murder, home invasion, and felony firearm possession.
191. Tried as an adult, Matthew was convicted of all three offenses and given the mandatory sentence of life imprisonment. The judge stated at his sentencing hearing that if he had a choice he would have given Matthew a term of years which would have afforded him the opportunity for release in fifteen years.
192. In addition to lowering the age for automatic adult prosecution to fourteen, the 1996 laws under which Matthew was charged and sentenced eliminated any discretion to consider Matthew’s juvenile status at sentencing. Matthew was charged, tried, convicted and sentenced without any discretion to consider his juvenile status, mental age or maturity. Michigan law required that the trial court punish Matthew as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Matthew for parole.
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193. At no stage of his criminal prosecution and sentencing was Matthew’s juvenile status considered, and he has never been afforded a meaningful opportunity for release based on this status and his demonstrated maturity and rehabilitation.
194. Since being imprisoned, Matthew has earned his GED and a trade certificate in custodial maintenance. He acts as a mentor and a guardian to incoming young prisoners who are targeted by older sexually predatory inmates.
195. Prosecutors sought to reimpose Mr. Bentley’s life-without-parole sentence, but did not pursue the sentence on resentencing because they missed the 180-day filing deadline.
196. On September 25, 2017, Mr. Bentley was resentenced to 32-60 years and will become parole-eligible on March 1, 2026.
197. Mr. Bentley has now served over twenty-one years in prison. He is currently a Level II custody level prisoner, the lowest allowed for his offense. He is, for the first time, eligible for participation in rehabilitative programming.
Keith Maxey 198. In 2007, Keith Maxey was sixteen when he accompanied two adult acquaintances to meet some men to buy marijuana. Three people were shot during the drug deal, including Keith. Keith and one of his co-defendants were
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subsequently charged with attempting to rob the drug dealers and in the death of one of them, who later died from his wound.
199. Keith’s co-defendant, Tyrell Adams, a twenty-year-old who shot the victims and committed the murder, pled to second degree murder and is serving a term of years. The second co-defendant Antoine Bailey, who was also a twentyyear-old, was charged and convicted of assault with intent to commit murder and sentenced to fifteen years.
200. Keith, the only juvenile involved in the incident, was automatically charged and tried as an adult and convicted of first degree felony murder.
201. Keith was then sentenced as an adult to a mandatory life sentence. 202. Keith appealed his conviction and sentence but the Court of Appeals affirmed the lower court’s order. His application for leave to appeal to the Michigan Supreme Court was denied. 203. The 1996 laws under which Keith was charged and sentenced eliminated any discretion to consider Keith’s juvenile status at sentencing. Keith was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Keith as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Keith for parole, and he has never
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been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
204. The prosecutor is not seeking to reimpose Mr. Maxey’s life-withoutparole sentence.
205. Keith has not been resentenced, and has no scheduled date for his resentencing hearing.
206. Keith has been imprisoned for nearly eleven years without any opportunity to complete core programming of violence prevention, assaultive or substance abuse or other rehabilitative programs. During his time he has received few misconduct citations, the last one being four years ago, and is classified to the lowest security level allowed for his offense. Keith continues to be denied rehabilitative and core programing due to the fact that he has not been resentenced.
Giovanni Casper 207. In 2006, Giovanni Casper was in the tenth grade and had just turned seventeen when he attended a social event at a local roller rink with his friends. A fight broke out at the roller rink, between Giovanni and his friends and another group of teenagers, which was broken up by employees at the roller rink. Another fight began when Kenneth Dear approached Giovanni and began swinging punches.
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208. The testimony at trial was that Giovanni was standing in front of Kenneth Dear at the roller rink when Dear suffered a single and fatal gunshot wound to the chest. The prosecution argued that although no one saw a gun in Giovanni’s hand his proximity to Mr. Dear and the testimony of prior bad blood between the two teens was sufficient to sustain a conviction.
209. Giovanni was automatically charged and tried as an adult and convicted of first-degree pre-meditated homicide.
210. Giovanni was sentenced as an adult to a mandatory life sentence. 211. Giovanni maintains his innocence and appealed his conviction to the Michigan Court of Appeals which affirmed his sentence in 2009. His application for leave to appeal to the Michigan Supreme Court was denied. 212. The laws under which Giovanni was charged and sentenced eliminated any discretion to consider his juvenile status at sentencing. Giovanni was charged, tried, convicted and sentenced without any consideration of his juvenile status, mental age or maturity. Michigan law required that the trial court punish Giovanni as if he were an adult and sentence him to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board had no jurisdiction to consider Giovanni for parole, and he has never been afforded a meaningful opportunity for release based on his juvenile status and his demonstrated maturity and rehabilitation.
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213. Prosecutors did not seek to reimpose Giovanni’s life-without-parole sentence.
214. On September 30, 2016, Giovanni was resentenced to 40-60 years and he will become parole eligible on November 13, 2048.
215. Giovanni has been imprisoned for twelve years. During this time he has completed his GED and is classified to the lowest security level allowed for his offense. Before he was resentenced Giovanni had exhausted all prison educational programs and resources available to him and Defendants deprived Giovanni of core and other rehabilitative programing because they considered him as nonparolable. The lack of such programming negatively impacted the outcome of Giovanni’s resentencing hearing.
Jean Carlos Cintron 216. Jean Carlos Cintron was sixteen years old in 2008 when he went with his older brother and two of his brother’s friends to the house of Laval Crawford, a man alleged to have beaten and robbed Jean at gun point earlier in the day. 217. Laval Crawford and a group of his friends returned to the home armed with guns. Jean, with his brother and two co-defendants, ran out of the house, shooting their guns. Jean’s co-defendant Diego Galvan was convicted of fatally shooting Laval Crawford and sentenced to life for first-degree premeditated
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murder. Jean’s older brother was also convicted of first-degree murder and sentenced to life.
218. Jean, the only juvenile involved in the incident, was automatically charged as if he were an adult with felony murder. He was tried as an adult, without any consideration of his juvenile status, and convicted of felony murder and received the mandatory punishment of life without parole.
219. Prior to this offense, Jean was an 11th grade student, in excellent standing, at Pontiac Central High School, with no prior juvenile, misdemeanor or felony offenses.
220. At no stage of his criminal proceeding was Jean’s juvenile status considered.
221. The prosecutor did not seek to reimpose Jean’s life-without-parole sentence. On May 3, 2018 Jean was resentenced to 30-60 years. Jean will become parole-eligible on May 25, 2041.
222. Jean had earned his GED and is currently a level II custody prisoner, the lowest level allowed for his offense.
223. Before he was resentenced, Jean had exhausted all prison educational programs and resources available to him. The lack of rehabilitative programing before he was resentenced negatively impacted Jean at resentencing.
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Nicole Dupure 224. In 2004, Nicole was seventeen when her older boyfriend, William Blevins, was charged with robbery and murder of an elderly woman, Shirley Perry, in Macomb County, Michigan. 225. Initially, William Blevins admitted that he had acted alone in stabbing Shirley Perry but later, in exchange for a plea to second degree homicide, Blevins testified that Nicole aided and abetted the robbery and homicide William Blevins, the individual who actually committed the murder, is eligible for release in 2024. 226. Nicole Dupure was charged as an adult and convicted of first degree homicide under alternate theories of felony murder and first degree premeditated murder. She was given the mandatory sentence for an adult, life without possibility of parole, and incarcerated in an adult prison. 227. Nicole Dupure had no prior contact with the criminal justice system, juvenile record or misdemeanors. 228. At no stage of her criminal prosecution and sentencing was Nicole’s juvenile status considered, and she has never been afforded a meaningful opportunity for release based on this status and her demonstrated maturity and rehabilitation. 229. Since her imprisonment, Nicole has participated in all programs available to her and she has maintained an excellent work record.
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230. The Court of Appeals affirmed Nicole’s first degree conviction and dismissed her second degree conviction.
231. Nicole is currently a Level II custody level prisoner, the lowest allowed for her offense.
232. Nicole has exhausted all prison educational programs and resources available to her and continues to be denied core and other rehabilitative programing because Defendants consider her as non-parolable.
233. Prosecutors filed a motion to reimpose Nicole’s life-without-parole sentence, but Defendants have not yet scheduled her resentencing hearing. Nicole Dupure has served over thirteen years.
Dontez Tillman 234. In 2008, Dontez Tillman was a fourteen year old middle school student who had just finished the seventh grade when he was arrested and charged as an adult with felony murder in Oakland County, Michigan. 235. Dontez was subsequently convicted of felony murder for his role in the beating of a homeless man, Wilford Hamilton, who died four days later as a result of his injuries. 236. Dontez, at fourteen years old, was charged as if he were an adult, tried and convicted at the age of fifteen. Dontez was then punished with a mandatory life-without-parole sentence to be served in an adult prison.
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237. Dontez’ co-defendants included Darrin Higgins, a 15 year old who was charged with the beating deaths of two men. Darrin pled to two charges of second degree murder and received a term-of-years sentence.
238. Another of Dontez’ co-defendants, Thomas McCloud, who, like Dontez, was also fourteen years old, was charged, tried, convicted as if he were an adult and sentenced to life-without- possibility of parole.
239. Following the Supreme Court’s decision in Miller v. Alabama, Dontez was resentenced to 32.5 to 60 years in prison by a judge. Under the statutory scheme then in place, there was no requirement that the resentencing court consider as mitigating factors Dontez’s age and its attendant characteristics. Nor is there any requirement that the Michigan Parole Board consider these factors, or Dontez subsequent growth and maturation when the Board considers him for release on parole. Dontez will never be afforded a meaningful opportunity to obtain his release that is based on his age at the time he committed his offense, and on his demonstrated maturation and rehabilitation.
240. Since his imprisonment, Dontez has been denied participation in recommended substance abuse programming and has not been provided violence prevention programming. Dontez recently completed his GED.
241. Dontez currently is a Level II custody level prisoner, the lowest allowed for his offense.
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Deon Haynes 242. One late evening in 1992, Deon Haynes, aged sixteen, was hanging out with four of his friends, Terry Montgomery (20-something), Sven Hinson (14, originally charged with the murder), Tory Thomas (17), Alberto Herrera (16), who discussed an armed robbery of Donna Baudoux in her home in Saginaw, Michigan. There was conflicting testimony at each of the three trials of Mr. Haynes. Mr. Haynes testified that Terry drove the car to Ms. Baudoux’s house, where Tory, Sven and Alberto all went into the house. Deon Haynes testified that Terry and himself stayed in the car, and that Sven Hinson shot Ms. Baudoux’s daughter. 243. Deon’s first trial was a hung jury. At the second, the jury came back hung again. At the third trial Deon was convicted as charged with weapons-felony firearm, carrying a weapon with unlawful intent, assault with intent to rob while armed, and felony murder. The juvenile court waived its jurisdiction over Deon and Alberto. Sven was tried in juvenile court and found not guilty. Alberto was tried and convicted in juvenile court for attempted armed robbery and sentenced to time in a boy’s camp. 244. At the time of the incident, Deon had been attending Saginaw High School, where he was enrolled in special education classes. He had just finished Tenth Grade. .
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245. The trial court had no discretion to consider Deon’s juvenile status, age or maturity or any other mitigating circumstances. Michigan law required that the trial court charge and punish Deon as if he were an adult and sentence him as such to the mandatory adult sentence of life imprisonment. Because of the nature of the offense, the Michigan Parole Board was never given jurisdiction to consider Deon for parole. At no stage in his prosecution was Deon’s juvenile status considered and, following his conviction, he has never been afforded a meaningful opportunity to obtain his release based on his demonstrated maturity and rehabilitation.
246. Deon is housed at the Lakeland Correctional Facility as a Level II, the lowest custody level allowed for a prisoner serving a life sentence. He has not received a major misconduct since 2011. He works as a porter and has maintained employment at each facility he has been housed at. He has participated in all programming available to him, including the Custodial Maintenance Program, Thinking for a Change, Cage the Rage, Leadership Development and Chance for Life. He is currently enrolled in a Victim Awareness Class.
247. In July 2016, the prosecutor in Saginaw County filed a notice of intent to seek to impose a life-without-parole sentence for Deon and thirty other Plaintiffs who, like Deon, had a right to be resentenced. Almost 4 years later, Saginaw County has yet to resentence Deon and nearly half of the Plaintiffs entitled to be
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resentenced in that county. No date has been set for Deon’s resentencing hearing and the prosecutor has not taken any action on his file after the notice was filed to resentence him to life-without-parole.
248. Deon has served almost 28 years in prison and upon resentencing to a term-of-years would be eligible for disciplinary credits.
Lonnell Haywood 249. In 1997, Lonnell, then age sixteen, was charged as an adult with firstdegree premeditated murder and felony firearm for the murder of Robert Hill, in Wayne County, Michigan. Lonnell was convicted and sentenced to a mandatory life-without-parole sentence. 250. At no stage of his criminal prosecution and sentencing was Lonnell’s juvenile status considered, and he has never been afforded a meaningful opportunity to obtain his release based on his demonstrated maturity and rehabilitation. 251. Since his imprisonment, Lonnell has participated in all programs available to him and he has maintained an excellent work record. Lonnell is currently working as a laundry porter and has completed Chance for Life, Parenting from a Distance, Ethical Thinking, among others, and he has certification in OSHA for recognizing safety hazards. Lonnell is currently a Level II custody level prisoner, the lowest custody level allowed for his offense.
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252. Lonnell has exhausted all prison educational programs and other rehabilitative resources available to him. Because Defendants do not consider Lonnell parole-eligible, they deny him access to core and other rehabilitative programing.
253. The Wayne County prosecutor filed a motion to reimpose Lonnell’s life-without-parole sentence, relying wholly on the seriousness of the offense of which he was convicted and the unsupported conclusory statement that Lonnell is irreparably corrupt, despite Lonnell’s age at the time of the offense and subsequent evidence of his maturity and rehabilitation.
254. Lonnell has served over twenty-three years in prison and would be eligible for disciplinary credits upon resentencing which could make him immediately parole-eligible – assuming he is resentenced to a term-of-years.
255. Lonnell has waited nearly four years for a resentencing hearing. No date has been set for it and no action has been taken by the prosecutor on his case after the notice was filed seeking to resentence him to a life-without-parole sentence.
Efran Paredes 256. In 1989, Efran was fifteen when he was charged as an adult with armed robbery, felony murder and first-degree premeditated murder for the murder of Richard Tetzlaff in Berrien County, Michigan. After his trial, Efran was
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convicted of first-degree premediated homicide murder, felony and armed robbery, and punished with a mandatory life-without-parole sentence.
257. At no stage of Efran’s prosecution and sentencing was his juvenile status considered. Nor has Efran been afforded a meaningful opportunity to obtain his release based on consideration of his youth when he committed his crimes or his subsequent demonstrated maturity and rehabilitation.
258. Since his imprisonment, Efran has participated in all rehabilitative programs made available to him and has maintained an exemplary work record. Efran is currently working as a unit porter and a Literary Braille Transcriber as certified by the U.S. Library of Congress, and has completed Cage Your Rage, Character Development, and Conflict Resolution.
259. Efran is currently a Level II custody level prisoner, the lowest custody allowed for his offense, and has exhausted all prison educational programs and other rehabilitative resources available to prisoners like him, who Defendants do not consider parole-eligible. In particular, Defendants deny Efran core and other rehabilitative programing because they consider him non-paroloable.
260. The Berrien County prosecutor filed a motion to reimpose Efran’s life-without-parole sentence, but has taken no steps to schedule a hearing on this motion. To date, nearly four years after his sentence was vacated, Efran is not aware of any scheduled date for his resentencing.
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261. Efran has served over thirty-one years in prison and could be immediately parole-eligible if he is resentenced to a term-of-years. Efran could also be entitled to good-time credits making him immediately parole-eligible even if he is resentenced to the maximum term-of-years of 40-60.
CLASS ALLEGATIONS 262. Plaintiffs seek relief on behalf of themselves and all others similarly situated, namely, all current individuals in Defendants’ custody who received a life sentence for a first-degree homicide offense committed by them when they were below 18 years of age. 263. After this Court granted summary judgment in Plaintiffs’ favor on the claims in Plaintiffs’ First Amended Complaint, Defendants refused to recognize that the Court’s order applied to anyone other than the named Plaintiffs. 264. Therefore, it is necessary and appropriate to certify this case as a class action under the Federal Rules of Procedure, Rule 23(b)(2). Defendants 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. Plaintiffs seek class certification to ensure that this Court’s declaratory and injunctive orders will cover all individuals who are subject to Defendants’ continuing refusal to comply with Graham, Miller, Montgomery, and
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other related constitutional requirements pertaining to the punishment of persons who commit offenses when they are below 18 years of age.
265. The class is so numerous that joinder of all members is impracticable. There are over 360 individuals in Defendants’ custody serving life sentences for offenses committed when they were below 18 years of age.
266. There are questions of law or fact common to the class. All class members are individuals in Defendants’ custody for first-degree homicide offenses committed when they were below 18 years of age, and the question of law common to the class is whether they are being denied a meaningful opportunity to obtain their release based on their demonstrated maturity and rehabilitation.
267. Plaintiffs’ claims are typical of the claims of the class. Plaintiffs’ claims arise from the same event, practice, or course of conduct that gives rise to the claims of other class members, and their claims are all based on the same legal theories.
268. Plaintiffs will fairly and adequately assert and protect the interests of the class. Plaintiffs have common interests with the other class members, and are not antagonistic to the interests of other class members. Additionally, the attorneys for Plaintiffs are experienced and capable litigators in the field of civil and human rights, including litigation on behalf of incarcerated individuals and in class actions.
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269. On April 9, 2019, this Court certified this matter as a class, appointed class counsel, and recognized the existence of subclasses.
CAUSES OF ACTION 42 U.S.C. § 1983
FIRST CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT AND DUE PROCESS) 270. M.C.L. § 791.234(6), as it continues to be enforced, violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments, because it deprives Plaintiffs punished with a mandatory sentence of life imprisonment to a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation.
SECOND CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT) 271. M.C.L. §§ 750.316, 769.25, 769.25a and 791.234 violate the Eighth Amendment, because they subject Plaintiffs to sentences of life imprisonment without the possibility of release on parole for offenses committed by them when they were below 18 years of age.
THIRD CAUSE OF ACTION (EX POST FACTO)
272. At the time of Plaintiffs’ offenses, the mandatory and maximum sentence for first-degree murder under M.C.L. § 750.316 was life imprisonment.
273. For individuals convicted of second-degree murder under M.C.L. § 750.317, the maximum sentence is also life imprisonment.
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274. When Plaintiffs were convicted, Plaintiffs’ eligibility for release on parole while serving their life sentences was determined by M.C.L. § 791.234, which authorizes the Michigan Parole Board to exercise jurisdiction over individuals serving life sentences who were convicted of second-degree murder but prohibits the Board from considering for release on parole individuals serving life sentences for first-degree murder.
275. Because M.C.L. § 791.234 is a provision of the Michigan corrections code and a component of the judgment of sentence, the legislature was and is free to enlarge the Parole Board’s jurisdiction to include prisoners serving life sentences for convictions under M.C.L. § 750.316, just as it has jurisdiction over prisoners serving life sentences for convictions under M.C.L. § 750.317.
276. Following the Supreme Court’s ruling in Miller v. Alabama, the legislature amended M.C.L. § 750.316 and enacted M.C.L. §§ 769.25 and 769.25a, which changed the maximum sentence for first degree murder from life imprisonment to life imprisonment without the possibility of parole for persons who committed their offenses when they were below 18 years of age.
277. The life-without-parole punishment of M.C.L. §§ 750.316, 769.25 and 769.25a, as applied only to Plaintiffs, and others below 18 years of age at the time they committed their offenses, violates the Ex Post Facto Clause of Article I, § 10, of the United States Constitution because it subjects Plaintiffs to a harsher sentence
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than the law in effect at the time of their offense and original sentencing and imposes this sentence only on Plaintiffs and those similarly situated.
FOURTH CAUSE OF ACTION (CRUEL & UNUSUAL PUNISHMENT AND DUE PROCESS) 278. Under the Eighth Amendment, a mandatory punishment of life in prison without the possibility of release on parole is cruel and unusual punishment when imposed for an offense committed by persons when they were below 18 years of age. 279. For children who face a punishment of imprisonment for the rest of their lives, the Eighth Amendment and Due Process Clause requires that opportunities to obtain release be meaningful. 280. Under M.C.L. §§ 750.316, 769.25 and 769.25a, Plaintiffs face a mandatory term of imprisonment that is the equivalent of life imprisonment. If Plaintiffs are not sentenced to life without the possibility of parole, they must be sentenced to a term of years that requires their imprisonment for up to a minimum of 60 years. A 60 year sentence substantially exceeds their life expectancy in prison. 281. Under M.C.L. §§ 791.231 through 791.246, Plaintiffs who are subject to a prison term of no less than a 60-year maximum sentence are not guaranteed a meaningful opportunity for release on parole before the end of their natural lives
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due to Defendants’ policies and procedures governing access to prison programming and parole eligibility, consideration and release.
282. This statutory scheme violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments.
FIFTH CAUSE OF ACTION (EX POST FACTO)
283. Until 1987, Michigan allowed reduction of sentences for those prisoners who served “good-time” without misconducts or accumulated disciplinary credits. Prisoners could earn from 5-15 days per month off their minimum sentences and could also reduce their maximum sentence. M.C.L. § 800.33.
284. Over 75 individuals serving life sentences have accumulated goodtime and/or disciplinary credits.
285. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court confirmed that Plaintiffs’ life sentences were void ab initio.
286. Under M.C.L. §§ 769.25 and 769.25a, Plaintiffs are now subject to term-of-years sentences to replace their void life sentences.
287. However, M.C.L. § 769.25a(6) deprives Plaintiffs of any good-time or disciplinary credit on time already served.
288. M.C.L. § 769.25a(6), as applied to Plaintiffs, violates the Ex Post Facto Clause of Article I, § 10, of the United States Constitution because it
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subjects Plaintiffs to a harsher punishment than the law in effect at the time of their offense and original sentencing.
SIXTH CAUSE OF ACTION (EIGHTH AMENDMENT AGAINST DEFENDANTS WASHINGTON
& EAGEN) 289. In 2013, this Court declared that all individuals convicted and punished to mandatory sentences of life-without-possibility of parole for crimes committed when they were below 18 years of age to be serving parolable life sentences. 290. The Eighth Amendment and Due Process Clause require that any person below 18 years of age who is convicted of a homicide offense that does not reflect irreparable corruption must receive a fair and meaningful opportunity for release, including a right to educational and other rehabilitative programming, necessary for them to demonstrate growth, maturity, and suitability for release. 291. Defendants Washington and Eagen have continued to treat Plaintiffs as if they were serving nonparolable life sentences, and have and continue to deprive Plaintiffs of any meaningful opportunities for release. 292. Defendants Washington has refused and failed to provide programming, education, training and rehabilitation opportunities necessary for Plaintiffs to demonstrate their suitability for release.
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293. Defendants have continued to deny Plaintiffs parole opportunities by invoking M.C.L. § 791.234, despite this statute having been declared unconstitutional. Therefore, Defendants have deprived Plaintiffs of meaningful opportunities to obtain release based on their demonstrated growth, maturity and rehabilitation.
294. Defendants continued refusal to provide Plaintiffs rehabilitative programming and consequent meaningful opportunities to obtain release on parole has resulted in Plaintiffs’ loss of liberty, extended their incarceration, causing them physical injuries and severe emotional distress.
295. Defendants’ failure to provide Plaintiffs with access to the programming, education, training, rehabilitation opportunities violates Plaintiffs’ rights under the Eighth and Fourteenth Amendments.
SEVENTH CAUSE OF ACTION (CUSTOMARY INTERNATIONAL LAW) 296. By subjecting Plaintiffs to life in prison without a meaningful opportunity for release based on their juvenile status and their demonstrated maturity and rehabilitation, Defendants are punishing Plaintiffs with no legitimate penological justification, and as such subjecting them to cruel, inhuman or degrading treatment or punishment in violation of customary international law as reflected, inter alia, in the Universal Declaration on Human Rights, the ICCPR and the U.N. Convention on the Rights of the Child, which extend special measures of
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protection to children, prohibit life imprisonment without the possibility of release for offenses committed by persons below eighteen years of age, and condemn the practice as a form of cruel, inhuman or degrading treatment or punishment.
297. Defendants’ violations of customary international law are actionable pursuant to 42 U.S.C. § 1983 in that customary international law has been held, since the Constitution’s adoption, to be part of the laws of the United States.
EIGHTH CAUSE OF ACTION (EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION - PROCEDURAL DUE PROCESS (DELAY IN
RESENTENCING)) 298. Plaintiffs Dupure, Maxey, Haynes, Haywood, and Paredes, assert this claim on behalf of themselves and the proposed sub-class of Plaintiffs who have yet to be resentenced. 299. Because of the unreasonable delays in their resentencing hearings, there are nearly 200 class members who continue to be held in carceral limbo without any meaningful opportunity to obtain their release based on their demonstrated maturation and rehabilitation. 300. The Fourteenth Amendment of the U.S. Constitution prohibits the State of Michigan from depriving any person of life, liberty, or property without due process of law. 301. Plaintiff sub-class members have substantial liberty interests in a resentencing hearing under M.C.L. § 769.25, and under the Eighth Amendment,
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pursuant to the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012).
302. Plaintiffs’ state and federal liberty interests in a resentencing hearing require that the Plaintiff sub-class members receive their resentencing hearings without undue delay.
303. Resentencing hearings will result in Plaintiff sub-class members receiving term-of-years sentences to replace their vacated life-without-parole sentences, which may result in their immediate eligibility for parole or for release. Plaintiff class members who receive a term-of-years sentence may also become eligible for rehabilitative and other programming necessary to demonstrate their suitability for release on parole.
304. Thus, Defendants’ delay of more than three years in convening resentencing hearings is unreasonable and has prejudiced the sub-class. There are no valid justifications for the delays. Further, providing reasonably prompt resentencing hearings would not impose substantial fiscal and administrative burdens on the State. Defendants have instead unnecessarily extended Plaintiff Class’ incarceration, and deprived them of eligibility for rehabilitative and other programming.
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305. This failure to provide resentencing hearings to the Plaintiff Class violates the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
RELIEF REQUESTED
WHEREFORE, Plaintiffs pray for a judgment against Defendants and request that this Court:
A. Issue a declaratory judgment declaring that the continued incarceration of Plaintiffs without affording them a meaningful opportunity to obtain release based on their child status at the time they committed their offenses and demonstrated maturity and rehabilitation, violates Plaintiffs’ rights guaranteed by the United States Constitution, statutory law, and customary international law;
B. Issue a declaratory judgment that M.C.L. §§ 750.316, 769.25, 769.25a, and 791.234, as applied to Plaintiffs, violates the Ex Post Facto Clause and the Eighth and the Fourteenth Amendments of the U.S. Constitution and customary international law;
C. Issue a declaratory judgment that Defendants’ laws, policies and practices in denying Plaintiffs of rehabilitative and other in-prison programming because of their “lifer” status violates Plaintiffs’ right to a meaningful opportunity to obtain their release based on their
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demonstrated maturity and rehabilitation in violation of the Eighth Amendment of the U.S. Constitution. D. Issue a declaratory judgment that the failure to provide notice of and to convene resentencing hearings for the Plaintiff Class without undue delay violates the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. E. Grant injunctive relief ordering Defendants to provide Plaintiffs with a meaningful opportunity to obtain their release based on their demonstrated maturity and rehabilitation; F. Retain jurisdiction over this action until the Court is satisfied that the unlawful laws, policies, practices, rules, acts and omissions complained of have been satisfactorily rectified; G. Award Plaintiffs attorney fees and costs; and H. Award such other and further relief as seems just and proper.

