NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0749n.06
No. 11-3835
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L ONNI E L EE J ERGENS,
P laintif f-App ellant,

v. STATE OF OHI O DEPARTMENT OF REHAB I L I TATI ON AND CORREC TI ONS ADUL T PA RO L E AUTHO RI TY; EL L EN W. VENTERS; BOB BY BO GAN,
Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

O P I N I O N

Before: M OORE, WHIT E, and LUCERO, Circuit Judges. *
KA REN NELSO N MOORE, Circuit Judge. Plaintiff-Appellant L onnie J erg ens appea ls the district court’s dismissal of his 42 U.S.C. § 1983 claim. J erg ens, who is an inmate in an O hio
state prison, maintains that Def endants-A

ppellees the Ohio Adult Parole Authority (“O APA”) and
two individual members of the Ohio Parole Bo ar d , Ellen Venter s and Bobby Bog an, violated his rig hts under the Fifth and Four teenth Amendments to the U.S. Constit ution by failing to provide him a meaningf

ul hear ing before denying his parole

. Be cause we ag ree that J erg ens has f ailed to state a cla im for re lief, we AF F IRM the district court’s judg ment. I. BACKG ROUND

The Honora

ble Carlos F. L ucer o, Circuit Judge for the United States Court of Appea ls f or * the Tenth Circuit, sitting by desig nation.No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

On Fe bruar

y 7, 1992, J erg ens was convicted of murder and sentenc ed to an indefinite period of incar cer ation. Acc ording to the complaint, J erg ens was schedule d for a parole -elig ibilit y hear ing

on April 2, 2010. Shortly befor e that date, on Marc h 25, 2010, J erg ens’s attorney met with OAPAb o ar d m em b er Bog an to discuss the hear ing and to clar ify supposedly false information about
J erg ens’s criminal re co rd and history that had been us ed aga inst J erg ens i n prior parole hearing s. Bog an alleg edly told J erg ens’s attorney “that he was not interested in this information or in the past” and that he was conce rned only with J erg ens’s plans for the fu t u re. R. 1 (Compl. ¶ 16). J erg ens maintains that des p i te his attorney ’s eff orts to clar ify the rec ord, OAPA-boa rd member Venter s subsequently used the false information at his hear ing to de ny his pa role. J erg ens also challeng es 1

t h e validity of the hear ing on the basis that he had previously filed suit ag ainst Venter s , wh i ch
J erg ens asse rts made it a c onflict of intere st for her to act as the hear ing of

fice r at his hea

ring

. J erg ens filed a motion for rec onsideration of the parole board’ s decision, which was denied. Following the denial, J erg ens filed suit ag ainst the OAPA and individual board members Bog an and
Venter s, alleg ing that the actions of these defe ndants violated his constitutional rig ht to due proce ss. J erg ens also claims that Bog an’s failure to acc ept the corr ecte d fac ts prese nted by J erg ens’s attorney and Venter ’s continued use of the alleg edly false information amounted to a conspirac y to de prive

J erg ens’s complaint never identifies the nature of the false information or the way in which 1 Venter s improperly

used it ag ainst him. 2No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

J erg ens of his constitutional rig hts. I n his request for relief , J erg ens seeks monetary damag es and

a mea ningf ul parole he aring

. 2
On April 15, 2011, the defe ndants filed a motion to dismiss for failure to state a claim. They
prese nted two g rounds for dismiss ing the complaint: (1) the lack of due-pr ocess rig hts with respe ct
to parole under Ohio’s statutes and (2) the OAPA’s immunit y under the Eleventh Amend m ent. J erg ens’s response maintained that “ther e are Due P ro cess rig hts to a ‘mea ningf ul revie w’ in the parole proce ss,” and that, based on an Ohio Supreme Court case involving a state entity , Ohio can be sued in fede ral court. R. 12 (Resp. to Mot. to Dismiss at 2). I n a Report and Recommenda tion,
t h e m ag istrate judge rec ommended that J erg ens’s complaint be dismiss ed beca use Ohio had n o t

cre ated any liberty interest in rele ase on parole

. The mag istrate judge further noted that even if Ohio had cre ated a liberty interest, due proce ss in the parole context re quires only that the prisoner have

an opportunity to be hear d and rec eive a statement of rea sons for denying parole , both of which
J erg ens was aff

orded in t h i s ca s e. The district court adopted the mag istrate judge ’s repor t, concluding that beca

use there was no constitutional liberty interest at stake, § 1983 does not provide relief for Jerg ens’s c laim that he was de nied meaning ful consider ation. J erg ens appe aled.

