discretionary and neither creates an expectation of parole nor guarantees due
process in the parole determination process.” (citation omitted)). The Sixth
Circuit has also explicitly rejected the argument Plaintiff makes here—that Ohio
Administrative Code § 5120:1-1-10 creates a liberty interest entitled to
constitutional due process protection. Willis, 1990 WL 63551, at *1. “Since
[Plaintiff] has neither an inherent constitutional right to parole nor a protected
liberty interest created by mandatory state parole laws, he cannot maintain a due
process claim based upon the denial of a parole hearing.” Utley v. Rose, 201
F.3d 442, 1999 WL 1252880, at *1 (6th Cir. Dec. 14, 1999) (analyzing
Tennessee law which, like Ohio law, does not create a liberty interest in parole
eligibility). Accordingly, the R&R correctly concluded that Plaintiff failed to state a
due process claim.

Finally, the Sixth Circuit has held that “the decision to postpone [a
plaintiff's] parole hearing indefinitely does not constitute cruel and unusual
punishment.” Willis, 1990 WL 63551, at *1. Thus, the R&R also correctly
concluded that Plaintiff failed to state an Eighth Amendment claim.

For the reasons set forth above, Plaintiff's objections are OVERRULED.
The R&R is ADOPTED and AFFIRMED, and Plaintiffs Complaint is DISMISSED

pursuant to § 1915(e)(2).

IT IS SO ORDERED. y, LAl U tow

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:17-cv-1026 Page 4 of 4


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION
Lewis Leroy McIntyre, Jr.,
Plaintiff,
Vv. Case No. 2:17-cv-1026
Andre Imbrogno, et al., Judge Michael H. Watson
Defendants. Magistrate Judge Vascura

OPINION AND ORDER

Upon initial screening, Magistrate Judge Vascura issued a Report and
Recommendation that recommended the Court dismiss Plaintiffs pro se prisoner
civil rights complaint for failure to state a claim. R&R, ECF No. 6. Pursuant to
the prisoner mailbox rule, Lewis Mcintyre, Jr. (“Plaintiff’) has timely objected.
Obj., ECF No. 7.

Magistrate Judge Vascura issued the R&R pursuant to Federal Rule of
Civil Procedure 72(b) and 28 U.S.C. § 636(b). Under Rule 72(b), the
Undersigned must determine de novo any part of the Magistrate Judge's
disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3). The
Undersigned may accept, reject, or modify the R&R, receive further evidence, or
return the matter to the Magistrate Judge with instructions. /d. Upon de novo
review, the Court AFFIRMS and ADOPTS the R&R.

The Court turns first to Plaintiffs contention that the R&R made an error of

fact. Plaintiff objects that the R&R factually erred in stating, “[i]Jn response to the


February 2016 order, the Ohio Parole Board held a parole consideration hearing
in March 2016.” R&R 6, ECF No. 6. Plaintiff argues that the March 2016 parole
eligibility hearing was not premised on the February 2016 order but rather the
1991 order that Plaintiff contends is null and void. In support, Plaintiff cites an
Ohio Department of Rehabilitation & Correction Notice of Scheduled Parole
Release Consideration Hearing, dated January 25, 2016, which advised Plaintiff
of a parole eligibility hearing to be held in March of 2016. Obj. Ex. F, ECF No. 7-
1, PAGEID # 155. Plaintiff contends that the March 2016 hearing, which was
noticed as early as January of 2016, could not have been held in response to an
Order that was issued in February of 2016.

Plaintiff's objection is OVERRULED as irrelevant. Plaintiffs ultimate
contention, and his second objection, is that the R&R erred in its legal
determination that he failed to state a claim for violation of due process and right
to be free from cruel and unusual punishment. Even if the contested sentence in
the R&R is factually inaccurate, and the March 2016 parole hearing was not held
on the February 2016 order, the R&R accurately understood and set forth the
basis of Plaintiff's claim—that Plaintiff has a due process right to a parole
eligibility consideration on the February 2016 order and that the denial of that
tight violated due process and amounted to cruel and unusual punishment. R&R
6, ECF No. 6.

Moreover, the R&R correctly concluded that Plaintiff failed to state a claim

for either a due process or Eighth Amendment violation. “To establish a due

Case No. 2:17-cv-1026 Page 2 of 4


process violation [based on a denial of a parole hearing], a complainant must first
show that he or she has a protected property or liberty interest in parole.” Settle
v. Tenn. Dep't of Corr., 487 F. App’x 290, 2012 WL 5477117, at *1 (6th Cir. 2012)
(citations omitted). “A liberty interest in parole eligibility derives only from state
law.” Id. (citations omitted). “Ohio law does not create a liberty interest in parole
eligibility or release on parole.” Johnson v. Mohr, No. 2:15-cv-86, 2015 WL
1526804, at *3 (S.D. Ohio April 3, 2015) (citing Jergens v. State of Ohio Dep’t of
Rehab. and Corr. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012)).
Indeed, the Sixth Circuit has rejected an inmate’s claim that Ohio law
creates a liberty interest in a meaningful parole process and that the denial of a
meaningful parole hearing therefore violated his due process rights. Jergens,
492 F. App’x at 569-71. After finding that Ohio law does not recognize a liberty
interest in release on parole, the Sixth Circuit stated in Jergens that state-
mandated procedural requirements—such as for meaningful consideration for
parole—‘“dof] not, in and of [themselves], create a protected liberty interest.” /d.
at 571 (citation omitted). Thus, the court rejected the inmate plaintiffs claim
“that, as a procedural matter, he was denied the meaningful hearing that is
required under Ohio law” finding that “in the absence of a protected liberty
interest, his purely procedure-based claim must fail.” /d. at 571 n.5; See also
Willis v. Capots, 902 F.2d 1570 (Table), 1990 WL 63551, at *1 (6th Cir. May 15,
1990) (“First, [Plaintiff] has no protected right to a parole hearing. Ohio law does
not create a liberty interest in a parole hearing. [The Ohio revised code] is purely

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