Dated: February 27, 2020

Respectfully submitted,
/s/ Deborah LaBelle Deborah LaBelle (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com

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Daniel S. Korobkin (P72842) Bonsitu A. Kitaba-Gaviglio American Civil Liberties Union Fund
of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org bkitaba@aclumich.org
Steven M. Watt Brandon J. Buskey American Civil Liberties Union
Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 swatt@aclu.org bbuskey@aclu.org
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2020, I electronically filed this paper
and all attachments with the Clerk of the Court using the ECF system which will
send notification of such filing to all counsel of record.
/s/ Deborah LaBelle Deborah LaBelle (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 deblabelle@aol.com
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 Case 2:10-cv-14568-MAG-RSW ECF No. 325 filed 06/02/20 PageID.7102 Page 1 of 25

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, et al.,

Plaintiffs,

Case No. 10-14568

vs.

HON. MARK A. GOLDSMITH

GRETCHEN WHITMER, et al.,

Defendants. __________________________________/

OPINION & ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
WITH RESPECT TO COUNT VI (Dkt. 292)

The Supreme Court has held that statutorily mandated sentences of life without parole for

juvenile offenders are unconstitutional. Montgomery v. Louisiana, – U.S. – , 136 S. Ct. 718, 736

(2016); Miller v. Alabama, 567 U.S. 460, 470 (2012). A sentencing scheme must instead permit

courts to consider the hallmark features of youth when sentencing juveniles. Miller, 567 U.S. at

477. Moreover, all but the most incorrigible juvenile offenders are entitled to “some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 479

(quoting Graham v. Florida, 560 U.S. 48, 75 (2010)); Montgomery, 136 U.S. at 736.

In this class action, the named Plaintiffs and class members are juvenile homicide offenders

who, prior to the Supreme Court’s decisions, were sentenced to mandatory life without parole.

Now, in light of Montgomery and Miller, they are being resentenced and will, in all likelihood,

have the opportunity to appear before the Michigan Parole Board. In Count VI, Plaintiffs claim

that they are being deprived of a meaningful opportunity to obtain release because of policies

denying them access to certain rehabilitative programs. Defendants have filed a second motion