The para g raphs in the complaint appea r to be misnumbered. The rec ord sug g ests that this 2 is merely a cle rica l error

and that no pag es ar e missing f rom the complaint. 3No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

II. ANALYSIS
A. Jer gens’s Motion to Take Judicial Notice
Be fore addre ssing the merits of J erg ens’s appea l, we must first rule on his motion for judicial notice, in which J erg ens seeks—f or the first time—to introduce materia ls that wer e filed in rela ted
state-c ourt proce eding s, including motions, hear ing transcr ipts, and documentation rela ting to his parole proce eding s. These materia ls, howeve r, are not appropr iate for the taking of judicial notice.
C f. Fe d. R. Evid. 201(b) (per mitti ng judicial notice of fac ts “not subject to rea sonable disp u t e beca use [t hey are ] (1) g ener ally known within the trial court’s ter ritorial jurisdiction; or (2) can be

acc urate ly and rea dily deter mined from source s whose acc urac y cannot rea sonably be questioned”)

. Although we are cer

tainly permitted to take judicial notice of court rec ords and judicial proce eding s under some circ umstances, such as to confirm the fac t of filing, W inget v. JP Morgan Chase Bank,
N.A. , 537 F.3d 565, 576 (6th Cir. 2008), cert. denied , 129 S. Ct. 2159 (2009), we may not do so in order to discern the truth of the fac ts asser ted within that filing. This is particula rly so in case s like this one, when the s ignif

icanc e of the records sought t o be judi cially n o ticed is subject t o dispute, United States v. Husein , 478 F.3d 318, 337 (6th Cir. 2007), or when the re co rd s are introduced

mere ly to bolster fac tual alleg ations that should have been prese n t ed in the initial complaint, Armengau v. Cline , 7 F. App’x 336, 345 (6th Cir. 2001) (unpublished opinion) (re versing a district
court decision to take judicial notice o f facts in the state-c ourt proce eding s and stating in the qualified-immunity context that “it is emphatica lly not t h e job of t he court to salvag e a complaint by taking judicial notice of fac ts the plaintiff should have i n cluded in an amende d complaint or a

4No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.
responsive pleading ”). Moreove r, beca use these documents wer e not submitt ed to the district court,

we are under no obliga tion “to enlar g e the rec ord on appea l by taking judicial notice of extra-re cord fac ts f or the fir st tim e.” United States v. O’De ll , 805 F.2d 637, 643 (6th Cir. 1986)

. Acc ording ly ,

we deny J erg ens’s motion. Reg ardle ss, ev en i f we were to consider the documents he proposes, beca use J erg ens’s claim is fore closed by Supreme Court and Six th Circuit prec edent, those materia ls would not chang e the outcome of his case

. B. Th e Distr ict Court ’s Dism issal Turning to the di strict court’s order, J erg ens i nsists that Ohio law crea tes a l i b er ty interest
in a meaning ful parole proce ss and that the district court there fore err ed i n d i s m i s s i n g his case . Be cause the district court dismiss ed J erg ens’s case pursuant to Fe dera l R ule of Civil Procedur e 12(b)( 6), we revie w the complaint d e n o v o , acc epting J erg ens’s alleg ations as true and taking all

rea sonable infe renc es in his favor. Jones v . City of Cincinnati , 521 F.3d 555, 559 (6th Cir. 2008),

cert. denied , 555 U.S. 1 0 9 9 (2009). We do not, howeve r, “ac cept as true leg al conclusions or

unwar rante d fac tual infere nces.” Id. (interna l quotation marks omitted). The Supreme Court ma

ndates a two-step analy sis f or proce dural due-pr ocess claims: “We first ask whether there exis ts a liberty or proper ty interest of which a person has been deprive d, and
if so we ask whether the proce dures followed by the State wer e constitutionally sufficie nt.” Swarthout v. Cooke , 131 S. Ct. 859, 861 (2011). As to the first step, it is now axiom atic that “[t] here
i s no constitutional or inhere nt rig ht of a convicted person to be conditionally rele ased befor e t h e expiration of a valid sentenc e.” Gree nholtz v. Inmates of Neb. Penal & Corr. Complex , 442 U.S. 1,