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for summary judgment with respect to Count VI (Dkt. 292).1 They argue that summary judgment is warranted on the grounds that class members are not prevented from accessing rehabilitative programming and that, in any event, unfulfilled programming recommendations have not deterred class members from obtaining parole.
As more fully described below, the Court denies Defendants’ second motion for summary judgment. All but the most irredeemable juvenile offenders are entitled to a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation. Access to the very programming that enables juvenile offenders to make such a showing of rehabilitation— and that can play a significant role in parole hearings—is an important component of a meaningful opportunity. Here, the evidence demonstrates that class members are being denied timely access to programming and that noncompletion of programming has served as a basis for denying or deferring parole for some class members. The fact that some class members are thereafter provided a later opportunity to obtain parole is of no moment, as states must ensure that all opportunities to obtain release are meaningful.2
I. BACKGROUND In response to the Supreme Court’s decisions in Miller and Montgomery, the Michigan state legislature amended its statutory scheme that previously excluded juvenile offenders convicted of first-degree murder from the jurisdiction of the Michigan Parole Board. See Mich. Comp. Laws §§ 750.316, 791.234(6)(a). The amended statute mandates resentencing for all
1 Defendants are Gretchen Whitmer, Governor of the State of Michigan; Dana Nessel, Attorney General of the State of Michigan; Heidi E. Washington, Director of the Michigan Department of Corrections (“MDOC”); and Michael Eagen, Chair of the Michigan Parole Board. 2 Because oral argument will not assist in the decisional process, the motion will be decided based on the parties’ briefing. See E.D. Mich. LR 7.1(f)(2); Fed. R. Civ. P. 78(b).
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juveniles who were convicted of first-degree homicide offenses before Miller and who received mandatory life-without-parole sentences. Mich. Comp. Laws § 769.25a. The statute requires these individuals to be resentenced either to life without parole or to a term of years. Id. § 769.25a(2). Prosecutors seeking imposition of a life-without-parole sentence must file a motion specifying the grounds for imposing such a punishment, id. § 769.25a(4)(b), and the sentencing court must hold a hearing on the motion to consider the factors set forth in Miller and other relevant criteria such as the individual’s institutional record, id. § 769.25(6).
At the time the present motion was filed, 178 class members had been resentenced out of a total class of 373 individuals. Parole Grid, Ex. C to Defs. Mot. (Dkt. 292-4). The vast majority of these class members were resentenced to a term of years. See id.3 Upon being resentenced to a term of years, class members become subject to the parole board’s jurisdiction and are assigned an earliest release date (“ERD”). Eagen Dep., Ex. A to Defs. Mot., at 17 (Dkt. 292-2) (“The [class members] we have jurisdiction of are the resentenced ones. We don’t have jurisdiction over the ones that have not been resentenced.”). Some resentenced class members have been immediately eligible for parole consideration based on their ERDs, while others have not yet reached their ERDs. See Parole Grid. All class members who have reached their ERDs have had parole hearings. Id.
In Count VI of the second amended complaint (“SAC”), Plaintiffs contend that Defendants have deprived them of a meaningful opportunity to obtain release in violation of the Eighth and Fourteenth Amendments by failing to provide “programming, education, training, and
3 Although the parole grid is not completely unambiguous, it appears that only eight class members have been resentenced to life without parole. Parole Grid. An additional eight resentenced class members appear to be serving life sentences, but the parole grid indicates that seven of them will become eligible for parole on a future date and that one of them will require commutation. Id.
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rehabilitation opportunities necessary for Plaintiffs to demonstrate their suitability for release” during resentencing and parole board hearings. SAC ¶¶ 224, 226 (Dkt. 130).4 Specifically at issue is the allegation that class members who are awaiting resentencing are being denied access to “core” programming. See Hill v. Whitmer, No. 10-14568, 2019 WL 3067977, at *2 (E.D. Mich. July 12, 2019). Core programming for inmates consists of thirteen rehabilitative programs and is recommended for individuals meeting certain criteria upon entry into a prison. Id. MDOC policies provide that priority for enrollment in core programming is given to prisoners in closest proximity to their ERD. Id. Prisoners serving life sentences do not have ERDs, and, therefore, are generally not placed in core programs. Id.
On July 12, 2019, the Court entered an opinion and order (the “July 12 Opinion”) granting in part and denying in part Defendants’ first motion for summary judgment with respect to Count VI. Id. at *8. In its opinion, the Court held that Defendants were entitled to summary judgment on Count VI to the extent that Plaintiffs alleged that the denial of access to core programming deprives them of a meaningful opportunity to obtain release at the resentencing stage. Id. at *5. The Court concluded that Plaintiffs had failed to proffer any evidence supporting their theory that judges take completion of core programming into account as part of the resentencing decision. Id. at *4-5. In fact, there was no evidence from any of the 139 resentencing hearings that had occurred as of the date of the July 12 Opinion that core programming played any role in those resentencing decisions. Id.
4 At the time Defendants filed the present motion, Count VI was the sole remaining claim. The SAC has since been superseded by the fourth amended complaint, which asserts a new procedural due process claim challenging the allegedly unreasonable delays in class members’ resentencing hearings. See Fourth Am. Compl. at 75 (Dkt. 316). However, because Count VI remains the same in both versions of the complaint, references will be made to the SAC.
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But the Court also held that lingering factual uncertainties precluded summary judgment as to whether a denial of access to core programming results in deprivation of a meaningful opportunity to obtain release at the parole hearing stage. Id. at *7. Specifically, the Court noted that it was unclear how Defendants’ policy has impacted parole decisions for class members who were granted parole and for class members who were denied parole. Id. at *6 n.5, 7.
In their second motion for summary judgment, Defendants provide additional argument and evidence addressing the concerns identified in the Court’s July 12 Opinion. Specifically, Defendants contend that MDOC’s policies do not exclude class members from accessing core programming. Additionally, Defendants claim to proffer evidence demonstrating that unfulfilled programming recommendations have not prevented class members from obtaining parole. For the reasons discussed below, the Court finds these arguments unpersuasive and concludes that it cannot find, as a matter of law, that Defendants’ denial of access to core programming does not deprive class members of a meaningful opportunity to obtain release.
II. STANDARD OF REVIEW A motion for summary judgment under Federal Rule of Civil Procedure 56 shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when there are “disputes over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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Once the movant satisfies its initial burden of demonstrating the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact. Scott, 550 U.S. at 380; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Scott, 550 U.S. at 380 (quoting Matsushita, 475 U.S. at 586), as the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment,” id. (quoting Anderson, 477 U.S. at 247-248) (emphasis in original); see also Babcock & Wilcox Co. v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017) (“A mere scintilla of evidence or some metaphysical doubt as to a material fact is insufficient to forestall summary judgment.”).
III. ANALYSIS In their motion, Defendants offer two central arguments in support of their position that MDOC’s core programming policies do not deprive class members of a meaningful opportunity to obtain release. First, Defendants contend that class members are not excluded from participating in core programming under MDOC’s policies. Defs. Reply at 4-5 (Dkt. 295). Second, Defendants maintain that unfulfilled core programming recommendations have not prevented class members from obtaining parole. Defs. Mot. at 4-12. In addressing these arguments, the Court first examines the underpinnings and scope of juvenile offenders’ right to a meaningful opportunity to obtain release and concludes that access to rehabilitative programming is an important element of that right. Next, the Court considers the evidence regarding class members’ access to core programming and the role programming has played in class members’ parole decisions. Contrary to Defendants’ arguments, the evidence demonstrates that MDOC’s programming policies deny class members timely access to
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programming, and that programming has served as a basis for denying or deferring parole for some class members. Moreover, the fact that class members are provided multiple opportunities to obtain parole is immaterial, as states must ensure that all opportunities to obtain release are meaningful.
A. Meaningful Opportunity to Obtain Release The Supreme Court held in Graham that sentences of life without parole for juveniles
convicted of nonhomicide offenses are unconstitutional. 560 U.S. at 74. Acknowledging that juveniles are particularly receptive to rehabilitation, the Court noted that policies denying access to rehabilitative services to juveniles serving life sentences render “the disproportionality of the sentence all the more evident.” Id. Accordingly, the Court found that while a state need not guarantee eventual freedom to juveniles convicted of nonhomicide offenses, it must provide them “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.
The Supreme Court extended Graham’s reasoning to “any life-without-parole sentence imposed on a juvenile,” when it held in Miller that statutorily mandated life-without-parole sentences for juvenile homicide offenders are unconstitutional. 567 U.S. at 472. Although Miller did not categorically bar sentencing juvenile homicide offenders to life without parole, the Supreme Court held that the occasions for imposing this harsh penalty would be rare. Id. In Montgomery, the Supreme Court made the Miller holding retroactive, and reaffirmed that sentences of life without parole—while not foreclosed for juvenile homicide offenders—are to be reserved only for those “rarest of children, those whose crimes reflect irreparable corruption.” 136 S. Ct. at 734. Thus, while those juveniles who have demonstrated an inability to reform will continue to serve life sentences, “[t]he opportunity for release will be afforded to those who
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demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Id. at 736.
Read together, Graham, Miller, and Montgomery stand for the proposition that, except for those rare instances where sentences of life without parole are appropriate, juvenile homicide offenders are entitled to a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Other courts have similarly concluded that the right to a meaningful opportunity to obtain release extends to all but the most incorrigible juvenile homicide offenders. See, e.g., Brown v. Precythe, No. 17-04082, 2018 WL 4956519, at *6-7 (W.D. Mo. Oct. 12, 2018) (holding that juvenile homicide offenders were entitled to a meaningful opportunity for release); Md. Restorative Justice Initiative v. Hogan, No. ELH-16-1021, 2017 WL 467731, at *21 (D. Md. Feb. 3, 2017) (noting the “promise in Graham and Montgomery that a meaningful opportunity for release extends to all juvenile offenders, except for those whose crimes reflect permanent incorrigibility” (internal marks omitted)).5
Additionally, because the holdings in Graham and Miller were limited to juvenile offenders, the entitlement to a meaningful opportunity for release is unique to juveniles and does not extend to adult offenders. See Miller, 567 U.S. at 479; Graham, 560 U.S. at 74-75. Indeed, Defendant Eagen acknowledged during his deposition that class members are entitled to a meaningful opportunity to obtain parole, a different standard than that which applies to adult offenders. Eagen Dep. at 212. This distinction is premised on the diminished moral culpability of juveniles—based on their lack of maturity, underdeveloped sense of responsibility, and
5 Defendants advanced this very position on appeal before the Sixth Circuit. Br. for Defs.Appellees at 41, Hill v. Snyder, Sixth Circuit Case No. 17-1252 (Dkt. 24) (“And, while the state is not required to guarantee eventual freedom, in those cases for which a life without parole sentence is not appropriate it must provide some meaningful opportunity for release based on demonstrated maturity and rehabilitation.”). Thus, there is no dispute regarding this issue.
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susceptibility to negative influence and outside pressures, as compared with adults. Graham, 560 U.S. at 68. Moreover, it has been recognized that juvenile offenders have greater prospects for reform and rehabilitation. Id. at 74; Miller, 567 U.S. at 471.
As juvenile homicide offenders, class members in the present action are entitled to a meaningful opportunity to obtain release, unless they are determined upon resentencing to be so incapable of reform that a sentence of life without parole is warranted. Thus, there is no doubt that those class members who have been resentenced to a term of years are entitled to a meaningful opportunity to obtain release. For those 195 class members still awaiting resentencing, it is uncertain whether they will be resentenced to life without parole or to a term of years. However, because the Supreme Court has repeatedly emphasized that life-without-parole sentences are appropriate only in the rarest of juvenile cases, it may be compellingly inferred that the overwhelming majority of class members will be resentenced to a term of years and, consequently, are entitled to a meaningful opportunity for release.
What is the scope of this right in the context of rehabilitative programming? There is limited authority examining the issue in the context of juvenile offenders’ access to rehabilitative programming. Two courts have addressed juvenile offenders’ claims alleging deprivation of the right to a meaningful opportunity to obtain release based on their exclusion from rehabilitative programming. In Greiman v. Hodges, 79 F. Supp. 3d 933, 935 (S.D. Iowa 2015), the plaintiff was a juvenile offender resentenced to life with the possibility of parole. A prison policy allegedly required the plaintiff to complete a sex offender program before he could be released on parole; however, because the plaintiff did not have a defined discharge date due to his life sentence, he was ineligible for the program—prompting his suit that the policy violated the Eighth Amendment. Id. at 936. In denying the defendants’ motion to dismiss this claim, the court found that because
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the department of corrections and parole board “require sex offender treatment as a condition of parole eligibility, Plaintiff is, in effect, denied not just of a meaningful opportunity for parole; he is denied any opportunity for parole.” Id. at 944 (emphasis in original).
In Bonilla v. Iowa Board of Parole, 930 N.W.2d 751, 760 (Iowa 2019), the Supreme Court of Iowa considered a petition for judicial review of a ruling by the parole board, in which the petitioner advanced procedural challenges to certain aspects of the parole process. One of these challenges involved the petitioner’s claim that the parole board deprived him of a meaningful opportunity to obtain release insofar as he was denied access to rehabilitative programming recommended by the board. Id. at 785.6 Specifically, the petitioner alleged that he could not be considered seriously for parole until he completed the programming, but that he could not gain access to the program until he was being seriously considered for parole. Id. at 785. In evaluating this claim, the court stated:
If the state, through the Board, wishes to condition release upon successful completion of certain programing such as [sex offender programming], the department of corrections cannot unreasonably withhold such programming from a juvenile offender. Otherwise, the state could effectively deprive a juvenile offender of a meaningful opportunity to show maturity and rehabilitation by establishing release criteria that the state prevents the juvenile offender from meeting. The department of corrections does not have a pocket veto over the release of a juvenile offender through the withholding of services required by the Board for the release of a juvenile offender. Id. at 786. The court affirmed the district court’s dismissal of the claim on the merits, recognizing that the parole board had only limited authority over the department of corrections. Id. However, the court further stated that juvenile offenders may file claims against the department of corrections if it fails to act reasonably regarding programming. Id. Thus, where a favorable parole decision
6 Although the court held that the petitioner failed to preserve his as-applied challenges to the parole process, it appears to have construed this claim as a facial challenge. Id. at 766, 785-786.
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is conditioned on completion of programming, a state is constitutionally obligated to provide the juvenile offender access to such programming. See id.
Greiman and Bonilla both underscore the significant role programming plays in parole decisions and, consequently, the impact access to programming can have on a juvenile offender’s meaningful opportunity to obtain release. This impact was confirmed in a thorough study of the California parole system, which found that noncompletion of rehabilitative programming frequently served as a basis for denying parole, even where the parole board expressly recognized that the juveniles were ineligible for these programs.7
Accordingly, access to the very programming that enables juvenile offenders to demonstrate their rehabilitation can be a fundamental component of a meaningful opportunity to obtain release. Therefore, in evaluating whether class members in the present case are being denied a meaningful opportunity to obtain release, the Court must examine (i) whether class members are denied access to core programming, and (ii) the evidence submitted regarding the role core programming plays in the Michigan Parole Board’s decisions.
B. Class Members’ Access to Programming Turning next to the question of class members’ access to programming, Defendants
dispute Plaintiffs’ allegation that MDOC has a policy of excluding prisoners serving life sentences from core programming. Defs. Reply at 4-5. According to Defendants, none of MDOC’s Policy Directives (“PDs”) expressly excludes prisoners serving life sentences from participating in core
7 See Beth Caldwell, Creating Meaningful Opportunities for Release: Graham, Miller, and California’s Youth Offender Parole Hearings, 40 N.Y.U. Rev. L. & Soc. Change 245, 248 (2016). The study examined the transcripts of parole proceedings for juvenile offenders. Id. at 299-289. Based on its findings, the study concluded that “[o]ffering opportunities for young offenders to rehabilitate while they are in prison is fundamental to providing a meaningful opportunity for release,” as it would be impossible for them to demonstrate rehabilitation to the parole board without such access. Id. at 286.
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programming.8 Rather, PD 05.01.100 provides that “[p]risoner placement into these Core programs shall be prioritized by [ERD],” while MDOC Operating Procedure 05.01.100 specifically provides that “[p]risoners serving a term of life can receive program recommendations but will not be enrolled in . . . [core] program enrollment unless approved by the Program Development Unit, OSAS, or MHS,” Operating Procedure 5.01.100, Ex. F to Defs. Reply (Dkt. 295-7). Thus, Defendants maintain, these policies specifically set forth an avenue for prisoners serving life sentences to participate in core programming. Defs. Reply at 5.
Defendants’ argument is unconvincing. Perhaps none of MDOC’s policies expressly prohibits prisoners serving life sentences from participating in core programming. But Defendants prioritize prisoners with the earliest ERDs for placement of programming, while declining to assign ERDs to prisoners serving life sentences. In combination, these practices have the effect of denying timely access to programming to class members awaiting resentencing.
As noted in the July 12 Opinion, the evidence demonstrates that class members “who have yet to be resentenced are denied ‘core’ rehabilitative programming.” Hill, 2019 WL 3067977, at *2. For example, in response to a programming inquiry from one class member approaching his resentencing date, an MDOC official stated, “You are currently a lifer and are unable to participate in these programs.” McNeal Dep., Ex. 5 to Pls. Resp., at 63 (Dkt. 274-5). Likewise, MDOC official Kyle Kaminski acknowledged that because core programming is made available to prisoners based on proximity to their ERDs, “lifers were not at the top of the list to go to programming.” Kaminski Dep., Ex. D to Defs. Mot. for Summ. J., at 41 (Dkt. 267-1).9
8 See https://www.michigan.gov/corrections/0,4551,7-119-1441_44369---,00.html (last visited May 5, 2020). 9 This exhibit does not appear on the docket, as it was filed in the traditional manner.
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Although class members may eventually gain access to core programming after they have been resentenced and receive ERDs, this access may not be timely for those individuals whose parole hearings take place shortly after resentencing. Indeed, as acknowledged by Defendants, those individuals may be unable to complete core programming in advance of parole hearings. See Defs. Mot. at 15-16. Therefore, they would be deprived of a meaningful opportunity to demonstrate their maturity and rehabilitation. Defendants’ argument that all prisoners ultimately have the ability to receive programming with appropriate approvals does not address the priority barrier that Defendants have erected.
C. The Role of Programming in Parole Decisions Next, the Court turns to the issue of whether programming considerations play a role in
parole decisions. Defendants argue that class members are not being deprived of a meaningful opportunity to obtain release because unsatisfied core programming recommendations have not served as a barrier preventing class members from obtaining parole. In support of this argument, Defendants present evidence (i) demonstrating that many class members have been granted parole despite not having satisfied programming requirements, and (ii) illustrating the circumstances leading to parole denials for four individual class members. Defs. Mot. at 4-12. Plaintiffs, in turn, highlight evidence demonstrating that programming does play a significant role in parole determinations. Pls. Resp. at 5-7 (Dkt. 294).
The Court considers evidence regarding the role core programming plays in parole determinations generally, as well as its impact on both class members who have been granted parole and those who have been denied parole.
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1. General Impact Under PD 06.05.100, satisfactory participation in programming results in the addition of one to two points to a prisoner’s parole guidelines score. Deposition testimony from Defendant Washington and MDOC official Robert Kosinski confirms that participation in core programming generally increases the likelihood that parole will be granted, and that programming helps prisoners to avoid misconduct which would weigh against their parole. Washington Dep., Ex. 4 to Pls. Resp. to Mot. for Summ. J., at 82-83 (Dkt. 274-4); Koskinski Dep., Ex. B. to Defs. Mot., at 52-56 (Dkt. 292-3). Washington acknowledged the importance of completing programming in advance of a parole hearing, as it decreases an inmate’s chances of deferral or denial. Washington Dep. at 82-83. And Richard Stapleton, a former MDOC administrator, stated that the parole board often denies release to prisoners who have not completed recommended programming. Stapleton Aff., Ex. 3 to Pls. Supp. Br., ¶ 22 (Dkt. 67-4).10 Defendant Eagan, however, noted that the parole board may, in its discretion, waive programming recommendations for long-term prisoners if that programming appears unnecessary. See Eagen Dep. at 107-110, 133. For example, if a prisoner has served ten years without a substance abuse misconduct ticket, the parole board might waive a recommendation for substance abuse programming. Id. This evidence demonstrates that, overall, programming plays a significant role in parole decisions. Certainly the parole board has the authority to waive programming recommendations as appropriate in individual cases. Nevertheless, Washington and Stapleton confirm that
10 Defendants contend that Stapleton has no personal knowledge regarding the parole board’s current treatment of class members, as MDOC has “updated its policies” since Stapleton’s retirement in 2011. Defs. Reply at 5. But Defendants’ brief does not explain what updating has taken place or how that would undermine Stapleton’s affidavit; nor is the statement in Defendants’ brief substantiated by any affidavit or other supporting documentation. At this stage, his affidavit remains unrebutted.
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noncompletion of core programming recommendations can—and often does—negatively impact parole decisions.
2. Class Members Granted Parole At the time Defendants filed their motion, 178 class members had been resentenced out of a total class of 373 individuals. Parole Grid. Of those 178 resentenced class members, 97 were eligible for parole. See id. Of those 97 class members eligible for parole, 93 (or 95.8%) were released on parole. Id. Only four class members have been denied parole following their first hearing. Id. Of the 93 class members who were granted parole, the evidence submitted does not indicate the total number who had core programming recommendations. But the evidence does show that fifteen had core programming recommendations that were designated as not completed for one of three reasons: (i) the program was designated “waived” by the parole board, (ii) the program was designated “does not meet criteria,” meaning the class member was ineligible for the program based on his or her life sentence, or (iii) the class members were “transferred” (meaning paroled) before completing the program. Relevant Paroled Class Members’ CSX-175s, Ex. U to Defs. Mot. (Dkt. 292-22). The parole board thus granted these class members parole despite their unfulfilled programming recommendations. Accordingly, for these class members, an inability to access core programming did not result in a bar to release. 3. Class Members Denied Parole As described above, four of the 97 class members eligible for parole following resentencing were denied parole. Parole Grid. These four class members were Ronald Williams, Marcus Walker, Terrence Kelly, and Willie Servant. Id. Defendants contend that none of these four class members was denied parole on the basis of unfulfilled core programming requirements and that,
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consequently, these class members were not deprived of a meaningful opportunity to obtain release based on a lack of access to such programming. Defs. Mot. at 6-10.
In the Court’s view, however, this evidence demonstrates the opposite conclusion—that programming served, at least in part, as a basis for three of these class members’ unfavorable parole decisions, with Ronald Williams as the exception.
a. Ronald Williams Ronald Williams was resentenced on December 2, 2016, to 25 to 60 years’ imprisonment for his conviction of first-degree murder. Id. Williams was considered for parole in early 2017, and he received a “no interest” vote on July 26, 2017.11 Williams Review Log, Ex. E to Defs. Mot. (Dkt. 292-6). The notice of this decision does not indicate the reasons for the no interest vote. See Notice of Decision, Ex. F to Defs. Mot. (Dkt. 292-7). However, as argued by Defendants, it is unlikely that the decision was premised on a failure to complete programming requirements, as Williams completed his only core programming recommendation, for substance abuse, in 1994. See Williams CSX-175, Ex. G to Defs. Mot. (Dkt. 292-8). Williams had a second parole hearing on June 27, 2019—at the time the present briefing was completed, Williams was still awaiting a decision. See Parole Grid.
b. Marcus Walker Marcus Walker was resentenced on March 10, 2017, to 30 to 60 years’ imprisonment, and was immediately parole eligible. Parole Grid. Walker had a parole hearing in June 2017 as part of his regular review schedule and another hearing in August 2018 as a result of his resentencing.
11 That is, the parole board denied parole by indicating “no interest” in paroling Williams. See Eagen Dep. at 44.
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Walker Review Log, Ex. I to Defs. Mot. (Dkt. 292-10). After each review, Walker received a vote of no interest. Id.
The summary interview notes made in connection with Walker’s August 2018 parole hearing indicate that he completed his core program recommendation for substance abuse in September 2017. See Walker Summ. Report at 11, Ex. L to Defs. Mot. (Dkt. 292-13); see also Walker CSX-175, Ex. K to Defs. Mot. (Dkt. 292-12). The parole board also noted that Walker “has never tried to get in self help programs and quit GED because he never thought he would be released,” “has not really made [an] effort to get ready for parole,” and had received a misconduct ticket for being involved in a fight the day after his resentencing. Walker Summ. Report at 7. The board denied parole “to give [Walker] time to seriously prepare himself for re-entry [into] the community.” Id. The report also indicates that the board would reconsider Walker for parole early, in two to three years. Id.
Defendants argue that Walker’s parole denial was linked to his recent misconduct ticket, not to programming. Defs. Mot. at 7-8. But the parole board additionally noted Walker’s failure to participate in programming and his lack of effort in preparing for parole, concluding that he required additional time to prepare himself for reentry into the community. These comments indicate that Walker was denied parole, at least in part, to afford him additional time to complete rehabilitative programming. Although the parole board did not specify that they wished to see Walker complete core programming in particular, core programs such as Employment Readiness/Resume Workshop or Thinking for Change are designed to address the parole board’s
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stated concerns and to prepare prisoners for reentry into the community.12 Thus, programming of some kind played a role in Walker’s parole denial.
c. Terrence Kelly Terrence Kelly was resentenced on December 18, 2017, to 35 to 60 years’ imprisonment. Parole Grid. Due to an error in his judgment of sentence, Kelly was considered to be eligible for parole in July 2017; however, he does not become eligible until September 2025. Id. Due to the error, Kelly had a parole hearing on May 14, 2018, during which the board denied parole and indicated it would reconsider him in eighteen months. Id. Although Kelly was considered for parole in error, the circumstances of his denial nevertheless illustrate the board’s considerations in rendering parole determinations. The parole board’s summary interview notes reference Kelly’s serious misconduct for an assault that occurred ten months previously, for which Kelly minimized his culpability. Kelly Summ. Report, Ex. P to Defs. Mot., at 7 (Dkt. 292-17). While the parole board acknowledged that Kelly participated in many self-help programs, it also noted that he was on the waitlist to complete violence prevention programming (“VPP”), a recommendation that had recently been reinstated. Id. at 7, 12. In Defendants’ view, Kelly’s noncompletion of VPP played no role in his parole denial. Defs. Mot. at 9. But the parole board’s notes reflect that Kelly’s denial was premised both on his misconduct for assault—the sort of behavior the VPP is designed to prevent—and on his need to complete VPP. Programming, therefore, played a role in Kelly’s parole decision in two respects. First, Kelly was denied parole on the basis of the very behavior VPP is designed to mitigate.
12 According to MDOC’s website, Thinking for Change “is a behavior change program that includes cognitive restructuring, social skills development and the development of problem solving skills.” See https://www.michigan.gov/corrections/0,4551,7-119--140900--,00.html (last visited May 19, 2020).
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Second, the parole board expressly noted that Kelly was waiting to complete VPP, a recommendation that had been reinstated.
d. Willie Servant Willie Servant was resentenced on May 14, 2018, to 31 to 60 years’ imprisonment, and was immediately parole eligible. Parole Grid. Servant had a parole hearing on July 30, 2018, and the board determined that it would reconsider him after twenty-four months. Id. Servant had a second parole hearing on July 11, 2019, and was awaiting the board’s decision at the time briefing of this matter was completed. Servant Notice of Intent, Ex. T to Defs. Mot. (Dkt. 292-21). In connection with Servant’s first parole hearing, the parole board noted that after denying his guilt for years, Servant now admits his role but “minimizes his responsibility and shifts blame for his choices onto his codefendant.” Servant Notice of Decision, Ex. S to Defs. Mot. (Dkt. 29220). Thus, the board determined that Servant’s “level of insight and accountability are not commensurate with the gravity of his crime.” Id. Servant had no programming recommendations prior to his first parole hearing, but the board recommended that he participate in VPP during his continuance period. See Servant CSX-175, Ex. R to Defs. Mot. (Dkt. 292-19). He completed this program on July 25, 2019. Id. Defendants contend that Servant was denied parole following his first hearing, not because of programming, but because he failed to demonstrate the level of accountability appropriate for his crime. Defs. Mot. at 10. However, the parole board also recommended that Servant complete VPP, indicating that the board’s decision was motivated, at least in part, by an intent to afford Servant time to complete that core programming and a belief that the program was capable of addressing the deficiencies that drove the board’s decision. The Court previously noted in its July 12 Opinion that there was no indication “that any failure by Servant to complete core programming
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led to his denial of release.” Hill, 2019 WL 3067977, at *6. However, at the time the Court rendered that decision, it had not yet received the evidence that the parole board, in fact, recommended that Servant complete VPP.
4. Legal Significance of the Evidence The evidence in the present case confirms that core programming plays a significant role in parole determinations. MDOC policies provide that satisfactory participation in programming results in the addition of points to an inmate’s parole guidelines score, thereby increasing the likelihood that parole will be granted. Further, deposition testimony confirmed that the parole board frequently denies parole to inmates who have not completed programming recommendations. See Stapleton Aff. ¶ 22. The evidence also demonstrates that although an inability to complete core programming recommendations does not necessarily preclude class members from obtaining favorable parole decisions, it has served as a basis for denying or deferring parole for some class members. Fifteen class members were granted parole despite not having satisfied programming recommendations. However, programming served, at least in part, as a basis for Walker’s, Kelly’s, and Servant’s unfavorable parole decisions. And as discussed in the July 12 Opinion, Plaintiffs have adduced evidence demonstrating that Christopher Wiley’s and Lorenzo Harrell’s parole determinations were deferred for six months pending their completion of VPP, although they were both ultimately released. Hill, 2019 WL 3067977, at *7. Given that a lack of core programming has resulted in denials or deferrals of parole, Defendants have not proved that the lack of access to programming will not serve as a barrier preventing at least some of the 195 class members awaiting resentencing from obtaining parole. Because Defendants have failed to present evidence demonstrating that noncompletion of core
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programming never influences parole decisions, they have not established as a matter of law that denying class members access to programming does not deprive them of a meaningful opportunity to obtain release. While it is true that some class members may not need core programming to win parole, that is also irrelevant. All are constitutionally entitled to be equipped to win their parole, even if all do not need to utilize all of the equipment—much like the right of every person charged with a crime to effective counsel, even if certain defendants could prevail with incompetent counsel.
Defendants argue that even if some class members are initially denied parole on the basis of programming, they are thereafter able to complete the required programming and are reconsidered for parole. Defs. Mot. at 13-15. Generally, class members serving term-of-years sentences are eligible for parole reconsideration every one to two years, but may be reconsidered for parole before that time. Eagen Dep. at 158, 160-161. Class members serving life sentences with the possibility of parole must serve a minimum of ten to twenty years before being considered for parole; if they are denied parole, they are reconsidered every five years. Mich. Comp. Laws § 791.234(7)-(8); Eagen Dep. at 27.
To illustrate, Defendants note that Walker’s next parole hearing is scheduled for December 2022, Walker Notice of Decision, Ex. J to Defs. Mot. (Dkt. 292-11), but the parole board indicated a willingness to reconsider him early, in two to three years, Walker Summ. Report at 7. Kelly, in fact, is not eligible for parole until 2025. See Parole Grid. Servant is awaiting a decision following his second parole hearing, which occurred a year after his first. Id. And Wiley and Harrell were both released on parole less than a year after their parole hearings took place. Id. Thus, Defendants maintain that class members who are denied the earliest opportunity to obtain release are not denied their only opportunity. Defs. Mot. at 15.
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But no court has held that a state satisfies its Eighth Amendment obligations so long as some parole hearing is meaningful. The only logical rule—the only one consistent with the constitutional principle at stake—is that a state must ensure that all opportunities to obtain release are meaningful. To hold otherwise would condone parole practices amounting to illusory opportunities for release or “repeated incantations of ritualistic denial.” See Bonilla, 930 N.W.2d 772-773. It would also create uncertainty in the minds of state officials as to exactly when their obligation to satisfy the constitutional standard should commence—creating budgeting, staffing, and other planning challenges.
A rule requiring that all opportunities for release be meaningful recognizes that delay can mean no opportunity at all. An opportunity for release must be “timely realized,” as “‘[t]he prospect of geriatric release, if one is to be afforded the opportunity for release at all, does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation.’” Id. (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013)) (some quotation marks omitted).13 Indeed, one commentator has noted that for an opportunity for release to be meaningful, parole review should come not late in life but rather “at a point in time that provides the prisoner with the chance to live a meaningful life outside of prison.” Sarah French Russell, Review for Release: Juvenile Offenders, State Parole Practices & the Eighth Amendment, 89 Ind. L. J. 373, 407-408 (2014).14
13 Null acknowledged this principle in concluding that lengthy term-of-years sentences are the functional equivalent of life sentences and are, therefore, subject to the protections set forth in Miller. 836 N.W.2d at 71. 14 Professor Russell reasons that “review must occur at a point in time that will give a prisoner a sense of hope about the future and that reflects society’s hope that the prisoner can rejoin society in a meaningful way.” Id. Creating this sense of hope, in turn, motivates rehabilitation efforts and good behavior, whereas “‘[a] young person who knows that he or she has no chance to leave prison before life’s end has little incentive to become a responsible individual.’” Id. (quoting Graham, 560 U.S. at 79).
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Because lifespan is a precarious and wasting asset, the failure to provide meaningful review at a first parole hearing could render future review of limited utility—or preclude meaningful review entirely. If a class member is denied parole based on a failure to complete core programming to which he was denied access, he would be deprived of his first opportunity to obtain release and possibly his only opportunity.
This risk is all the more apparent for class members resentenced later in life. Indeed, Plaintiffs maintain that there are ten class members between the ages of fifty-five and sixty who have yet to be resentenced and who have unfulfilled programming requirements. Pls. Resp. at 2223. These ten class members have already exceeded the average lifespan of a prisoner incarcerated in Michigan. See, e.g., Kelly v. Brown, 851 F.3d 686, 688 (7th Cir. 2017) (Posner, J., dissenting) (noting that the life expectancy for a juvenile offender serving a life sentence in a Michigan correctional facility is 50.5 years). Thus, it is critical that class members be afforded a meaningful opportunity to obtain release during their first parole hearing.
All opportunities to obtain release provided by Defendants, therefore, must be meaningful. As a result, Defendants are not entitled to summary judgment on their theory that class members initially denied parole on the basis of unsatisfied programming recommendations may be provided a meaningful opportunity for release thereafter.
Next, Defendants contend that they are unable to enroll class members awaiting resentencing in core programs based on presumptive ERDs, as county prosecutors are seeking life without parole in the vast majority of these cases. Defs. Reply at 6 (citing List of Class Members Not Resentenced, Ex. G to Defs. Reply (Dkt. 295-8)). Though not expressly stated, Defendants imply that core programming would be unnecessary for those class members who ultimately become ineligible for parole following resentencing.
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But at the present stage, 195 class members await resentencing after their statutorily mandated sentences of life without parole were rendered unconstitutional under Miller and Montgomery. Given the resentencing delays acknowledged in recent briefing, see Defs. Mot. to Dismiss Count VIII at 10-11 (Dkt. 320); Pls. Resp. to Mot. to Dismiss Count VIII at 2 (Dkt. 322), it is unlikely that these class members are to be resentenced imminently. In the meantime, it would be inequitable to deprive all class members awaiting resentencing access to core programming simply because some may become ineligible for parole—particularly in light of the Supreme Court’s ruling that sentences of life without parole must be reserved for only those rare juvenile offenders “whose crimes reflect permanent incorrigibility.” See Montgomery, 136 S. Ct. at 734. The Court, therefore, rejects Defendants’ argument.
Finally, Defendants argue that, in light of the limited enrollment capacity for core programming, prioritizing enrollment of class members awaiting resentencing would harm other prisoners who may be placed lower on the waiting list. Defs. Reply at 6-7. This argument, however, concerns the structure of any remedy that might ultimately be ordered, and not whether relief is unjustified as a matter of law. That is, the question of which prisoners are entitled to the greatest priority for enrollment in core programming may well present competing equities, but it does not undermine the validity of the class members’ claim.
Defendants, therefore, have not established that, as a matter of law, their policy of denying class members access to core programming does not result in a deprivation of their right to a meaningful opportunity to obtain release.
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IV. CONCLUSION

For the reasons stated above, Defendants’ second motion for summary judgment with

respect to Count VI is denied (Dkt. 292).