5No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

7 (1979). States in fac t have no duty even to establish a sy stem for parole

. Id. When such a sy stem is in place , howeve r, the exis tence of a liberty interest in rele ase is entirely depende nt on state law.
See id. at 12. Thus, if state statutes vest complete discretion to the parole board to deter mine parole elig ibilit y , no liberty interest exis ts. Ky. Dep’ t of Corr. v. Thompson , 490 U.S. 454, 464–65 (1989).
I f, on the other hand, state law wre sts from the board selec ted aspec ts of its discretion—for example by unequivoca lly requiring rele ase upon the prisoner’ s demonstration of cer tain co n d i t i ons, see Gree nholtz , 442 U.S. at 11, 13, or in the absenc e of others, see Board of Pardons v. Allen , 482 U.S. 369, 377–78 (1987)—a

liberty interest prote ctable unde r the Due Process Clause is re cog nized.
I n acc ordanc e with these principles, we beg in with the question whether Ohio law rec og nizes the exis tence of a liberty interest in parole

. That answe r is g overne d direc tly by our rec ent opinion
in Michae l v. Ghee , 498 F.3d 372, 378 ( 6th Cir. 2007), cert. denied , 553 U.S. 1005 (2008), whic h held under the same statutory and regulatory structure rele vant to the prese nt case that “the state of Ohio has not cre ated a liberty interest in parole elig ibilit y , as it has a completely discretionar y parole
sy stem.” (interna l quotation marks omi tted); see also Jago v. Van Curen , 454 U.S. 14, 20 (1981)

3 (conc luding under an ear lier simil ar reg ulatory structure that “[p] arole for Ohio prisoners lies wholly

Ohio Revised Code § 2967.03, which g overns the OAPA’s authority , states in rele vant part 3 that the OAPA “ may . . . g rant a parole to any prisoner for whom parole is authoriz ed , if in its judgme nt there is rea sonable g round to believe t h at

. . . paroling the prisoner would further the interests of justice and be consistent with th e welfa re and secur ity of society” (empha sis added)

. Although the Ohio Administrative Code identifies more specific proce dures for rele asing prisoners on parole , these too are discretionar y . See Ohio Admin. Code § 5120:1-1-07(A ) (“A n inmate may be rele ased on or about the date of his elig ibilit y for rele ase, unless the parole board

. . . deter mines that he should not be re lease d on such date for one or more of the following rea sons . . . .”). 6No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

wit h i n t h e d i s cretion of the OAPA,” and thus that “[t] he statutes which provide for parole do not

cre ate a protec ted liberty interest for due proce ss purposes” (interna l quotation marks omitted)). Thus, it is well established that Ohio law does not cre ate a protec ted liberty interest in rele ase from parole

. 4
I n attempting to identify a rele vant liberty interest in spite of these adver se authorities,
J erg ens relies primarily on two prec edents. The first is the Ohio Supreme Court de cision in Layne

v. Ohio Adult Parole Authority , 780 N.E.2d 548, 555 (Ohio 2002), which, while rec og nizi ng the broad discretion gi v en t o the OAPA under Ohio statutes, held that the OAPA’s parole g uidelines nonetheless require that criminal off e n ders as a proce dural matter rec eive “mea ningf ul consideration for parole .” Second is W ilkinson v. Dotson , 544 U.S. 74, 81

– 8 2 (2005), which rec og nized that constitutional challeng es to parole -boar d proce dures are cog nizable under 42 U.S.C. § 1983 so long

as the action’s succe ss is not depende nt on demonstrating the invalidity of co n finement. Neither decision helps Jerg ens’s c ase.