SO ORDERED.

Dated: June 2, 2020 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

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EXHIBIT 1

Case 2:10-cv-14568-MAG-RSW ECF No. 342-2 filed 09/28/20 HILL, et al. v. WH1I9TMER, et al.
LIST OF CLASS MEMBERS

128535 COOK ROBERT CHARLES 137278 MORTON ROBERT 138245 COTTINGHAM KEVIN 149597 CARTER KENNETH RAY 162243 GARRETT ALBERT LEE 165773 ANDERSON MICHAEL 166007 DUKES ROBERT LOUIS 166420 DAVIS DONNIE JAY 167106 DANIEL CHARLES EDWARD 168548 TOLBERT RONALD 168550 JACKSON FONZA DAVID 168552 WILLIAMS RONNIE LYNN 169924 POWELL CHRISTOPHER 170935 PORTER DAREN 171785 PORTER JAMES DEWEY IV 175566 RICHEY SHANE PATRICK 179552 PORTER CHARLES DENNIS JR 182117 RATA SCOTT ANDREW 182264 TOLLIVER DEXTER 182685 BRYANT WILLIAM 186487 ANDERSON KENNETH 189283 MORRIS TERRY 190782 BENJAMIN WILLIE 192009 BANKS MELVIN 194057 BLACK DONYELLE MICHAEL 195160 PATTERSON MICHAEL EARL 198334 TAYLOR JAMES BOISE 201545 GILL CLIFTON 201721 MARTIN JONATHAN DAVID 201907 JEWELL HENRY DUANE 203116 PAREDES EFRAN JR 203782 EDWARDS MICHAEL 207286 JACKSON JOHN HENRY 208079 CALLOWAY ANDRE M 208373 JOHNSON JAMAR DAMON 208665 PASSENO JOSEPH ANDREW 208666 MICHAELS BRUCE CHRISTOHPHER 209814 BONELLI ANTHONY J 209927 HARRIS SHAWN 211451 ALLORE JERRY ALVIN JR 211512 GRAY PATRICK JAY 214984 MILLER KISHAN 217778 BLACK AMY LEE 217934 WATERFORD VICTOR LAMAR 221171 BASSETT THOMAS 221288 BAKER DARYLE 225054 JENNINGS ERVIN LEE

Oakland Wayne Oakland Wayne Wayne Muskegon Muskegon St. Joseph Wayne Wayne Wayne Wayne Oakland Wayne St. Clair Genesee Jackson Macomb Saginaw Wayne Wayne Genesee Wayne Wayne Oakland Kent Oakland Wayne Oakland Muskegon Berrien Genesee Genesee Wayne Oakland Oakland Oakland Oakland Wayne Saginaw Kalamazoo Wayne Muskegon Wayne Wayne Kalamazoo Wayne

PageID.7308

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Page 1 of 4

Case 2:10-cv-14568-MAG-RSW ECF No. 342-2 filed 09/28/20 HILL, et al. v. WH1I9TMER, et al.
LIST OF CLASS MEMBERS

225614 ANDERSON ROBERT D 232703 GERMAN ROBERT L 233439 HAYNES DEON LATROY 233924 WALKER WILLIAM RAY 234311 SHARP JENARD EDWARD 234427 NEILLY WILLIAM EDWARD 235019 POLK VICTOR LEE 235021 ADAMS STANLEY JAMES 236302 JOHNSON SHAVANTE 236305 CHEEKS CLINTON 237761 PAYNE ANTONIO DUANE 238588 LAUNSBURRY STEPHEN N 239339 WESLEY TAVARES 240464 SCOTT MICHAEL 240689 DEBARDELABEN WILLIE 243169 SYMONDS JASON BENJAMIN 244473 FUSON JAMES DEAN 244601 HO MING C 246866 BURDIS DOMINIC PAUL 247926 SWORD SEAN 249210 PEREZ JUAN J 250616 GRANDION BRIAN L 250980 CARTER PAUL 251228 MARTIN BENSON L 251329 PATTON WILLIS L 252358 QUALLS YUSEF 252622 MITCHELL CHRISTOPHER B 252806 WYRICK DEVON LEE 253728 MELFI DAVID MICHAEL 256195 MARTIN ALLAN GENE-REEDER JR 257297 MATTHEWS EDWARD M 258660 POWELL SHANNON L 259094 GIVENS ANTHONY JOVAN 260107 BELL NATHAN GREGORY 260160 WILLIAMS SHYTOUR TONRAY 260818 TREMBLE TJ JAMES 260916 ABBATOY MARK ANTHONY 261275 CRUZ FEDERICO LUIS 261367 JOHNSON DARNELL DEVON 265168 POWELL TIEREE T 265390 WILSON ROBERT 266511 REYES TYRONE LEE 270103 MCCRADY TERRENCE LEE 270321 SHUMAN DOUGLAS S 270825 HAYWOOD LONNELL V 270992 MARTINEZ ANTHONY 274787 WHITTINGTON ELLIOT LASHON

Oakland Oakland Saginaw Wayne Wayne Kalamazoo Genesee Genesee Wayne Wayne Macomb Kent Wayne Wayne Saginaw Calhoun Wayne Oakland Bay Oakland Oakland Oakland Kent Oakland Oakland Wayne Saginaw Kalamazoo Genesee Berrien Oakland Wayne Berrien Genesee Saginaw Arenac Berrien Kent Cass Oakland Muskegon Genesee Genesee St. Joseph Wayne Wayne Saginaw

PageID.7309

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Page 2 of 4

Case 2:10-cv-14568-MAG-RSW ECF No. 342-2 filed 09/28/20 HILL, et al. v. WH1I9TMER, et al.
LIST OF CLASS MEMBERS

277651 WALKER JEROME 278182 ESPIE JOHN RONALD 279609 JACKSON DAMON ANDREW 283097 PETTY GREGORY 283528 WEBB OLIVER IV 288794 GONZALEZ DANIEL JESSE 293586 HYNES CHRISTOPHER W 294293 HAYWOOD LAMAR A 297874 HALL CHAVEZ 302122 MCLEMORE PATRICK JAMES 304730 OSBORNE MARC ANTHONY 308045 LOGAN AKIL L 313560 COPELAND CORNELIUS C 316482 GONZALEZ MARK AARON 316846 BURNS RECHO 320502 PRINCE ROBERT SAMPSON 324495 TILLMAN TRAVIS 370249 ROBINSON KEVIN 372355 WILLIAMS LEON 375597 WALKER MARLON DEWAYNE 384572 CHAPMAN ANTHONY JOSEPH 403858 DAVIS JAJUAN L 409968 WILLIAMS FREDERICK 410196 HINDS ROBERT T 424363 POWELL CORDELL 459953 KIRKSEY MICHAEL LANCE 468515 RODGERS EARL 485040 SIESLING JON DONALD 487692 BURNS-PERRY BRANDON JUSTIN 492717 COLLIER LARKETA 503492 SWANIGAN JARRETT WADE 516680 FIELDS ANTHONY 594095 HILLS MICHAEL REID 595067 JACKSON CHRISTOPHER EUGENE 599905 DUPURE NICOLE ANN 615809 HERNANDEZ LOUIS FERNANDO 618518 GILBERT NATHANIEL TYRONE 623369 CARP RAYMOND CURTIS 625984 NICHOLS ADRIAN WENDELL 650315 MOORE MARK DEKHAIRA 652228 WALKER JERRY O'KEITH 656895 MCCONNELL ANGELA RENEE 659241 WOOLFOLK DEANDRE MARTEZ 660230 BLACKSHERE JUSTIN CHRISTOPHER 665309 HAWKINS DEANTE 685577 JOHNSON DEQUAVIOUS TRAYONNE 687570 ORLEWICZ JEAN PIERRE

Wayne Shiawassee Kent Wayne Saginaw Saginaw Clinton Wayne Calhoun Genesee Kent Oakland Oakland Genesee Wayne Macomb Wayne Muskegon Wayne Muskegon Montcalm Oakland Wayne Wayne Wayne Oakland Wayne Kent Oakland Wayne Wayne Wayne St. Clair Oakland Macomb Wayne Macomb St. Clair Oakland Wayne Genesee Kalamazoo Wayne Wayne Wayne Saginaw Wayne

PageID.7310

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Page 3 of 4

Case 2:10-cv-14568-MAG-RSW ECF No. 342-2 filed 09/28/20 HILL, et al. v. WH1I9TMER, et al.
LIST OF CLASS MEMBERS

687791 COMMIRE SHAWN MICHAEL 692728 MURRAY ODIES ARDAY 705258 MAXEY KEITH LENARD 744816 MORTON WILLIAM 748594 MCCLOUD THOMAS JAY JR 785056 MCDADE DALLAS AUGUSTA JR 788526 BELTON JONATHAN 790800 WARREN DEVONTE 791795 KEY ELIJAH DUJUAN 793937 HOWARD DEONTE 796157 STEWART DEQUARIUS DEVONTAE 807416 STEPHENS JUSTIN DEWAYNE 831271 LOVE MENDO ROMAN 846544 WILLIAMS TAYWON KESHAUN 857789 TENNILLE TIMOTHY 868066 MORAN SEMAJ 869215 KING QUINTIN 876508 CAVAZOS FRANCISCO 931296 HICKERSON JONATHAN 940418 HYATT KENYA 949384 GARAY VICTOR

Bay Kalamazoo Wayne Wayne Oakland Kalamazoo Oakland Kent Wayne Wayne Berrien Ionia Wayne Wayne Wayne Oakland Wayne Oakland Oakland Genesee Kalamazoo

PageID.7311

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Page 4 of 4

 
 CLOSED,LR11.2_NOTICE,REOPENED,reassigned
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:10-cv-14568-MAG-RSW

Hill et al v. Whitmer et al Assigned to: District Judge Mark A. Goldsmith Referred to: Magistrate Judge R. Steven Whalen
Magistrate Judge David R. Grand (Settlement) Case in other court: U.S. Court of Appeals - Sixth
Circuit, 13-02661/13-02705
U.S. Court of Appeals - Sixth Circuit, 16-02003
U.S. Court of Appeals - Sixth Circuit, 17-01252
U.S. Court of Appeals - Sixth Circuit, 17-01252
U.S. Court of Appeals - Sixth Circuit, 18-01418
U.S. Court of Appeals - Sixth Circuit, 18-01418 Cause: 42:1983 Civil Rights Act

Date Filed: 11/17/2010 Date Terminated: 11/17/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Henry Hill TERMINATED: 07/15/2011

represented by Bonsitu A. Kitaba American Civil Liberties Union of Michigan 2966 Woodward Ave Detroit, MI 48201 313-578-6823 Email: Bkitaba@aclumich.org ATTORNEY TO BE NOTICED

Daniel S. Korobkin American Civil Liberties Union of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED

Ezekiel R. Edwards The American Civil Liberties Foundation 125 Broad Street 18th Floor New York, NY 10004-2400 212-549-2610 Fax: 212-549-2651 Email: eedwards@aclu.org ATTORNEY TO BE NOTICED
Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615-2407 Email: mjsteinb@umich.edu TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti Reosti & Sirlin, P.C. 23880 Woodward Avenue Pleasant Ridge, MI 48069-1133 248-691-4200 Fax: 248-691-4207 Email: ron.reosti@gmail.com ATTORNEY TO BE NOTICED
Steven M. Watt American Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212-519-7870 Fax: 212-549-2652 Email: swatt@aclu.org ATTORNEY TO BE NOTICED
Deborah A. LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104 734-996-5620

Plaintiff Jemal Tipton TERMINATED: 07/15/2011
Plaintiff Damion Todd TERMINATED: 07/15/2011

Email: deblabelle@aol.com ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bobby Hines TERMINATED: 07/15/2011

Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kevin Boyd TERMINATED: 07/15/2011
Plaintiff Bosie Smith TERMINATED: 07/15/2011

represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019

Plaintiff Jennifer Pruitt TERMINATED: 07/15/2011
Plaintiff

ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Matthew Bentley TERMINATED: 07/15/2011
Plaintiff Keith Maxey

represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Ezekiel R. Edwards (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED

Plaintiff Giovanni Casper
Plaintiff Jean Cintron

Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin

Plaintiff Nicole Dupure
Plaintiff Dontez Tillman

(See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle

Plaintiff Deon Haynes
Plaintiff Lonnell Haywood
Plaintiff Efran Paredes
V. Defendant Jennifer Granholm TERMINATED: 02/12/2019

(See above for address) ATTORNEY TO BE NOTICED
Ronald J. Reosti (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by John L. Thurber MI Dept of Atty Gen MDOC Division P.O. Box 30217 525 W. Ottawa St.

Defendant
Patricia Caruso TERMINATED: 02/12/2019

Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: thurberj@michigan.gov TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich Michigan Department of Attorney General Complex Litigation Division PO Box 30736 Lansing, MI 48909 517-335-7641 Email: froehlichj1@michigan.gov TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell State of Michigan - Attorney General 525 W. Ottawa St. Lansing, MI 48909 517-373-1124 Fax: 517-335-4253 Email: DalzellK@michigan.gov TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909 517-335-3055 Email: nelsonm23@michigan.gov TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
represented by John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED

Defendant Barbara Sampson TERMINATED: 08/30/2011
Defendant Daniel H. Heyns TERMINATED: 02/12/2019

Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
represented by John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
represented by Ann M. Sherman MI Dept of Attorney General P.O. Box 30212 Lansing, MI 48909 517-335-7628 Email: shermana@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Thomas R Combs TERMINATED: 02/12/2019
Defendant Rick Snyder TERMINATED: 02/12/2019

John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
represented by Ann M. Sherman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
represented by Scott A. Mertens MI Dept of Attorney General

MDOC Division 525 W Ottawa PO Box 30217 Lansing, MI 48909 517-335-3550 Fax: 517-335-7157 Email: mertenss@michigan.gov 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 517-335-3055 Fax: 517-335-7157 Email: AG-Complex@michigan.gov TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Ann M. Sherman (See above for address) ATTORNEY TO BE NOTICED
B. Eric Restuccia Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517-335-7628 Email: restucciae@michigan.gov TERMINATED: 08/30/2018 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018

Defendant HEIDI E. WASHINGTON

ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon Michigan Dept of Attorney General MDOC Division 525 W. Ottawa Street P.O. Box 30217 4th Floor Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: trudgeons@michigan.gov ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Ann M. Sherman (See above for address) ATTORNEY TO BE NOTICED
B. Eric Restuccia (See above for address) TERMINATED: 08/30/2018 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address)

Defendant Michael Eagen

TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Lisa M. Geminick State of Michigan - Dept of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: geminickl@michigan.gov ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Ann M. Sherman

Defendant
Bill Schuette TERMINATED: 02/12/2019

(See above for address) ATTORNEY TO BE NOTICED
B. Eric Restuccia (See above for address) TERMINATED: 08/30/2018 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED

Defendant Dana Nessel

Ann M. Sherman (See above for address) ATTORNEY TO BE NOTICED
B. Eric Restuccia (See above for address) TERMINATED: 08/30/2018 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Joseph T. Froehlich (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Kathryn M. Dalzell (See above for address) TERMINATED: 05/23/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/30/2018 ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa M. Geminick (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) ATTORNEY TO BE NOTICED

Defendant Gretchen Whitmer
V. Movant NOVJL Movant Kyle Daniel TERMINATED: 06/20/2014
Interested Party Edward Finley TERMINATED: 11/26/2013 Interested Party Daryl E Smith
Intervenor Patrick Neil Kinney TERMINATED: 08/12/2013

represented by Lisa M. Geminick (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) ATTORNEY TO BE NOTICED
represented by Kyle Daniel 165805 MACOMB CORRECTIONAL FACILITY 34625 26 MILE ROAD NEW HAVEN, MI 48048 PRO SE
represented by Edward Finley 406969 PRO SE
represented by Daryl E Smith 205522 LAKELAND CORRECTIONAL FACILITY 141 FIRST STREET COLDWATER, MI 49036 PRO SE
represented by Patrick Neil Kinney 253729 ALGER MAXIMUM CORRECTIONAL FACILITY

Intervenor
Gary Peters TERMINATED: 08/12/2013

N6141 INDUSTRIAL PARK DRIVE MUNISING, MI 49862 PRO SE
represented by Gary Peters 155318 MICHIGAN REFORMATORY 1342 WEST MAIN STREET IONIA, MI 48846 PRO SE

Date Filed 11/17/2010
11/17/2010 11/17/2010 11/17/2010 11/17/2010
11/18/2010 11/18/2010 12/16/2010 12/16/2010

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645-2718874 - Fee: $ 350. County of 1st Plaintiff: Lapeer - County Where Action Arose: Multi - County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (LaBelle, Deborah) (Entered: 11/17/2010)
2 SUMMONS Issued for *Jennifer Granholm* (LHac) (Entered: 11/17/2010)
3 SUMMONS Issued for *Patricia Caruso* (LHac) (Entered: 11/17/2010)
4 SUMMONS Issued for *Barbara Sampson* (LHac) (Entered: 11/17/2010)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LHac) (Entered: 11/17/2010)
5 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael) (Entered: 11/18/2010)
6 NOTICE of Appearance by Daniel S. Korobkin on behalf of All Plaintiffs. (Korobkin, Daniel) (Entered: 11/18/2010)
7 WAIVER OF SERVICE Returned Executed. Patricia Caruso waiver sent on 11/18/2010, answer due 1/18/2011. (LaBelle, Deborah) (Entered: 12/16/2010)
8 WAIVER OF SERVICE Returned Executed. Barbara Sampson waiver sent on 11/18/2010, answer due 1/18/2011. (LaBelle, Deborah) (Entered: 12/16/2010)

12/22/2010 01/12/2011 01/12/2011 01/12/2011 01/18/2011 01/21/2011 01/23/2011 02/10/2011 02/10/2011
02/28/2011 03/04/2011
03/10/2011
04/01/2011

9 CERTIFICATE of Service/Summons Returned Executed. Jennifer Granholm served on 12/20/2010, answer due 1/10/2011. (LaBelle, Deborah) (Entered: 12/22/2010)
10 NOTICE of Appearance by Margaret A. Nelson on behalf of All Defendants. (Nelson, Margaret) (Entered: 01/12/2011)
11 NOTICE of Appearance by Joseph T. Froehlich on behalf of All Defendants. (Froehlich, Joseph) (Entered: 01/12/2011)
12 MOTION for Leave to File Excess Pages with Brief in Support by All Defendants. (Froehlich, Joseph) (Entered: 01/12/2011)
13 ANSWER to Complaint with Affirmative Defenses by All Defendants. (Nelson, Margaret) (Entered: 01/18/2011)
14 ORDER granting in part 12 Motion for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/23/2011)
15 NOTICE TO APPEAR: Scheduling Conference set for 2/16/2011 11:00 AM before District Judge John Corbett O'Meara, or file Rule 26(f) Plan. (WBar) (Entered: 01/23/2011)
16 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (LaBelle, Deborah) (Entered: 02/10/2011)
17 SCHEDULING ORDER: Discovery due by 8/31/2011 Dispositive Motion Cut-off set for 9/30/2011 Final Pretrial Conference set for 1/11/2012 02:00 PM before District Judge John Corbett O'Meara Trailing Trial Docket set for 2/7/2012 Signed by District Judge John Corbett O'Meara. (Refer to image for additional dates) (WBar) (Entered: 02/10/2011)
18 MOTION to Dismiss or Alternatively, MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Exhibit 1 Bobby Hines) (Nelson, Margaret) (Entered: 02/28/2011)
19 NOTICE of hearing on 18 MOTION to Dismiss or Alternatively MOTION for Summary Judgment. Motion Hearing set for 4/21/2011 02:15 PM before District Judge John Corbett O'Meara. (WBar) (Entered: 03/04/2011)
20 STIPULATION AND ORDER Extending Time to Respond to 18 MOTION to Dismiss or Alternatively MOTION for Summary Judgment; Response due by 4/1/2011. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 03/10/2011)
21 STIPULATION AND ORDER to Allow Plaintiffs to Exceed the Page Limit for their Response to Defendants' Motion to Dismiss - Signed by District Judge John Corbett O'Meara. (FMos) (Entered: 04/01/2011)

04/01/2011
04/04/2011 04/08/2011 04/14/2011 04/18/2011
04/21/2011
04/28/2011 07/13/2011 07/13/2011 07/13/2011 07/15/2011 07/15/2011 07/18/2011

22 RESPONSE to 18 MOTION to Dismiss or Alternatively MOTION for Summary Judgment Plaintiffs' Response to Mot. to Dis. filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B) (LaBelle, Deborah) (Entered: 04/01/2011)
23 STIPULATED ORDER Extending Time for Defendants' Discovery Responses - Signed by District Judge John Corbett O'Meara. (FMos) (Entered: 04/04/2011)
24 NOTICE of Appearance by Ezekiel R. Edwards - NOT SWORN on behalf of All Plaintiffs. (Edwards - NOT SWORN, Ezekiel) (Entered: 04/08/2011)
25 NOTICE of Appearance by Steven M. Watt - NOT SWORN on behalf of All Plaintiffs. (Watt - NOT SWORN, Steven) (Entered: 04/14/2011)
26 REPLY to 18 MOTION to Dismiss or Alternatively MOTION for Summary Judgment Entitled: Defendants' Reply Brief by Patricia Caruso, Jennifer Granholm, Barbara Sampson. (Nelson, Margaret) (Entered: 04/18/2011)
Minute Entry - Motion Hearing held on 4/21/2011 re 18 MOTION to Dismiss or Alternatively MOTION for Summary Judgment filed by Patricia Caruso, Barbara Sampson, Jennifer Granholm before District Judge John Corbett O'Meara. Disposition: Taken Under Advisement(Court Reporter Andrea Wabeke) (WBar) (Entered: 04/21/2011)
27 MOTION for Leave to File Amicus Brief by NOVJL. (CGre) (Entered: 04/28/2011)
28 [STRICKEN] REQUEST FOR ADMISISONS, DIRECTED TO ALL DEFENDANTS by All Plaintiffs. (LaBelle, Deborah) Modified on 7/13/2011 (TMcg). (Entered: 07/13/2011)
29 STATEMENT of Supplemental Authority by Patricia Caruso, Jennifer Granholm, Barbara Sampson (Attachments: # 1 Supplemental Authority) (Froehlich, Joseph) (Entered: 07/13/2011)
30 NOTICE of Error re 28 Request. (TMcg) (Entered: 07/13/2011)
31 OPINION AND ORDER granting in part and denying in part 18 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/15/2011)
32 ORDER denying 27 Motion for Leave to File Amicus Brief. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/15/2011)
33 STIPULATED ORDER Amending 17 Scheduling Order,, ( Discovery due by 9/30/2011, Dispositive Motion Cut-off set for 10/31/2011)

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07/28/2011
08/05/2011
08/24/2011 08/30/2011 08/30/2011 11/14/2011
01/10/2012 01/12/2012 01/25/2012

Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/18/2011)
34 MOTION for Certificate of Appealability Entitled: Defendants' Motion for Certification of Interlocutory Appeal and Request for Stay Pending Appeal, Brief in Support and Certificate of Service by Patricia Caruso, Jennifer Granholm, Barbara Sampson. (Froehlich, Joseph) (Entered: 07/28/2011)
35 MOTION for Reconsideration re 31 Order on Motion to Dismiss, Order on Motion for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, Henry Hill 2010 Parole Eligibility/Lifer Review Report & Decision of Parole Board) (LaBelle, Deborah) (Entered: 07/28/2011)
36 RESPONSE to 34 MOTION for Certificate of Appealability Entitled: Defendants' Motion for Certification of Interlocutory Appeal and Request for Stay Pending Appeal, Brief in Support and Certificate of Service PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR CERTIFICATE OF APPEALABILITY AND REQUEST FOR STAY PENDING APPEAL filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/05/2011)
37 NOTICE by All Defendants of Automatic substitution of parties (Nelson, Margaret) (Entered: 08/24/2011)
38 STIPULATION AND ORDER Staying 33 Amended Scheduling Order. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/30/2011)
39 Order Substituting Parties and Amending Case Caption. Daniel H. Heyns and Thomas R Combs added. Barbara Sampson terminated. Signed by District Judge John Corbett O'Meara. (PMil) (Entered: 08/30/2011)
40 SUPPLEMENTAL BRIEF re 36 Response to Motion, 34 MOTION for Certificate of Appealability Entitled: Defendants' Motion for Certification of Interlocutory Appeal and Request for Stay Pending Appeal, Brief in Support and Certificate of Service filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 11/14/2011)
41 ORDER denying 35 Motion for Reconsideration. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/10/2012)
42 ORDER denying 34 Motion for Certification of Interlocutory Appeal. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/12/2012)
43 STIPULATION AND ORDER to Amend Complaint and Revise Scheduling Order, ( Discovery due by 8/31/2012, Dispositive Motion Cut-off set for 9/30/2012, Final Pretrial Conference set for 1/23/2013

02/01/2012
02/06/2012 02/07/2012 02/21/2012 02/21/2012 03/30/2012 06/25/2012 07/11/2012 08/07/2012 08/07/2012 08/08/2012 08/20/2012

02:00 PM before District Judge John Corbett O'Meara, Trailing Trial Docket set for 2/5/2013) Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/25/2012)
44 [DOCUMENT TITLED FIRST AMENDED COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF] ANSWER to Complaint First Amended Complaint for Declaratory and Injunctive Relief by All Plaintiffs. (LaBelle, Deborah) Modified on 2/21/2012 (SSch). (Entered: 02/01/2012)
REQUEST for SUMMONS for Thomas R Combs, Daniel H. Heyns, Rick Snyder. (LaBelle, Deborah) (Entered: 02/06/2012)
45 SUMMONS Issued for *Thomas R Combs, Daniel H. Heyns, Rick Snyder* (KKra) (Entered: 02/07/2012)
46 STIPULATION AND ORDER Applying Court's July 15, 2011 Opinion and Order to 44 Amended Complaint, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/21/2012)
47 ANSWER to 44 Answer to Complaint and Affirmative Defenses by All Defendants. (Nelson, Margaret) (Entered: 02/21/2012)
48 STIPULATED ORDER Extending Discovery Responses, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/01/2012)
49 NOTICE TO APPEAR: Status Conference set for 7/11/2012 01:45 PM before District Judge John Corbett O'Meara (SSro) (Entered: 06/25/2012)
Minute Entry - Status Conference held (not on the record) on 7/11/2012 before District Judge John Corbett O'Meara. (WBar) (Entered: 07/11/2012)
50 MOTION for Summary Judgment and Equitable Relief & Brief in Support by All Plaintiffs. (Attachments: # 1 Exhibit People v. Jones, Exhibit 1) (LaBelle, Deborah) (Entered: 08/07/2012)
51 MOTION to Expedite Plaintiffs' Motion for Summary Judgment & Equitable Relief by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/07/2012)
52 NOTICE of hearing on 50 MOTION for Summary Judgment and Equitable Relief. Motion Hearing set for 9/20/2012 02:00 PM before District Judge John Corbett O'Meara (WBar) (Entered: 08/08/2012)
53 ORDER Granting 51 MOTION to Expedite Plaintiffs' Motion for Summary Judgment & Equitable Relief. Briefing Schedule re 50 MOTION for Summary Judgment: Response due by 8/28/2012, Reply due by 9/4/2012. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/20/2012)

08/28/2012 09/04/2012 09/17/2012
09/20/2012 10/03/2012
10/12/2012 10/16/2012 11/19/2012 11/28/2012

54 RESPONSE to 50 MOTION for Summary Judgment and Equitable Relief & Brief in Support filed by Patricia Caruso, Thomas R Combs, Jennifer Granholm, Daniel H. Heyns, Rick Snyder. (Nelson, Margaret) (Entered: 08/28/2012)
55 REPLY to Response re 50 MOTION for Summary Judgment and Equitable Relief & Brief in Support and Response to Defendants' CrossMotion for Summary Judgment filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 09/04/2012)
56 REPLY to 55 Reply to Response to Motion with Certificate of Service by Patricia Caruso, Thomas R Combs, Jennifer Granholm, Daniel H. Heyns, Rick Snyder. (Attachments: # 1 Index of Exhibits A-B, # 2 Exhibit A Michigan Supreme Court Order, File No. 144384; dated 09/07/12, # 3 Exhibit B - Michigan Court of Appeals Order, File No. 307758; dated 08/09/12) (Froehlich, Joseph) (Entered: 09/17/2012)
Minute Entry - Motion Hearing held on 9/20/2012 re 50 MOTION for Summary Judgment and Equitable Relief, before District Judge John Corbett O'Meara. Disposition: Taken Under Advisement(Court Reporter Andrea Wabeke) (WBar) (Entered: 09/20/2012)
57 TRANSCRIPT of Motion Hearing held on 9/20/2012. (Court Reporter Andrea Wabeke) (Number of Pages: 23) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/24/2012. Redacted Transcript Deadline set for 11/5/2012. Release of Transcript Restriction set for 1/2/2013. Transcript may be viewed at the court public terminal or purchased through the Court Reporter at 248.867.2842 or www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Wabeke, A) (Entered: 10/03/2012)
58 STATEMENT of Supplemental Authority by Thomas R Combs, Daniel H. Heyns, Rick Snyder (Attachments: # 1 Attachment: Geter v State of Florida) (Froehlich, Joseph) (Entered: 10/12/2012)
59 STATEMENT of Plaintiffs' Response to Defendants' Supplemental Authority by All Plaintiffs (Attachments: # 1 Exhibit Geter v. State, # 2 Exhibit Gonzalez v. State) (LaBelle, Deborah) (Entered: 10/16/2012)
60 STATEMENT of Supplemental Authority by Thomas R Combs, Daniel H. Heyns, Rick Snyder (Attachments: # 1 Exhibit Attachment to Supplemental Authority) (Froehlich, Joseph) (Entered: 11/19/2012)
61 STATEMENT of Plaintiffs' Supplemental Authority by All Plaintiffs (Attachments: # 1 Exhibit People v. Carl Williams Opinion) (LaBelle, Deborah) (Entered: 11/28/2012)

01/16/2013 01/30/2013 01/30/2013 02/14/2013 02/21/2013 02/28/2013 02/28/2013 03/01/2013
03/11/2013 03/13/2013 03/13/2013

TEXT-ONLY NOTICE: Joint Final Pretrial Order Deadline, Final Pretrial Conference on 1/23/2013, and Trailing Trial Term are Cancelled re 43 Stipulation and Order; until after a ruling on the pending motion for summary judgment. (WBar) (Entered: 01/16/2013)
62 OPINION AND ORDER granting in part and denying in part 50 Motion for Summary Judgment; and Denying Defendants' Cross-Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/30/2013)
Set Deadlines: Plaintiffs' Brief due 3/1/2013; Defendants' Response due by 3/22/2013; Plaintiffs' reply due by 3/29/2013. (WBar) (Entered: 01/30/2013)
63 MOTION for entry of final judgment or alternatively certification of interlocutory appeal and request for stay pending appeal with brief in support by Patricia Caruso, Thomas R Combs, Jennifer Granholm, Daniel H. Heyns. (Froehlich, Joseph) (Entered: 02/14/2013)
64 RESPONSE to 63 MOTION for entry of final judgment or alternatively certification of interlocutory appeal and request for stay pending appeal with brief in support filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 02/21/2013)
65 MOTION to Intervene by Patrick Neil Kinney. (DWor) (Entered: 03/01/2013)
66 INTERVENOR COMPLAINT filed by Patrick Neil Kinney against Thomas R Combs, Daniel H. Heyns, Rick Snyder. (DWor) (Entered: 03/01/2013)
67 SUPPLEMENTAL BRIEF re Set Motion and R&R Deadlines/Hearings, 62 Order on Motion for Summary Judgment Plaintiffs' Briefing in Compliance filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Affidavit of Gonzalo Ubillus, # 3 Exhibit Affidavit of Patricia Caruso, # 4 Exhibit Affidavit of Richard Stapleton, # 5 Exhibit Affidavit of Laurence D. Steinberg, # 6 Exhibit A.Jones Order Granting Relief from Judgment, # 7 Exhibit A.Jones Compas, # 8 Exhibit A.Jones Lifer Interview/Review Log, # 9 Exhibit A.Dunigan Order Denying Defendant's Motion for Reconsideration) (LaBelle, Deborah) (Entered: 03/01/2013)
68 MOTION to Intervene by Ali Sareini. (KKra) (Entered: 03/13/2013)
69 RESPONSE to 65 MOTION to Intervene filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Froehlich, Joseph) (Entered: 03/13/2013)
70 Notice of Determination of Motion Without Oral Argument re 65 MOTION to Intervene, 63 MOTION for entry of final judgment or

03/14/2013 03/18/2013 03/22/2013
03/27/2013 03/29/2013
03/29/2013 03/29/2013
03/29/2013 03/29/2013 04/04/2013 04/15/2013 04/15/2013

alternatively certification of interlocutory appeal and request for stay pending appeal, 68 MOTION to Intervene (WBar) (Entered: 03/13/2013)
71 RESPONSE to 65 MOTION to Intervene filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/14/2013)
72 RESPONSE to 68 MOTION to Intervene filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/18/2013)
73 SUPPLEMENTAL BRIEF re 62 Order on Motion for Summary Judgment filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Attachments: # 1 Exhibit 1-Affidavit of Thomas Combs) (Nelson, Margaret) (Entered: 03/22/2013)
74 RESPONSE to 68 MOTION to Intervene filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Froehlich, Joseph) (Entered: 03/27/2013)
75 MOTION Motion for Ruling on Scope of Summary Judgment Order, or in the Alternative, Motion to Reconsider and Revise July 2011 Order Regarding the Statute of Limitations, or, in the Alternative, Motion to Reinstate Plaintiffs on Equal Protection Grounds re 31 Order on Motion to Dismiss, Order on Motion for Summary Judgment, 62 Order on Motion for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Johnson v. U.S., Government's Response, # 3 Exhibit Plaintiffs' Parole Documents) (LaBelle, Deborah) (Entered: 03/29/2013)
76 MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/29/2013)
77 SUPPLEMENTAL BRIEF re 76 MOTION for Leave to File Excess Pages , 62 Order on Motion for Summary Judgment, 73 Supplemental Brief Plaintiffs' Reply Brief in Compliance with this Court's Order of January 30, 2013 filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/29/2013)
78 REPLY to Response re 65 MOTION to Intervene filed by Patrick Neil Kinney. (DWor) (Entered: 03/29/2013)
79 REPLY to Response re 65 MOTION to Intervene filed by Patrick Neil Kinney. (DWor) (Entered: 03/29/2013)
80 RESPONSE to 73 Supplemental Brief by Patrick Neil Kinney. (KKra) (Entered: 04/05/2013)
TEXT-ONLY ORDER Granting 76 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/15/2013)
81 STIPULATED ORDER Extending Time to Respond to 75 MOTION Motion for Ruling on Scope of Summary Judgment Order, or in the

04/19/2013
04/25/2013
05/21/2013 05/28/2013 06/11/2013 06/24/2013 06/24/2013 06/24/2013
06/25/2013 07/02/2013 07/12/2013 07/16/2013

Alternative, Motion to Reconsider and Revise July 2011 Order; Response due by 4/19/2013. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/15/2013)
82 RESPONSE to 75 MOTION Motion for Ruling on Scope of Summary Judgment Order, or in the Alternative, Motion to Reconsider and Revise July 2011 Order Regarding the Statute of Limitations, or, in the Alternative, Motion to Reinstate Plaintiffs on Equal Protection Ground filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Froehlich, Joseph) (Entered: 04/19/2013)
83 REPLY to Response re 75 MOTION Motion for Ruling on Scope of Summary Judgment Order, or in the Alternative, Motion to Reconsider and Revise July 2011 Order Regarding the Statute of Limitations, or, in the Alternative, Motion to Reinstate Plaintiffs on Equal Protection Ground filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/25/2013)
84 MOTION to Certify Class by All Plaintiffs. (LaBelle, Deborah) (Entered: 05/21/2013)
85 NOTICE of Supplemental Authority by Patrick Neil Kinney (SSch) (Entered: 05/30/2013)
86 ANSWER to 84 MOTION to Certify Class with Brief in Support by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Nelson, Margaret) (Entered: 06/11/2013)
87 SECOND NOTICE of Supplemental Authority by Patrick Neil Kinney (DWor) (Entered: 06/24/2013)
88 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 06/24/2013)
89 REPLY to Response re 84 MOTION to Certify Class , 88 Ex Parte MOTION for Leave to File Excess Pages filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A) (LaBelle, Deborah) (Entered: 06/24/2013)
TEXT-ONLY ORDER Granting 88 Ex Parte MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/25/2013)
90 EX PARTE MOTION for Third-Party Intervenor by Gary Peters. (KKra) (Entered: 07/05/2013)
91 RESPONSE to 90 MOTION for Third-Party Intervener filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 07/12/2013)
92 RESPONSE to 90 MOTION for Third-Party Intervener filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Froehlich, Joseph) (Entered: 07/16/2013)

08/09/2013 08/12/2013 08/12/2013 08/12/2013 08/22/2013 09/06/2013 10/23/2013 10/29/2013 10/29/2013 11/01/2013 11/10/2013 11/11/2013 11/13/2013 11/19/2013 11/26/2013

96 Objections to Defendants' Response re 90 MOTION for Third-Party Intervener filed by Gary Peters. (KKra) (Entered: 08/13/2013)
93 ORDER denying 63 Motion for entry of final judgment or for certification of interlocutory appeal. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/12/2013)
94 ORDER denying 65 Motion to Intervene; denying 68 Motion to Intervene; denying 90 Motion to Intervene. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/12/2013)
95 ORDER granting 75 Motion for Ruling on Scope of Summary Judgment Order; and denying as moot 84 Motion to Certify Class. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/12/2013)
97 THIRD NOTICE of Supplemental Authority by Patrick Neil Kinney (KKra) (Entered: 08/23/2013)
98 MOTION to Intervene by Edward Finley. (DTyl) (Entered: 09/12/2013)
99 STATEMENT of Request for Status Conference by All Plaintiffs (Attachments: # 1 Exhibit 1) (LaBelle, Deborah) (Entered: 10/23/2013)
100 Notice of Determination of Motion Without Oral Argument re 98 MOTION to Intervene (WBar) (Entered: 10/29/2013)
101 NOTICE TO APPEAR: Status Conference set for 11/13/2013 11:00 AM before District Judge John Corbett O'Meara (WBar) (Entered: 10/29/2013)
102 RESPONSE to 98 MOTION to Intervene filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 11/01/2013)
103 AMENDED NOTICE TO APPEAR: Status Conference reset for 11/26/2013 01:30 PM before District Judge John Corbett O'Meara (WBar) (Entered: 11/10/2013)
104 AMENDED NOTICE TO APPEAR: Status Conference reset for 11/13/2013 11:00 AM before District Judge John Corbett O'Meara (WBar) (Entered: 11/11/2013)
Minute Entry for proceedings held before District Judge John Corbett O'Meara: Status Conference held on 11/13/2013 (WBar) (Entered: 11/13/2013)
105 MOTION for Order Plaintiffs' Motion & Brief for Entry of Interim Order of Compliance by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1) (LaBelle, Deborah) (Entered: 11/19/2013)
106 ORDER denying 98 Motion to Intervene. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/26/2013)