J erg ens also seems to argue that Bog an’s “off ici al ” statement that he would not consider 4 J erg ens’s attorney ’s p roposed corr ections to J erg ens’s parole file constitutes an officia l policy statement that somehow c urbs the OAPA’ s discretion and c reates a liberty interest. Appellant B r. at 7. Be cause J erg ens did not raise this argument below, we need not consider it on appea l. MolinaCrespo v. U.S. Merit Sys. Protection Bd. , 547 F.3d 651, 662 (6th Cir. 2008) (“[T]his court will not co nsider claims that are prese nted for the first time on appea l nor arg uments that are n o t p ro p er l y raised below.” (interna l quotation marks omitted)). Fur thermore , even assuming that the import of Bog an’s statement could be stretche d to the deg ree that J erg ens proposes, the Ohio Supreme Court has made clea

r that the OAPA is not bound by its own policy g uidelines beca use “they place no ‘substantive limit s on officia l discretion.’” State ex rel. Hattie v. Goldhardt , 630 N.E.2d 696, 698 (Ohi o 1994) (quoting Olim v. W akinek ona , 461 U.S. 238, 249 (1983))

. Thus, even if Bog an’s statement could proper ly be classified as a policy statement, that conclusion would have no impact on the OAPA’s discr etion or the e x istence of a liberty interest. 7No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

First and fore most, the exis tence of state-mandated proce dural require ments does not, in and of itself, cre ate a protec t ed liberty interest. Olim v. W akinek ona , 461 U.S. 238, 250 n.12 (1983) (“[A]n expectation of rec eiving proce ss is not, without more, a liberty interest protec ted by the Due
Process Clause.”) ; Sweeton v. Brown , 27 F.3d 1162, 1164 (6th Cir. 1994) (“[P] roce dural statutes and
reg ulations g overning parole do not cre ate fede ral proce dural due proce ss rig hts

. . . .”), cert. denied , 513 U.S. 1158 (1995); Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth. , 929 F.2d 233,
237 (6th Cir. 1991) (eva luating Ohio statutory and regulatory provisions g overning parole and concluding “that procedura l requirem en t s alone cannot establish a li berty interest, and a viol ation of state reg ulations requiring a particula r kind o f hear ing cannot violate the Due Process Clause absent some independe nt basis for finding a liberty interest that has been taken awa y ” (citation and internal quotation marks omitted))

. 5

This case does not i n volve a challeng e to a parole decision as based either on blatantly 5 unconstitutional policies or considerations, such as a prisoner’ s rac e or relig io n , or on a wholly arbitra ry decision-making proce ss. Cf. Burkett v. Love , 89 F.3d 135, 139 (3d Cir. 1996) (noting that even fully discretionar

y statutes g overning state parole boards do not permit “totally arbitra ry parole decisions founded on impermissible criter ia” (i n t ernal quotation marks omitted)). But cf. Bell v. Anderson , 301 F. App’x 459, 462 (6th Cir. 2008) (unpublished opinion) (citing B urkett and observing that the rea soning in that and simil ar case s has not been adopted in this circ uit). Neither this decision nor any binding circ uit prec edent, howeve r, fore closes the possibili ty that, in an appropr iate case , a parole board’ s relianc e on unconstitutional fac tors—or even on false information in the parole file—could constitute a due-pr ocess violation. But in this case , J erg ens’s nonspecific alleg ations of falsity simply fail to make out such a claim. Cf. Jones v. Ray , 279 F.3d 944, 946 (11th Cir. 2001) (“While we have held that the use of false information in a p ar o l e fi l e ca n be a due proce ss violation, prisoners cannot m ak e a co n clus ory alleg ation reg arding the use of such information as the basis of a due proce ss claim.”)