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12/05/2013 12/06/2013 12/06/2013 12/10/2013 12/10/2013 12/13/2013 12/17/2013 12/17/2013 12/18/2013 12/19/2013 12/19/2013

TEXT-ONLY CERTIFICATE OF SERVICE re 106 Order on Edward Finley Pris. No. 406969 at (KCF) 16770 S.Watertower Drive, Kincheloe, MI 49788. (WBar) (Entered: 11/26/2013)
107 ORDER Requiring Immediate Compliance with Miller. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/26/2013)
108 NOTICE OF APPEAL by Thomas R Combs, Rick Snyder, Daniel H. Heyns re 95 Order on Motion - Free, Order on Motion to Certify Class, 31 Order on Motion to Dismiss, Order on Motion for Summary Judgment, 107 Order, 62 Order on Motion for Summary Judgment. Fee Status: No Fee Paid. (Nelson, Margaret) (Entered: 12/05/2013)
109 Certificate of Service re 108 Notice of Appeal. (TMcg) (Entered: 12/05/2013)
110 MOTION to Stay Pending Appeal by All Defendants. (Froehlich, Joseph) (Entered: 12/06/2013)
111 MOTION immediate consideration re 110 MOTION to Stay Pending Appeal by All Defendants. (Froehlich, Joseph) (Entered: 12/06/2013)
112 Notice of Determination of Motion Without Oral Argument re 110 MOTION to Stay Pending Appeal; Response due by 12/16/2013 Reply due by 12/19/2013 (WBar) (Entered: 12/10/2013)
Appeal Fee received for 108 Notice of Appeal, filed by Daniel H. Heyns, Rick Snyder, Thomas R Combs in the amount of $ $505.00 - Receipt No. DET062603. (Huff, W.) (Entered: 12/10/2013)
113 RESPONSE to 110 MOTION to Stay Pending Appeal filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 12/13/2013)
114 REPLY to Response re 111 MOTION immediate consideration re 110 MOTION to Stay Pending Appeal filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Nelson, Margaret) (Entered: 12/17/2013)
115 MOTION for Leave to File Excess Pages by Thomas R Combs, Daniel H. Heyns, Rick Snyder. (Nelson, Margaret) (Entered: 12/17/2013)
TEXT-ONLY ORDER Granting 115 MOTION for Leave to File Excess Pages filed by Daniel H. Heyns, Rick Snyder, Thomas R Combs. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/18/2013)
116 ORDER denying 110 Motion to Stay; granting 111 Motion for Immediate Consideration. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/19/2013)
117 NOTICE OF CROSS APPEAL by All Plaintiffs re 31 Order on Motion to Dismiss, Order on Motion for Summary Judgment. Receipt No: 06454428942 - Fee: $ 505 - Fee Status: Fee Paid. (LaBelle, Deborah) (Entered: 12/19/2013)

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06/17/2016

118 Certificate of Service re 117 Notice of Cross Appeal. (TMcg) (Entered: 12/20/2013)
119 ORDER from U.S. Court of Appeals - Sixth Circuit re 117 Notice of Cross Appeal filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron [Appeal Case Number 13-2661] (KKra) (Entered: 12/30/2013)
120 MOTION to Intervene by Kyle Daniel. (PMil) (Entered: 01/14/2014)
121 RESPONSE to 120 MOTION to Intervene filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 01/16/2014)
122 Notice of Determination of Motion Without Oral Argument re 120 MOTION to Intervene (WBar) (Entered: 01/16/2014)
123 TRANSCRIPT of Motion Hearing held on April 21, 2011. (Court Reporter/Transcriber: Andrea Wabeke) (Number of Pages: 22) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 2/11/2014. Redacted Transcript Deadline set for 2/21/2014. Release of Transcript Restriction set for 4/21/2014. 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. (Wabeke, A) (Entered: 01/21/2014)
124 REPLY to Response re 120 MOTION to Intervene filed by Kyle Daniel. (PMil) (Entered: 01/31/2014)
125 ORDER denying 120 Motion to Intervene. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/20/2014)
126 ORDER OF REMOVAL OF ACTION AS A PENDING MATTER, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/23/2014)
127 OPINION and JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 117 Notice of Cross Appeal filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron, 108 Notice of Appeal, filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder [Appeal Case Number 13-2661/13-2705] (Ahmed, N) (Entered: 05/11/2016)
128 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 117 Notice of Cross Appeal filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure,

06/20/2016
06/20/2016 06/20/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/21/2016 06/27/2016 07/05/2016 07/06/2016 07/07/2016

Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron, 127 Appeal Order/Opinion/Judgment, 108 Notice of Appeal, filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder [Appeal Case Number 13-2661/13-2705] (Ahmed, N) (Entered: 06/17/2016)
129 OPINION from U.S. Court of Appeals - Sixth Circuit re 117 Notice of Cross Appeal filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron, 127 Appeal Order/Opinion/Judgment, 108 Notice of Appeal, filed by Thomas R Combs, Daniel H. Heyns, Rick Snyder [Appeal Case Number 13-2661/13-2705] (Ahmed, N) (Entered: 06/20/2016)
130 Second AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Plaintiffs. NEW PARTIES ADDED. (LaBelle, Deborah) Modified on 6/21/2016 (LHos). (Entered: 06/20/2016)
REQUEST for SUMMONS for HEIDI E. WASHINGTON. (LaBelle, Deborah) (Entered: 06/20/2016)
REQUEST for SUMMONS for Michael Eagen. (LaBelle, Deborah) (Entered: 06/21/2016)
REQUEST for SUMMONS for Bill Schuette. (LaBelle, Deborah) (Entered: 06/21/2016)
131 NOTICE TO APPEAR: Status Conference set for 7/5/2016 10:30 AM before District Judge John Corbett O'Meara (WBar) (Entered: 06/21/2016)
132 SUMMONS Issued for *Michael Eagen* (LHos) (Entered: 06/21/2016)
133 SUMMONS Issued for *Bill Schuette* (LHos) (Entered: 06/21/2016)
134 SUMMONS Issued for *HEIDI E. WASHINGTON* (LHos) (Entered: 06/21/2016)
135 Renewed MOTION to Certify Class by All Plaintiffs. (LaBelle, Deborah) (Entered: 06/27/2016)
Minute Entry for proceedings before District Judge John Corbett O'Meara: Status Conference held on 7/5/2016 (Court Reporter: Andrea Wabeke) (WBar) (Entered: 07/05/2016)
136 MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (LaBelle, Deborah) (Entered: 07/06/2016)
137 ORDER Granting 136 MOTION for Temporary Restraining Order; Set Motion Deadline/Hearing as to 136 MOTION for Preliminary Injunction; Response to Motion for Preliminary Injunction due by 7/18/2016, Motion

07/08/2016
07/08/2016 07/11/2016
07/11/2016 07/11/2016 07/11/2016 07/11/2016 07/12/2016 07/13/2016 07/18/2016

Hearing set for 7/28/2016 10:30 AM before District Judge John Corbett O'Meara. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/07/2016)
138 MOTION to Stay re 137 Order, Set Motion and R&R Deadlines/Hearings, Terminate Motions,,, by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Exhibit 1 - McChester v Goodkin) (Nelson, Margaret) (Entered: 07/08/2016)
139 MOTION to Expedite /Immediate Consideration of Motion to Dissolve and/or Stay Temporary Restraining Order by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Nelson, Margaret) (Entered: 07/08/2016)
140 RESPONSE to 138 MOTION to Stay re 137 Order, Set Motion and R&R Deadlines/Hearings, Terminate Motions,,, , 139 MOTION to Expedite /Immediate Consideration of Motion to Dissolve and/or Stay Temporary Restraining Order and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (LaBelle, Deborah) (Entered: 07/11/2016)
141 CERTIFICATE of Service/Summons Returned Executed. HEIDI E. WASHINGTON served on 6/21/2016, answer due 7/12/2016. (LaBelle, Deborah) (Entered: 07/11/2016)
142 CERTIFICATE of Service/Summons Returned Executed. Michael Eagen served on 6/21/2016, answer due 7/12/2016. (LaBelle, Deborah) (Entered: 07/11/2016)
143 CERTIFICATE of Service/Summons Returned Executed. Bill Schuette served on 6/21/2016, answer due 7/12/2016. (LaBelle, Deborah) (Entered: 07/11/2016)
144 AMENDED 140 Response to Motion, by All Plaintiffs Amended Exhibit 1 (LaBelle, Deborah) (Entered: 07/11/2016)
145 NOTICE OF APPEAL by HEIDI E. WASHINGTON, Bill Schuette, Rick Snyder, Michael Eagen re 137 Order,, Set Motion and R&R Deadlines/Hearings,, Terminate Motions,. Fee Status: No Fee Paid. (Nelson, Margaret) (Entered: 07/12/2016)
146 Certificate of Service re 145 Notice of Appeal. (DWor) (Entered: 07/13/2016)
147 MOTION for Partial Summary Judgment and Brief in Support by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - McChester, # 3 Exhibit 2 - Policy Directive, # 4 Exhibit 3 - Grievance Reports) (Nelson, Margaret) (Entered: 07/18/2016)

07/18/2016 07/18/2016 07/19/2016 07/20/2016 07/20/2016 07/20/2016 07/25/2016 07/25/2016
07/25/2016 07/26/2016 07/28/2016 07/28/2016

148 RESPONSE to 136 MOTION for Temporary Restraining Order and Brief in Support filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 McChester) (Nelson, Margaret) (Entered: 07/18/2016)
149 RESPONSE to 135 Renewed MOTION to Certify Class filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Nelson, Margaret) (Entered: 07/18/2016)
Appeal Fee received for 145 Notice of Appeal filed by Michael Eagen, Rick Snyder, HEIDI E. WASHINGTON, Bill Schuette in the amount of $ 505.00 - Receipt No. DET094159. (Huff, W.) (Entered: 07/19/2016)
150 MOTION for Temporary Restraining Order Extend by 14 days by All Plaintiffs. (Korobkin, Daniel) (Entered: 07/20/2016)
151 NOTICE by All Plaintiffs of withdrawal of 150 MOTION for Temporary Restraining Order Extend by 14 days . (Korobkin, Daniel) (Entered: 07/20/2016)
157 ORDER from U.S. Court of Appeals - Sixth Circuit re 145 Notice of Appeal filed by Michael Eagen, Rick Snyder, HEIDI E. WASHINGTON, Bill Schuette [Appeal Case Number 16-2003] (Ahmed, N) (Entered: 07/28/2016)
152 SUPPLEMENTAL BRIEF re 148 Response to Motion, filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - 7/20/16 Order, # 3 Exhibit 2 - People v Hyatt) (Nelson, Margaret) (Entered: 07/25/2016)
153 REPLY to Response re 136 MOTION for Temporary Restraining Order filed by All Plaintiffs. (Attachments: # 1 Exhibit HIll v Snyder, Case 16-2003, # 2 Exhibit People v Henry HIll, # 3 Exhibit People v Kevin Boyd, # 4 Exhibit People v Mark Storey, # 5 Exhibit William Cooke, Warden Recommendation, # 6 Exhibit William Cooke, Parole Board Recommendation) (LaBelle, Deborah) (Entered: 07/25/2016)
154 MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 07/25/2016)
TEXT-ONLY ORDER Granting 154 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/26/2016)
155 NOTICE of Appearance by B. Eric Restuccia on behalf of Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Restuccia, B.) (Entered: 07/28/2016)
Minute Entry for proceedings before District Judge John Corbett O'Meara: Motion Hearing held on 7/28/2016 re 136 MOTION for

07/28/2016 08/03/2016 08/08/2016 08/12/2016 08/15/2016 08/23/2016 09/09/2016 09/12/2016 09/13/2016
09/13/2016 09/27/2016
09/30/2016 09/30/2016

Preliminary Injunction; Disposition: Motion taken under advisement (Court Reporter: Andrea Wabeke) (WBar) (Entered: 07/28/2016)
156 NOTICE of Appearance by Ronald J. Reosti on behalf of All Plaintiffs. (Reosti, Ronald) (Entered: 07/28/2016)
158 OPINION and ORDER Denying 136 MOTION for Preliminary Injunction, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/03/2016)
159 REPLY to Response re 135 Renewed MOTION to Certify Class filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/08/2016)
160 MOTION for Reconsideration re 158 Memorandum Opinion & Order by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/12/2016)
161 STIPULATED ORDER Extending Time to Respond to 147 MOTION for Partial Summary Judgment; Response due by 9/9/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/15/2016)
162 STIPULATED ORDER of Partial Dismissal, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/23/2016)
163 RESPONSE to 147 MOTION for Partial Summary Judgment and Brief in Support filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 09/09/2016)
164 Ex Parte MOTION for Leave to File Excess Pages in Response to Defendants' Motion for Partial Summary Judgment by All Plaintiffs. (LaBelle, Deborah) (Entered: 09/12/2016)
TEXT-ONLY ORDER Granting 164 Ex Parte MOTION for Leave to File Excess Pages in Response to Defendants' Motion for Partial Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/13/2016)
165 NOTICE OF HEARING on 147 MOTION for Partial Summary Judgment. Motion Hearing set for 11/3/2016 10:00 AM before District Judge John Corbett O'Meara (WBar) (Entered: 09/13/2016)
166 STIPULATED ORDER Extending Time and Page Limit to File Reply in Support of 147 MOTION for Partial Summary Judgment; Reply due by 9/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/27/2016)
167 NOTICE of Appearance by Kathryn M. Dalzell on behalf of Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 09/30/2016)
168 REPLY to Response re 147 MOTION for Partial Summary Judgment and Brief in Support filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 09/30/2016)

10/18/2016 11/02/2016 11/15/2016 11/16/2016 11/17/2016 12/08/2016
02/07/2017 02/07/2017 03/09/2017 03/09/2017

169 AMENDED NOTICE OF HEARING on 147 MOTION for Partial Summary Judgment. Motion Hearing reset for 11/3/2016 12:15 PM before District Judge John Corbett O'Meara (WBar) (Entered: 10/18/2016)
170 AMENDED NOTICE OF HEARING on 147 MOTION for Partial Summary Judgment. Motion Hearing reset for 11/17/2016 10:15 AM before District Judge John Corbett O'Meara (WBar) (Entered: 11/02/2016)
171 STATEMENT of Supplemental Authority by All Plaintiffs (Attachments: # 1 Exhibit LeBlanc v Mathena) (LaBelle, Deborah) (Entered: 11/15/2016)
172 RESPONSE to 171 Statement by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 4 - Mich code 791.7715, # 3 Exhibit 5 - Mich Code 791.7716, # 4 Exhibit 6 - Policy Directive) (Dalzell, Kathryn) (Entered: 11/16/2016)
Minute Entry for proceedings before District Judge John Corbett O'Meara: Motion Hearing held on 11/17/2016 re 147 MOTION for Partial Summary Judgment; Disposition: Motion taken under advisement (Court Reporter: Andrea Wabeke) (WBar) (Entered: 11/17/2016)
173 TRANSCRIPT of Motion Hearing held on 11/17/2016. (Court Reporter/Transcriber: Andrea Wabeke) (Number of Pages: 49) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 12/29/2016. Redacted Transcript Deadline set for 1/9/2017. Release of Transcript Restriction set for 3/8/2017. 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. (Wabeke, A) (Entered: 12/08/2016)
174 OPINION and ORDER Granting 147 MOTION to Dismiss, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/07/2017)
175 JUDGMENT, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/07/2017)
176 NOTICE OF APPEAL by All Plaintiffs re 175 Judgment, 174 Memorandum Opinion & Order. Receipt No: 06456127814 - Fee: $ 505 - Fee Status: Fee Paid. (LaBelle, Deborah) (Entered: 03/09/2017)
177 Certificate of Service re 176 Notice of Appeal. (LGra) (Entered: 03/09/2017)

03/30/2017 12/20/2017
01/16/2018 01/16/2018
01/16/2018 01/16/2018 01/19/2018 01/30/2018 01/31/2018 01/31/2018 02/01/2018

178 ORDER from U.S. Court of Appeals - Sixth Circuit re 145 Notice of Appeal filed by Michael Eagen, Rick Snyder, HEIDI E. WASHINGTON, Bill Schuette [Appeal Case Number 16-2003] (Ahmed, N) (Entered: 03/30/2017)
179 OPINION AND JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 176 Notice of Appeal filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron [Appeal Case Number 17-1252] (SKra) (Entered: 12/20/2017)
180 Second MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Exhibit Affidavit of Gonzalo Ubillus) (LaBelle, Deborah) (Entered: 01/16/2018)
181 MOTION for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (LaBelle, Deborah)[WITH MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION] Modified on 1/17/2018 (DPer). (Entered: 01/16/2018)
182 MOTION to Expedite by All Plaintiffs. (LaBelle, Deborah) (Entered: 01/16/2018)
183 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 179 Appeal Order/Opinion/Judgment, [Appeal Case Number 17-1252] (SKra) (Entered: 01/17/2018)
184 ORDER of DISQUALIFICATION and REASSIGNING CASE from District Judge John Corbett O'Meara in Ann Arbor to District Judge Mark A. Goldsmith in Detroit. (SSch) (Entered: 01/19/2018)
185 NOTICE TO APPEAR: Status Conference set for 2/2/2018 10:30 AM before District Judge Mark A. Goldsmith (Grimes, K.) (Entered: 01/30/2018)
186 ANSWER to Amended Complaint with Affirmative Defenses by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Nelson, Margaret) (Entered: 01/31/2018)
Set Deadlines/Hearings: Status Conference set for 2/2/2018 is RESCHEDULED to 9:00 AM before District Judge Mark A. Goldsmith in Conference Room 413B. (Grimes, K.) (Entered: 01/31/2018)
187 RESPONSE to 182 MOTION to Expedite filed by Patricia Caruso, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick

02/02/2018 02/06/2018 02/06/2018 02/06/2018
02/07/2018
02/07/2018
02/14/2018 02/14/2018 02/14/2018

Snyder, HEIDI E. WASHINGTON. (Nelson, Margaret) (Entered: 02/01/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Status Conference held on 2/2/2018 (Sandusky, K) (Entered: 02/05/2018)
188 RESPONSE to 180 Second MOTION to Certify Class filed by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Table of Michigan's credit system) (Dalzell, Kathryn) (Entered: 02/06/2018)
189 MOTION for Leave to File Excess Pages by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Froehlich, Joseph) (Entered: 02/06/2018)
190 RESPONSE to 181 MOTION for Partial Summary Judgment , Declaratory Judgment and Permanent Injunction and Cross Motion for Partial Summary Judgment filed by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Time Credits Table, # 3 Exhibit 2. Policy Directive 03.02.130, # 4 Exhibit 3. Grievance Reports) (Nelson, Margaret) (Entered: 02/06/2018)
TEXT-ONLY ORDER: Defendants' motion for leave to file excess pages (Dkt. 189 ) is granted. Defendants are permitted to file a brief in support of their response to Plaintiffs' motion for partial summary judgment and their cross-motion for partial summary judgment that does not exceed 29 pages. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/07/2018)
TEXT-ONLY ORDER: Counsel must submit to chambers paper copies of all pending motions and responses filed to date by February 9, 2018. Going forward, counsel must submit to chambers paper copies of any future motions, responses, and replies within 24 hours of electronic filing. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/07/2018)
191 REPLY to Response re 180 Second MOTION to Certify Class filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (LaBelle, Deborah) (Entered: 02/14/2018)
192 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 02/14/2018)
193 REPLY to Response re 181 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits,

02/15/2018 02/21/2018 02/21/2018 02/22/2018 02/23/2018 02/27/2018 02/28/2018 03/19/2018 03/22/2018

# 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (LaBelle, Deborah) (Entered: 02/14/2018)
TEXT-ONLY ORDER: Plaintiffs' motion for leave to file excess pages (Dkt. 192 ) is granted. Plaintiffs are permitted to file a reply brief in support of their motion for partial summary judgment that does not exceed 21 pages. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/15/2018)
194 MOTION for Leave to File Excess Pages by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 02/21/2018)
195 REPLY to Response re 181 MOTION for Partial Summary Judgment filed by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 02/21/2018)
TEXT-ONLY ORDER: Defendants' motion for leave to file excess pages (Dkt. 194 ) is granted. Defendants are permitted to file a cross-reply in support of their cross-motion for partial summary judgment that does not exceed 13 pages. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/22/2018)
196 MOTION to Amend/Correct 186 Answer to Amended Complaint Under Fed. R. Civ. P. 15 by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Froehlich, Joseph) (Entered: 02/23/2018)
197 RESPONSE to 196 MOTION to Amend/Correct 186 Answer to Amended Complaint Under Fed. R. Civ. P. 15 filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 02/27/2018)
198 ORDER GRANTING IN PART PLAINTIFFS MOTION TO EXPEDITE (Dkt. 182 )( Motion Hearing set for 3/22/2018 at 02:00 PM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/28/2018)
Set/Reset Deadlines as to 181 MOTION for Partial Summary Judgment , 180 Second MOTION to Certify Class . Motion Hearing set for 3/22/2018 at 02:00 PM before District Judge Mark A. Goldsmith WILL BE HELD IN COURTROOM 228. (Sandusky, K) (Entered: 03/19/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Motion Hearing held on 3/22/2018 re 181 MOTION for Partial Summary Judgment filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean

03/23/2018
03/27/2018 03/28/2018 03/29/2018 03/30/2018 04/09/2018
04/09/2018 04/09/2018 04/11/2018 04/11/2018

Cintron, 180 Second MOTION to Certify Class filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Matthew Bentley, Bobby Hines, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron Disposition: Motion taken under advisement (Court Reporter: David Yarbrough) (Sandusky, K) (Entered: 03/23/2018)
199 MOTION for Leave to File Supplement (UNOPPOSED) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Prosecutor Brief in Wiley, # 3 Exhibit B - Prosecutor Brief in Rucker, # 4 Exhibit C - Wiley's Brief, # 5 Exhibit D - Rucker's Brief, # 6 Exhibit E - AG's Amicus Brief) (Korobkin, Daniel) (Entered: 03/23/2018)
200 RESPONSE to 199 MOTION for Leave to File Supplement (UNOPPOSED) filed by All Defendants. (Dalzell, Kathryn) (Entered: 03/27/2018)
TEXT-ONLY ORDER: Upon review, the Court grants the Motion for Leave to File Supplement (Dkt. 199 ). SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 03/28/2018)
201 MOTION to Stay of Judgment by Patricia Caruso, Thomas R Combs, Michael Eagen, Jennifer Granholm, Daniel H. Heyns, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 03/29/2018)
202 RESPONSE to 201 MOTION to Stay of Judgment filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/30/2018)
203 OPINION & ORDER Granting In Part and Denying In Part Plaintiffs' Motion for Partial Summary Judgment, Declaratory Judgment and Permanent Injunction (Dkt. 181 ), Denying Defendants' Cross-Motion for Partial Summary Judgment (Dkt. 190 ), and Granting Plaintiffs' Second Renewed Motion for Class Certification (Dkt. 180 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/09/2018)
204 FINAL PARTIAL JUDGMENT as to Count V. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/09/2018)
205 OPINION & ORDER Denying Defendants' Motion for Stay (Dkt. 201 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/09/2018)
206 NOTICE OF APPEAL by Patricia Caruso, HEIDI E. WASHINGTON, Bill Schuette, Thomas R Combs, Rick Snyder, Jennifer Granholm, Michael Eagen, Daniel H. Heyns re 204 Judgment. Fee Status: No Fee Paid. (Dalzell, Kathryn) (Entered: 04/11/2018)
207 Certificate of Service re 206 Notice of Appeal. (SKra) (Entered: 04/11/2018)

04/12/2018 04/13/2018
04/18/2018 04/19/2018 04/20/2018 04/20/2018 04/23/2018 04/23/2018 04/26/2018

208 Appeal Fee received for 206 Notice of Appeal filed by Patricia Caruso, Michael Eagen, HEIDI E. WASHINGTON, Jennifer Granholm, Thomas R Combs, Daniel H. Heyns, Rick Snyder, Bill Schuette in the amount of $ $505 - Receipt No. DET113016. (RBog) (Entered: 04/13/2018)
209 TRANSCRIPT of Motion for Summary Judgment & Second Motion to Certify Class held on 3/22/2018. (Court Reporter/Transcriber: David B. Yarbrough) (Number of Pages: 84) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 5/4/2018. Redacted Transcript Deadline set for 5/14/2018. Release of Transcript Restriction set for 7/12/2018. 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. (Yarbrough, David) (Entered: 04/13/2018)
210 ORDER from U.S. Court of Appeals - Sixth Circuit re 206 Notice of Appeal filed by Patricia Caruso, Michael Eagen, HEIDI E. WASHINGTON, Jennifer Granholm, Thomas R Combs, Daniel H. Heyns, Rick Snyder, Bill Schuette [Appeal Case Number 18-1418] (SKra) (Entered: 04/19/2018)
211 MOTION TO EXTEND Time to File Motion for Attorney Fees & Expenses by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/19/2018)
TEXT-ONLY ORDER Requiring Defendants to file any opposition to Plaintiffs' motion to extend time for filing attorney fee motion (Dkt. 211 ) by 4/23/18 at 10 a.m. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (SOso) (Entered: 04/20/2018)
212 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Govorchin, A.) (Entered: 04/20/2018)
TEXT-ONLY ORDER: Plaintiffs' motion to extend time to file a motion for attorney fees (Dkt. 211 ) is granted. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/23/2018)
213 STATEMENT of Certificate of Compliance by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Dalzell, Kathryn) (Entered: 04/23/2018)
214 NOTICE by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON re 203 Order on Motion to Certify Class, Order on Motion for Partial Summary Judgment,, Amended Certificate of Compliance (Dalzell, Kathryn) (Entered: 04/26/2018)

04/26/2018 04/30/2018
05/02/2018 05/02/2018
05/03/2018 05/04/2018 05/09/2018
05/15/2018 05/16/2018 05/22/2018 05/23/2018 05/25/2018 05/25/2018

215 MOTION for Clarification by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 04/26/2018)
216 STIPULATED ORDER OF WITHDRAWAL of Former Assistant Attorneys General Margaret A. Nelson and Joseph T. Froehlich. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/30/2018)
217 ORDER Regarding Reply in Support of Defendants' Motion to Amend/Correct Answer (Dkt. 196 ) ( Reply due by 5/9/2018). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/02/2018)
218 ORDER Regarding Scheduling Conference ( Scheduling Conference set for 5/22/2018 at 04:00 PM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/02/2018)
219 RESPONSE to 215 MOTION for Clarification filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 05/03/2018)
220 REPLY to Response re 215 MOTION for Clarification filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 05/04/2018)
221 REPLY to Response re 196 MOTION to Amend/Correct 186 Answer to Amended Complaint Under Fed. R. Civ. P. 15 filed by Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Policy Directive 03.02.130, # 3 Exhibit B. Policy Directive 04.01.150) (Dalzell, Kathryn) (Entered: 05/09/2018)
222 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (LaBelle, Deborah) (Entered: 05/15/2018)
223 REQUEST for clarification of 04/09/18 opinion and order granting disciplinary credits to prisoners who's life sentences were changed to a term of years by Daryl E Smith. (DPer) (Entered: 05/16/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Scheduling Conference held on 5/22/2018. (Sandusky, K) (Entered: 05/23/2018)
224 Notice Regarding Parties' Responsibility to Notify Court of Address Changes (KCas) (Entered: 05/23/2018)
225 Plaintiffs' STATEMENT of Impact of Resolution of Count VI on Plaintiff Class by All Plaintiffs (LaBelle, Deborah) (Entered: 05/25/2018)
226 STATEMENT of of Impact of Resolution of Count VI on the Plaintiff Class by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Govorchin, A.) (Entered: 05/25/2018)

05/29/2018 05/29/2018 05/30/2018 05/31/2018
06/06/2018 06/07/2018
06/15/2018 06/18/2018
06/29/2018

227 ORDER Regarding Request for Clarification (Dkt. 223 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/29/2018)
TEXT-ONLY CERTIFICATE OF SERVICE re 227 Order on Daryl E. Smith, #205522, 141 First Street B-1-21, Lakeland Corr Facility, Coldwater, MI 49036 (Sandusky, K) (Entered: 05/29/2018)
228 OPINION & ORDER Denying Defendants' Motion for Clarification (Dkt. 215 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/30/2018)
229 CASE MANAGEMENT AND SCHEDULING ORDER: Expert and Fact Discovery due by 8/31/2018, Dispositive Motion Cut-off set for 9/28/2018, Final Settlement Conference set for 1/22/2019 at 01:30 PM before District Judge Mark A. Goldsmith, Final Pretrial Conference set for 2/11/2019 at 01:30 PM before District Judge Mark A. Goldsmith, and Jury Trial set for 2/25/2019 at 08:30 AM before District Judge Mark A. Goldsmith. Signed by District Judge Mark A. Goldsmith. (Refer to image for additional dates) (Sandusky, K) (Entered: 05/31/2018)
230 STIPULATION AND ORDER Regarding Dismissal of Plaintiffs' Claims for Money Damages and Defendants' Withdrawal of Their Motion to Amend Their Answer to Plaintiffs Second Amended Complaint. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/06/2018)
231 MOTION for Attorney Fees Costs and Expenses by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15) (LaBelle, Deborah) (Entered: 06/07/2018)
232 MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Attorney Fees Costs and Expenses by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Dalzell, Kathryn) (Entered: 06/15/2018)
TEXT-ONLY ORDER: Defendants' motion for an extension of time to file response/reply (Dkt. 232 ) is granted. Defendants' response to Plaintiffs' motion for attorney fees, costs, and expenses (Dkt. 231 ) shall be filed no later than July 19, 2018: (Response due by 7/19/2018). SO ORDERED. Signed by District Judge Mark A. Goldsmith. (MarW) (Entered: 06/18/2018)
233 NOTICE of Appearance by John L. Thurber on behalf of All Defendants. (Thurber, John) (Entered: 06/29/2018)

07/03/2018 07/09/2018 07/09/2018 07/19/2018 07/19/2018 07/19/2018 07/20/2018
07/20/2018 07/26/2018
07/30/2018
07/31/2018 07/31/2018 08/01/2018 08/03/2018

234 STIPULATED ORDER EXTENDING TIME FOR THE PARTIES TO FILE LAY WITNESS LISTS. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 07/03/2018)
235 Plaintiffs' Lay WITNESS LIST by All Plaintiffs (LaBelle, Deborah) (Entered: 07/09/2018)
236 Lay WITNESS LIST by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Thurber, John) (Entered: 07/09/2018)
237 Ex Parte MOTION for Leave to File Excess Pages by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Sherman, Ann) (Entered: 07/19/2018)
238 RESPONSE to 231 MOTION for Attorney Fees Costs and Expenses filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Sherman, Ann) (Entered: 07/19/2018)
239 Ex Parte MOTION for Leave to File Excess Pages CORRECTED by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Sherman, Ann) (Entered: 07/19/2018)
240 MOTION to Compel Compliance with Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6) (LaBelle, Deborah) (Entered: 07/20/2018)
241 Plaintiffs' Expert WITNESS LIST by All Plaintiffs (LaBelle, Deborah) (Entered: 07/20/2018)
242 STIPULATION AND ORDER Extending Time for Plaintiffs' Reply in Support of Their Motion for Attorney Fees, Costs and Expenses ( Reply due by 7/31/2018). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 07/26/2018)
243 MOTION to Strike 241 Witness List by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Index of Exhibit, # 2 Exhibit A. A.Stapletons Partial Employment History) (Govorchin, A.) (Entered: 07/30/2018)
244 REPLY to Response re 231 MOTION for Attorney Fees Costs and Expenses filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (LaBelle, Deborah) (Entered: 07/31/2018)
245 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 07/31/2018)
246 Exhibit List by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/01/2018)
247 RESPONSE to 240 MOTION to Compel Compliance with Judgment filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Exhibit List,

08/03/2018 08/06/2018 08/07/2018 08/08/2018
08/13/2018 08/14/2018
08/15/2018 08/21/2018

# 2 Exhibit A.Dennis Johnson OTIS Sheet, # 3 Exhibit B.Dennis Johnson OTIS Sheet, # 4 Exhibit C.Dennis Johnson Parole Order, # 5 Exhibit D.Affidavit of Kyle Kaminski, # 6 Exhibit E.Dennis Johnson Transit History, # 7 Exhibit F.Dennis Johnson Program Classification Report, # 8 Exhibit G.James Howard OTIS Sheet, # 9 Exhibit H.James Howard Judgment of Sentence dated February 23, 1982, # 10 Exhibit I.James Howard Transit History, # 11 Exhibit J.James Howard Program Classification Report, # 12 Exhibit K.James Howard Parole Order, # 13 Exhibit L.Deposition of Michael Eagen Part Two, # 14 Exhibit M.In-Reach Programming Grid, # 15 Exhibit N.Affidavit of Douglas Kosinski) (Govorchin, A.) (Entered: 08/03/2018)
248 Exhibit List by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Govorchin, A.) (Entered: 08/03/2018)
TEXT-ONLY ORDER: Upon review, the Court grants both Plaintiffs' and Defendants' motions for leave to file excess pages (Dkts. 239 , 245 ) SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/06/2018)
249 Expert Disclosures and WITNESS LIST by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Govorchin, A.) (Entered: 08/07/2018)
250 ORDER Setting Telephonic Conference ( TELEPHONIC Status Conference set for 8/21/2018 at 12:00 PM before District Judge Mark A. Goldsmith). Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/08/2018)
251 RESPONSE to 243 MOTION to Strike 241 Witness List filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 08/13/2018)
252 OPINION and JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 206 Notice of Appeal filed by Patricia Caruso, Michael Eagen, HEIDI E. WASHINGTON, Jennifer Granholm, Thomas R Combs, Daniel H. Heyns, Rick Snyder, Bill Schuette [Appeal Case Number 18-1418] (DWor) (Entered: 08/15/2018)
253 STIPULATION AND ORDER Resolving Defendants' Motion to Strike Plaintiffs' Expert Witness List (DKT. 243 ) Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/15/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 8/21/2018. (Sandusky, K) (Entered: 08/22/2018)

08/22/2018 08/24/2018 08/28/2018
08/29/2018 08/30/2018 08/31/2018 09/04/2018 09/05/2018 09/20/2018 09/21/2018

254 ORDER REGARDING SCHEDULING ( Joint Proposed Schedule due by 8/24/2018). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/22/2018)
255 STATEMENT of Resolved and Unresolved Issues by All Plaintiffs (Attachments: # 1 Exhibit Defendants' Submission to the Ordered Joint Statement on Scheduling) (LaBelle, Deborah) [DOCUMENT IS TITLED JOINT MODIFICATION OF SCHEDULING ORDER] Modified on 8/24/2018 (NAhm). (Entered: 08/24/2018)
256 MOTION to Compel Regarding Plaintiff Hill Class Members' Responses to Defendants' Interrogatories Submitted July 23, 2018 by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Plaintiffs' Answers to Defendants' First Set of Interrogatories, # 3 Exhibit B. Hines OTIS, # 4 Exhibit C. Casper OTIS, # 5 Exhibit D. Servant OTIS, # 6 Exhibit E. Villaflor v State Farm Mutual Automobile Insurance Co, # 7 Exhibit F. Shirley v City of Eastpointe, # 8 Exhibit G. Higgs v Doug Andrus Distributing LLC) (Govorchin, A.) (Entered: 08/28/2018)
257 ATTORNEY SUBSTITUTION for Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON: Sara Elizabeth Trudgeon added. removing B. Eric Restuccia (also sending proposed order via Utilities) (Trudgeon, Sara) (Entered: 08/29/2018)
258 ORDER PERMITTING SUBSTITUTION OF ATTORNEYS. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/30/2018)
259 STIPULATION AND ORDER FOR THE TAKING OF DEPOSITIONS PURSUANT TO FED. R. CIV. PRO. 30(2)B. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/31/2018)
260 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 9/5/2018 at 04:45 PM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (Sandusky, K) (Entered: 09/04/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 9/5/2018 (Sandusky, K) (Entered: 09/05/2018)
261 NOTICE by All Defendants of withdrawal of 256 MOTION to Compel Regarding Plaintiff Hill Class Members' Responses to Defendants' Interrogatories Submitted July 23, 2018 . (Govorchin, A.) (Entered: 09/20/2018)
262 STIPULATED Modification of Scheduling Order ( Dispositive Motion Cut-off set for 10/29/2018). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/21/2018)

10/24/2018 11/02/2018 11/05/2018 11/06/2018 11/13/2018 11/13/2018 11/14/2018 11/15/2018 11/20/2018 11/27/2018 12/04/2018 12/21/2018

263 SECOND STIPULATED MODIFICATION OF SCHEDULING ORDER ( Dispositive Motion Cut-off RESET for 11/13/2018) Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/24/2018)
264 Ex Parte MOTION for Leave to File Exhibits in the Traditional Manner by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Govorchin, A.) (Entered: 11/02/2018)
TEXT-ONLY ORDER: Upon review the Court grants the Motion for Leave to File Exhibits in the Traditional Manner (Dkt. 264 ). SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/05/2018)
265 NOTICE OF HEARING on 240 MOTION to Compel Compliance with Judgment. Motion Hearing set for 11/29/2018 at 02:00 PM before District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/06/2018)
266 STIPULATED ORDER OF VOLUNTARY DISMISSAL AS TO COUNT IV ONLY. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/13/2018)
267 MOTION for Summary Judgment as to Plaintiffs' Second Amended Complaint (Dkt #130) Count VI by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits) (Govorchin, A.) (Entered: 11/13/2018)
268 CERTIFICATE OF SERVICE by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON (Govorchin, A.) (Entered: 11/14/2018)
269 EXHIBIT Filed in the Traditional Manner (SSch) (Entered: 11/16/2018)
270 STIPULATED ORDER to Adjourn Hearing on Motion to Compel Compliance ( Motion Hearing RESET for 1/3/2019 at 02:00 PM before District Judge Mark A. Goldsmith) Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/20/2018)
271 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 252 Appeal Order/Opinion/Judgment, [Appeal Case Number 18-1418] (SKra) (Entered: 11/28/2018)
272 STIPULATED ORDER Extending Time for Plaintiffs to Respond to Defendants' Motion for Summary Judgment ( Response due by 12/21/2018). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/04/2018)
273 Joint MOTION for Order to Modify Case Management & Scheduling Order by All Plaintiffs. (LaBelle, Deborah) (Entered: 12/21/2018)

12/21/2018 12/27/2018
01/02/2019 01/02/2019 01/03/2019 01/03/2019
01/03/2019 01/11/2019

274 RESPONSE to 267 MOTION for Summary Judgment as to Plaintiffs' Second Amended Complaint (Dkt #130) Count VI filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit) (LaBelle, Deborah) (Entered: 12/21/2018)
TEXT-ONLY ORDER: The deadline for the parties to file the Joint Final Pretrial Order is adjourned without date. The Court sets a TELEPHONIC Status Conference for 1/2/2019 at 01:00 PM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/27/2018)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 1/2/2019 (Sandusky, K) (Entered: 01/02/2019)
275 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/24/2019 at 01:00 PM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (Sandusky, K) (Entered: 01/02/2019)
TEXT-ONLY ORDER: All remaining dates in the Case Management and Scheduling Order (Dkt. 229 ) are adjourned until further order of the Court. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/03/2019)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Motion Hearing held on 1/3/2019 re 240 MOTION to Compel Compliance with Judgment filed by Jennifer Pruitt, Jemal Tipton, Nicole Dupure, Damion Todd, Kevin Boyd, Giovanni Casper, Henry Hill, Bobby Hines, Matthew Bentley, Keith Maxey, Dontez Tillman, Bosie Smith, Jean Cintron. Disposition: Motion taken under advisement. (Court Reporter: David Yarbrough) (Sandusky, K) (Entered: 01/03/2019)
276 STIPULATED ORDER Extending Time for Defendants to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment ( Reply due by 1/11/2019). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/03/2019)
277 REPLY to Response re 267 MOTION for Summary Judgment as to Plaintiffs' Second Amended Complaint (Dkt #130) Count VI filed by Michael Eagen, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex A - Parole Board Grid) (Govorchin, A.) (Entered: 01/11/2019)

01/17/2019
01/30/2019 02/01/2019
02/07/2019 02/07/2019 02/12/2019 02/25/2019 02/26/2019 05/23/2019 07/12/2019

Set Deadlines/Hearings: TELEPHONIC Status Conference RESET for 2/1/2019 11:00 AM before District Judge Mark A. Goldsmith. Attorney for Plaintiff shall initiate the conference call and then include the Court when all parties are available by calling 313/2345240. (BGar) (Entered: 01/17/2019)
TEXT-ONLY NOTICE: Telephonic Status Conference on February 1, 2019 is Cancelled. (Sandusky, K) (Entered: 01/30/2019)
278 TRANSCRIPT of Motion to Compel Compliance with Judgment held on 1/3/2019. (Court Reporter/Transcriber: David B. Yarbrough) (Number of Pages: 34) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 2/22/2019. Redacted Transcript Deadline set for 3/4/2019. Release of Transcript Restriction set for 5/2/2019. 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. (Yarbrough, David) (Entered: 02/01/2019)
279 NOTICE by Bill Schuette, Rick Snyder of Substitution of Party (Govorchin, A.) (Entered: 02/07/2019)
280 ERRATA Sheet by Bill Schuette, Rick Snyder (Attachments: # 1 Exhibit 1) (Govorchin, A.) (Entered: 02/07/2019)
281 ORDER Regarding Case Caption. Signed by District Judge Mark A. Goldsmith. (BGar) (Entered: 02/12/2019)
282 ORDER Denying Without Prejudice Plaintiffs' Motion for Attorney Fees (Dkt. 231 ). Signed by District Judge Mark A. Goldsmith. (MacKay, K) (Entered: 02/25/2019)
283 OPINION AND ORDER Denying Plaintiffs' Motion to Compel Compliance with Judgment (Dkt. 240 ). Signed by District Judge Mark A. Goldsmith. (MacKay, K) (Entered: 02/26/2019)
284 ORDER of Attorney Substitution. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/23/2019)
285 OPINION & ORDER Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (Dkt. 267 ). (TELEPHONIC Status Conference set for 7/22/2019 at 04:00 PM before District Judge Mark A. Goldsmith). Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. Signed by District Judge Mark A. Goldsmith. (EKar) (Entered: 07/12/2019)