. I n fac t, J erg ens has not asser ted at all that the use of false information independe ntly constituted a due-pr ocess violation; nor has he claimed that the OAPA’s actions wer e g rounded in constitutionally impermissible considerations. I nstead, J erg ens’s claim rests on the broade r asser tion that, as a proce dural matter, he was denied the meani n gful

8No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

What is more, even i f J er gens did have a protected l iberty interest, “the question of which due proce ss require ments apply is one of fede ral law, not [st ate] law.” Cooke , 131 S. Ct. at 862 n.*.
T h us, whether the parole board met Ohio’s state-law require ments for meaning ful review as established by Layne is not dispositi ve of J erg ens’s federal due-pr ocess claim; as a constitutional matter, J erg ens rec eived adequate proce ss so long as “he was allowed an opportunity to be hear d and

was provided a statement of the rea sons why parole was denied.” Id. at 862. I ndeed, the Supreme 6
Court has ex plicitly reje cted the view that fede ral courts must ap p l y state procedura l rules that g o bey ond the scope of the minimum require d under the Due Process Clause, concluding that “[s] uch

hear ing tha t is required unde r Ohio l aw. As discussed above , in the absenc e of a protec ted liberty interest, his purely proce dure- based claim must fail. We t here fore leave the merits of the rela ted due-pr ocess que stions for another day

. I t should be noted that J erg ens also relies extensively on the Ohio Court of Appea ls decision 6 in Ankrom v. Hageman , Nos. 04AP-984, 04AP-985, 04AP-986, 04AP-987, 04AP-988, 04AP-989, 04AP-990, 04AP-991, 04AP-993, 04AP-994, 2005 WL 737833 (Ohio Ct. App. Mar. 31, 2005), to support his contention that Oh i o recog nizes a rig ht to meaning ful revie w during the parole proce ss—another argument that appea rs for the first time on appea l. Apply ing Layne v. Ohio Adult Parole Authority , 780 N.E.2d 548 (Ohio 2002), to a class action involving parole -elig ible prisoners who had pleade d to lesser- included offen s es but wer e serving leng thier sentenc es based on the OAPA’s det er m i n ati on that they fell into a highe r sentenc ing cate g ory than war rante d under the offe nse of conviction, Ankrom aff irmed a trial court decision finding that such action by the OAPA constituted a denial of meaning ful consideration in violation of Layne

. Ankrom , 2005 WL 737833, at *7. J erg ens now asser

ts that he is a member of the class of prisoners entitled to a new hear ing in the wake of the Ankrom decision and that the meaning ful-hea ring require ment there fore applies to J erg ens “not only in g ener al, but specific ally .” Reply Br

. at 1. Apar t from his relianc e on a g ener al rig ht to meaning ful revie w derive d from Layne , howeve r, J erg ens did not raise this argument below or even cite the Ankrom case. Acc ording ly , we need not consider the argument here

. MolinaCre s p o , 5 4 7 F. 3d at 662. I n any event, J erg ens’s relianc e on Ankrom suffe rs from the same defic iencies as his relianc e on Layne , and thus, even if we wer e to consider the argument, it does not support his claim. 9No. 11-3835

Jerge ns v. State of Ohio Dep’ t of Rehab. and Corr. Adult Parol e Auth.

rea soning would subject to fede ral-c ourt merits revie w th e application of all state-pr escr ibed
proce dures in case s involving li berty or property interests.” Id. at 863; see also S w ee t o n , 27 F.3d
at 1165 (“The parole authorities of the State of Michig an may have been require d to follow their own
proce dural statutes and reg ulations on parole . . . a s a matter of state law, but there is not now any viable leg al theory by which Michig an state authorities are require d to follow such proce dural rules

as a matter of

federal due proce ss.”). I n light of these prec edents, that Ohio courts have established
proce dural require ments g overning OAPA hear ings does not support J erg ens’s fede ral claim under § 1983. See Michae l , 498 F.3d at 374 (“42 U.S.C. § 1983 does not provide relief for a violation of
state law.”)

. J erg ens is thus unable to state a viable claim for relief ag ainst either the OAPA or the individual defe ndants Bog an and Venter s, and the district c ourt was corr ect in dismiss ing his case . III. CONCLUSION
Be cause Ohi o l aw d o es not cre ate a liberty interest in parole , J erg ens’s § 1983 claim challe n gi n g the OAPA’s and the individual parole -boar d members’ implementation of Ohio’s meaning ful-hea

ring require ments in deter mining his elig ibilit y for parole n ec es s ar ily fails.
Acc ording ly , we AF F IRM the judg ment of the district cour t.

10