07/22/2019 08/22/2019 08/26/2019 09/03/2019 09/09/2019 09/09/2019
09/10/2019

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 7/22/2019. (TELEPHONIC Status Conference set for 8/22/2019 at 4:00 PM before District Judge Mark A. Goldsmith). Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (BSau) (Entered: 07/23/2019)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 8/22/2019. (Sandusky, K) (Entered: 08/22/2019)
286 ORDER Granting Plaintiffs' and Defendants' Requests for Leave to File Papers. Signed by District Judge Mark A. Goldsmith. (MacKay, K) (Entered: 08/26/2019)
287 STIPULATION AND ORDER Allowing Michael J. Steinberg to Withdraw as Co-Counsel. Signed by District Judge Mark A. Goldsmith. (MacKay, K) (Entered: 09/03/2019)
288 MOTION to Amend/Correct Complaint by All Plaintiffs. (Attachments: # 1 Exhibit A) (LaBelle, Deborah) (Entered: 09/09/2019)
289 MOTION for Summary Judgment and Brief in Support by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Eagan Dep Tran, # 3 Exhibit B - Kosinksi Dep Tran, # 4 Exhibit C - 9/6/19 Life Without Parole Grid, # 5 Exhibit D - OTIS Williams #191260, # 6 Exhibit E - Williams Lifer Interview, # 7 Exhibit F - Willaims Notice Decision, # 8 Exhibit G - Williams CSX-175, # 9 Exhibit H - OTIS Marcus Walker, # 10 Exhibit I - Walker's Interview, # 11 Exhibit J Walker's Deicsion, # 12 Exhibit K - Walker's CSX-175, # 13 Exhibit L Walker Case Summary, # 14 Exhibit M - OTIS Kelly, # 15 Exhibit N Kelly's Sentences, # 16 Exhibit O - Kelly's CSX-175, # 17 Exhibit P Kelly's Case Summary, # 18 Exhibit Q - OTIS Servant, # 19 Exhibit R Servant's CSX-175, # 20 Exhibit S - Servant's Decision, # 21 Exhibit T Servant's Notice of Intent, # 22 Exhibit Exs U and V - Relevant Paroled Class Members and Pltfs' List of Class Members) (Trudgeon, Sara) (Entered: 09/09/2019)
290 MOTION to Amend/Correct 289 MOTION for Summary Judgment and Brief in Support with Certificate of Service by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Attachments: # 1 Exhibit A:DEFENDANTS CORRECTED MOTION & BRIEF FOR SUMMARY JUDGMENT ON THE REMAINDER OF PLAINTIFFS SECOND AMENDED COMPLAINT (R. 130) COUNT VI PURSUANT TO THE COURTS 8/26/2019 ORDER (R. 286), # 2 Index of Exhibits Index of Exhibits to Corrected Motion & Brief for Summary Judgment, # 3 Exhibit Eagen Dep. Tr., # 4 Exhibit Kosinski Dep. Tr, # 5 Exhibit 9/6/2019 Mandatory Juvenile Life Without Parole Grid, # 6 Exhibit OTIS Ronald Williams #191260, # 7 Exhibit Williams Lifer Interview/Review

09/11/2019 09/12/2019
09/23/2019 10/03/2019 10/17/2019

Log, # 8 Exhibit Williams Notice of Decision, # 9 Exhibit Williams CSX175, # 10 Exhibit OTIS Marcus Walker, # 11 Exhibit Walkers Lifer Interview/Review Log, # 12 Exhibit Walkers Parole Board Notice of Decision, # 13 Exhibit Walkers CSX-175, # 14 Exhibit Walker Case Summary Report, # 15 Exhibit OTIS Terrence Kelly, # 16 Exhibit Kellys Am. J. of Sentences, # 17 Exhibit Kellys CSX-175, # 18 Exhibit Kellys Case Summ. Report, p. 12, # 19 Exhibit OTIS Willie Servant, # 20 Exhibit Servants CSX-175, # 21 Exhibit Servants Parole Board Notice of Decision, # 22 Exhibit Servants Notice of Intent, # 23 Exhibit Relevant Paroled Class Members CSX-175) (Trudgeon, Sara) (Entered: 09/10/2019)
291 ORDER Granting Defendants' Motion to Withdraw and Correct Defendants' Motion for Summary Judgment (Dkt. 290 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/11/2019)
292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A-Eagen Dep. Tr., # 3 Exhibit B-Kosinski Dep. Tr, # 4 Exhibit C-9/6/2019 Mandatory Juvenile Life Without Parole Grid, # 5 Exhibit D-OTIS Ronald Williams #191260, # 6 Exhibit EWilliams Lifer Interview/Review Log, # 7 Exhibit F-Williams Notice of Decision, # 8 Exhibit G-Williams CSX-175, # 9 Exhibit H-OTIS Marcus Walker, # 10 Exhibit I-Walkers Lifer Interview/Review Log, # 11 Exhibit J-Walkers Parole Board Notice of Decision, # 12 Exhibit K-Walkers CSX-175, # 13 Exhibit L-Walker Case Summary Report, # 14 Exhibit MOTIS Terrence Kelly, # 15 Exhibit N-Kellys Am. J. of Sentences, # 16 Exhibit O-Kellys CSX-175, # 17 Exhibit P-Kellys Case Summ. Report, p. 12, # 18 Exhibit Q-OTIS Willie Servant, # 19 Exhibit RServants CSX-175, # 20 Index of Exhibits S-Servants Parole Board Notice of Decision, # 21 Exhibit T-Servants Notice of Intent, # 22 Exhibit U-Relevant Paroled Class Members CSX-175) (Trudgeon, Sara) (Entered: 09/12/2019)
293 RESPONSE to 288 MOTION to Amend/Correct Complaint with Certificate of Service filed by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Mertens, Scott) (Entered: 09/23/2019)
294 RESPONSE to 292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (LaBelle, Deborah) (Entered: 10/03/2019)
295 REPLY to Response re 292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service with Certificate of Service filed by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON,

10/22/2019
10/25/2019 10/29/2019 10/31/2019 10/31/2019 11/01/2019 11/01/2019
11/05/2019 11/22/2019 12/05/2019

Gretchen Whitmer. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A: Kevin Boyd #251328 CSX-175, # 3 Exhibit B: PBIS Parole Board interview notes re: Kevin Boyd, # 4 Exhibit C:Parole Board Notice of Decision, Kevin Boyd #251328, # 5 Exhibit D: People v. Turner, No. 336406, 2018 WL 2269954, at *1 (Mich. Ct. App. May 17, 2018), # 6 Exhibit E: Tykeith Turner 248666 CSX-175, # 7 Exhibit F: OP 05.01.100, G, item 16, emphasis added, # 8 Exhibit G: Hill Class members not yet resentenced, # 9 Exhibit H: Hill Class Member COMPAS VFO Scores) (Trudgeon, Sara) (Entered: 10/17/2019)
296 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 10/31/2019 at 11:00 AM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (Sandusky, K) (Entered: 10/22/2019)
297 ORDER Granting Plaintiffs' Motion to Amend (Dkt. 288 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/25/2019)
298 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Plaintiffs. NO NEW PARTIES ADDED. (LaBelle, Deborah) (Entered: 10/29/2019)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 10/31/2019. (Court Reporter: None Present, Not on the Record) (Sandusky, K) (Entered: 10/31/2019)
299 ORDER DIRECTING PARTIES TO FILE MEMORANDA. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/31/2019)
300 MEMORANDUM by All Plaintiffs (Watt, Steven) (Entered: 11/01/2019)
301 MEMORANDUM re 299 Order by Michael Eagen, Dana Nessel, Bill Schuette, Rick Snyder, HEIDI E. WASHINGTON, Gretchen Whitmer (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Mertens, Scott) (Entered: 11/01/2019)
302 ORDER Staying Discovery. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/05/2019)
303 ORDER Setting Forth Briefing Schedule. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/22/2019)
304 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/9/2019 at 03:30 PM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (Sandusky, K) (Entered: 12/05/2019)

12/09/2019 12/10/2019
12/10/2019 12/13/2019 12/17/2019 12/18/2019 12/20/2019 01/03/2020 01/07/2020 01/14/2020 01/14/2020
02/20/2020

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 12/9/2019. (Sandusky, K) (Entered: 12/10/2019)
305 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/17/2019 at 12:00 PM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. The purpose of the conference is to address the parties conference regarding Defendants forthcoming motions to dismiss Count 8 of the third amended complaint. (Sandusky, K) (Entered: 12/10/2019)
306 ORDER Setting Forth Briefing Schedule. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/10/2019)
307 NOTICE of Appearance by Bonsitu A. Kitaba on behalf of All Plaintiffs. (Kitaba, Bonsitu) (Entered: 12/13/2019)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 12/17/2019. (Sandusky, K) (Entered: 12/17/2019)
308 ORDER SETTING FORTH DEADLINES TO FILE AMENDED PLEADINGS. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/18/2019)
309 SUPPLEMENTAL BRIEF re 294 Response to Motion filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 12/20/2019)
310 MEMORANDUM re 309 Supplemental Brief Defendants' Response in Opposition to Plaintiffs' Memorandum in Support of Class Relief Under Count VI by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer (Trudgeon, Sara) (Entered: 01/03/2020)
311 STIPULATED ORDER Extending Time for Plaintiffs to File a Fourth Amended Complaint and for Defendants' to File an Answer or Dispositive Motion in Lieu of Answer. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/07/2020)
312 STIPULATED ORDER FOR STAY OF PROCEEDINGS. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/14/2020)
313 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 2/20/2020 at 11:00 AM before District Judge Mark A. Goldsmith. Plaintiffs counsel shall initiate the call, and then include the Court by calling (313) 234-5240 when all parties are on the line. (Sandusky, K) (Entered: 01/14/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 2/20/2020. (Sandusky, K) (Entered: 02/21/2020)

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314 ORDER Setting Forth Deadlines to File Amended Pleadings. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/21/2020)
315 NOTICE OF HEARING on 292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service. Motion Hearing set for 3/2/2020 at 11:15 AM before District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/26/2020)
316 AMENDED COMPLAINT FOURTH filed by All Plaintiffs against All Plaintiffs. NEW PARTIES ADDED. (LaBelle, Deborah) (Entered: 02/27/2020)
317 STIPULATION AND ORDER Extending Time for Oral Argument Defendants' Motion for Summary Judgment( Motion Hearing RESET for 3/23/2020 02:30 PM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/28/2020)
318 NOTICE OF HEARING BY TELEPHONE on 292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service. Motion Hearing RESET for 3/23/2020 at 02:30 PM before District Judge Mark A. Goldsmith (In-person hearing will now be a telephonic hearing). The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 03/18/2020)
Set/Reset Deadlines as to 292 MOTION for Summary Judgment Corrected, with Brief in Support & Certificate of Service. TELEPHONIC Motion Hearing RESET for 3/30/2020 02:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 03/20/2020)
319 STIPULATION AND ORDER for Enlargement of Time for Defendants to File a Response to Plaintiff's Fourth Amended Complaint. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 03/24/2020)
320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH AMENDED COMPLAINT and Certificate of Electronic Service by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Attachments: # 1 Exhibit Exhibit 1 Appellant Brief 9-6-2019, # 2 Exhibit Exhibit 2 Amicus Brief CDAM 127-2020, # 3 Exhibit Exhibit 3 Amicus Brief Juvenile Law Center 1-312020) (Mertens, Scott) (Entered: 03/27/2020)
TEXT-ONLY NOTICE: Telephonic Motion Hearing on March 30, 2020 is Cancelled (Sandusky, K) (Entered: 03/30/2020)
321 JOINT STIPULATION AND ORDER for Enlargement of Time to File Plaintiffs' Response to Defendants' Motion to Dismiss (Dkt. 320 )

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( Response due by 5/11/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/17/2020)
322 RESPONSE to 320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH AMENDED COMPLAINT and Certificate of Electronic Service filed by All Plaintiffs. (Watt, Steven) (Entered: 05/11/2020)
323 STIPULATION AND ORDER for Enlargement of Time for Defendants to File a Brief Reply to Plaintiff's Response to Their Motion to Dismiss Count VIII:( Reply due by 6/1/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/28/2020)
324 REPLY to Response re 320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH AMENDED COMPLAINT and Certificate of Electronic Service AND CERTIFICATE OF SERVICE filed by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit A, Cook 1970-006123-FX Register of Actions, # 3 Exhibit B, Email Re: Brian Granger, # 4 Exhibit C, Wheeler 19700003957-FC Register of Actions, # 5 Exhibit D, Examples of stays in juvenile lifer cases, # 6 Exhibit E, Masalmani MSC Order) (Trudgeon, Sara) (Entered: 06/01/2020)
325 OPINION & ORDER Denying Defendants' Motion for Summary Judgment with Respect to Count VI (Dkt. 292 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/02/2020)
326 NOTICE OF HEARING on 320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH AMENDED COMPLAINT and Certificate of Electronic Service. Motion Hearing set for 6/12/2020 at 01:00 PM before District Judge Mark A. Goldsmith (Sandusky, K) (Entered: 06/05/2020)
327 NOTICE OF HEARING BY VIDEO CONFERENCE on 320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH AMENDED COMPLAINT and Certificate of Electronic Service. Motion Hearing set for 6/12/2020 at 01:00 PM before District Judge Mark A. Goldsmith. |Zoom Webinar Information: https://zoom.us/j/98880545134?pwd=dUQ0U2pZTW5zVlA3eUFJbUh0Z zJaUT09 Password: 022691 Or iPhone one-tap : US: +12532158782,,98880545134#,,1#,022691# or +13017158592,,98880545134#,,1#,022691#| (Sandusky, K) (Entered: 06/08/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Motion Hearing held on 6/12/2020 re 320 MOTION to Dismiss Brief in Support motion to dismiss COUNT VIII OF PLAINTIFFS FOURTH

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07/08/2020

AMENDED COMPLAINT and Certificate of Electronic Service filed by Michael Eagen, Gretchen Whitmer, Dana Nessel, HEIDI E. WASHINGTON. Disposition: Motion taken under advisement. (Court Reporter: David Yarbrough) (Sandusky, K) (Entered: 06/12/2020)
328 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/17/2020 02:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327 (Sandusky, K) (Entered: 06/15/2020)
329 MOTION for Reconsideration re 325 Order on Motion for Summary Judgment with Brief in Support by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Trudgeon, Sara) (Entered: 06/16/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/17/2020 (Sandusky, K) (Entered: 06/17/2020)
330 Amended MOTION for Reconsideration re 325 Order on Motion for Summary Judgment with Brief in Support by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer. (Trudgeon, Sara) (Entered: 06/17/2020)
331 ORDER FOR SETTLEMENT CONFERENCE AND REFERRING OTHER MATTERS to Magistrate Judge David R. Grand : Settlement Conference . Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/19/2020)
332 NOTICE TO APPEAR BY VIDEO CONFERENCE: Settlement Conference set for 6/24/2020 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 06/19/2020)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Settlement Conference held on 6/24/2020. Disposition: Settlement conference held. Counsel agreed to continue their settlement discussions and the Court will hold a telephonic status conference on Tuesday, June 30, 2020 at 4:00 p.m. regarding their progress. The Court will e-mail callin directions to counsel. (EBut) (Entered: 06/25/2020)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Telephonic Status Conference held on 7/8/2020.Disposition: Telephonic status conference call held on 7/8/2020 regarding the parties progress on settlement. Counsel shall continue their talks privately as discussed on the call, and the Court will hold a telephonic status conference on Wednesday, July 15, 2020 at 4:00 p.m. regarding their progress. The Court will e-mail call-in directions to counsel. (EBut) (Entered: 07/09/2020)

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333 NOTICE TO APPEAR BY VIDEO CONFERENCE: Settlement Conference set for 9/16/2020 01:00 PM before Magistrate Judge David R. Grand (EBut) (Entered: 08/25/2020)
334 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 8/28/2020 08:30 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 08/26/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 8/28/2020 (Court Reporter: None Present, Not on the Record). (Sandusky, K) (Entered: 08/28/2020)
335 ORDER Regarding Schedule as to Count VIII ( Dispositive Motion Cutoff set for 11/9/2020, Responses due by 12/2/2020, Replies due by 12/9/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 08/28/2020)
336 STIPULATION AND ORDER for Enlargement of Time for Defendant Nessel to File Objections to Plaintiffs' Requests for Discovery Received September 4, 2020. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/09/2020)
337 ATTORNEY APPEARANCE: Lisa M. Geminick appearing on behalf of Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer as Co-Counsel with Certificate of Service (Geminick, Lisa) (Entered: 09/10/2020)
338 STIPULATION AND ORDER for Enlargement of Time for Plaintiffs to File a Motion to Compel Responses to Requests for Discovery Served September 4, 2020. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/15/2020)
339 MOTION to Compel Responses to Discovery Requests dated September 4, 2020 by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3) (LaBelle, Deborah) (Entered: 09/15/2020)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Settlement Conference held on 9/16/2020 Disposition: Held and continued to 9/17/20 at 3:30p.m. (EBut) (Entered: 09/16/2020)
340 NOTICE TO APPEAR BY VIDEO CONFERENCE: Settlement Conference set for 9/17/2020 03:30 PM before Magistrate Judge David R. Grand (EBut) (Entered: 09/16/2020)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Settlement Conference held on 9/17/2020 Disposition: Case settled with the terms placed on the record. Parties to submit a motion for Court approval. (Court Reporter: Christin Russell) (EBut) (Entered: 09/21/2020)

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10/28/2020 10/28/2020

341 STIPULATION AND ORDER Staying Order Regarding Schedule as to Count VIII (R. 335) and Holding in Abeyance Related Outstanding Responses Pending Settlement of the Case. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/18/2020)
345 MOTION to Join Claim as Interested Party filed by Tabu Wright. (SSch) (Entered: 10/01/2020)
342 MOTION Preliminary Approval of Settlement by All Plaintiffs. (Attachments: # 1 Exhibit Class Notice, # 2 Exhibit Settlement Agreement) (LaBelle, Deborah) (Entered: 09/28/2020)
343 PRELIMINARY ORDER Approving Settlement, Class Notice and Scheduling a Fairness Hearing ( Fairness Hearing set for 11/2/2020 at 03:00 PM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 09/30/2020)
344 NOTICE of Settlement of Class Action. Signed by District Judge Mark A. Goldsmith (Sandusky, K) (Entered: 09/30/2020)
346 RESPONSE to 345 MOTION to Join Claim as Interested Party filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 10/07/2020)
347 ORDER Denying Tabu Wright's Motion to Join Action as Interested Party (Dkt. 345 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/08/2020)
348 NOTICE by Michael Eagen, Dana Nessel, HEIDI E. WASHINGTON, Gretchen Whitmer CERTIFICATE OF COMPLIANCE pursuant to the parties settlement agreement (Geminick, Lisa) (Entered: 10/09/2020)
349 NOTICE by All Plaintiffs & Submission of Class Member Objections to Proposed Settlement Agreement (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5) (LaBelle, Deborah) (Entered: 10/26/2020)
350 NOTICE TO APPEAR BY VIDEO CONFERENCE: Fairness Hearing set for 11/2/2020 03:00 PM before District Judge Mark A. Goldsmith |Zoom Webinar Information: https://www.zoomgov.com/j/1614178428?pwd=MmVRd1ZYSEZGelcrd khZOWgyRXlHQT09 Passcode: 129560 Or iPhone one-tap : US: +16692545252,,1614178428# or +16468287666,,1614178428#| (Sandusky, K) (Entered: 10/27/2020)
351 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
352 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)

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10/28/2020 11/02/2020 11/03/2020 11/17/2020 11/17/2020 11/17/2020

353 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
354 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
355 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
356 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
357 ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/28/2020)
358 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 10/28/2020 01:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 10/28/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 10/28/2020 (Court Reporter: None Present, Not on the Record). (Sandusky, K) (Entered: 10/28/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Video Fairness Hearing held on 11/2/2020 (Court Reporter: David Yarbrough) (Sandusky, K) (Entered: 11/02/2020)
359 ORDER Regarding Post-Hearing Filings. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/03/2020)
360 FINAL ORDER APPROVING SETTLEMENT. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/17/2020)
361 OPINION OVERRULING OBJECTIONS. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/17/2020)
362 FINAL JUDGMENT. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 11/17/2020)

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