UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LEWIS LEROY MCINTYRE, 

 

 Plaintiff, 

 Civil Action 2:17-cv-1026 

 v. Judge Michael H. Watson 

 Magistrate Judge Chelsey M. Vascura 

ANDRE IMBRONGNO, et al.,

 

 Defendants. 

 

ORDER and REPORT AND RECOMMENDATION

 Plaintiff McIntyre, an inmate at the Franklin County Jail, is proceeding without the 

assistance of counsel. He brings this action under 42 U.S.C. § 1983 against the Chair of the Ohio 

Parole Board, the Director of the Ohio Department of Rehabilitation and Correction, and the 

Correctional Records Sentence Computation Auditor of the Ohio Bureau of Sentence 

Computation. Plaintiff asserts four claims under the Eighth and Fourteenth Amendments to the 

United States Constitution; all of the claims relate to the Defendants’ alleged failure to recognize 

a final appealable order issued by the Summit County, Ohio, Court of Common Pleas on 

February 3, 2016, twenty-five years after that court had failed to issue a complete final order at 

the time of Plaintiff’s initial sentencing. The result of the Defendants’ failure to recognize the 

2016 order, Plaintiff contends, is that he is effectively ineligible for parole and will be required to 

serve the maximum sentence imposed by the Court of Common Pleas. 

 This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28 

U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of 
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Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim 

upon which relief may be granted, or seeks monetary relief from a defendant who is immune 

from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 

(6th Cir. 1997). Having performed the initial screen, for the reasons that follow, the undersigned 

RECOMMENDS that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to 

state a claim on which relief may be granted. 

 This matter is also before the Court for consideration of Plaintiff’s motion for leave to 

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s 

motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 

28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he had the sum of 

$2.35 in his prison account as of October 29, 2017. Plaintiff has monthly income of $15.00. 

That amount is insufficient to pay the full filing fee. 

 Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at 

North Central Correctional Complex is DIRECTED to submit to the Clerk of the United States 

District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater 

of either the average monthly deposits to the inmate trust account or the average monthly balance 

in the inmate trust account, for the six-months immediately preceding the filing of the 

Complaint. After full payment of the initial, partial filing fee, the custodian shall submit 20% of 

the inmate’s preceding monthly income credited to the account, but only when the amount in the 

account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks 

should be made payable to: Clerk, United States District Court. The checks should be sent to: 

 
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 Prisoner Accounts Receivable 

 260 U.S. Courthouse 

 85 Marconi Boulevard 

 Columbus, Ohio 43215 

The prisoner’s name and this case number must be included on each check. 

 It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of 

fees or costs and that judicial officers who render services in this action shall do so as if the costs 

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff 

and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order 

to the Court’s financial office. 

I. 

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to 

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are 

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from 

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the 

statute, which provides in pertinent part: 

 

1

Formerly 28 U.S.C. § 1915(d). 
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(2) Notwithstanding any filing fee, or any portion thereof, that may have been 

paid, the court shall dismiss the case at any time if the court determines that-- 

 * * * 

 (B) the action or appeal-- 

 (i) is frivolous or malicious; 

 (ii) fails to state a claim on which relief may be granted; or . . . . 

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or 

upon determination that the action fails to state a claim upon which relief may be granted. See 

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 

 To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements 

set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a 

“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 

Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . 

. . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 

cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it 

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 

550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 

12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual 

matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 
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U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Id. In considering whether this facial plausibility standard is met, a Court must 

construe the complaint in the light most favorable to the non-moving party, accept all factual 

allegations as true, and make reasonable inferences in favor of the non-moving party. Total 

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 

2008) (citations omitted). The Court is not required, however, to accept as true mere legal 

conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550 

U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than 

formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, 374 F. App’x 

612, 614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). 

II. 

 Plaintiff was sentenced in 1991 to terms of eight to fifteen and eight to twenty-five years. 

Plaintiff alleges that he served these terms concurrently, but he also alleges that he was first 

eligible for parole consideration in 2007, before the expiration of his minimum term. In any 

event, the Ohio Parole Board granted Plaintiff parole in 2007. 

 Two years later, Plaintiff committed new offenses while on parole. His parole was 

revoked, and he was sentenced to four years of imprisonment. That sentence was reduced to 

three years on appeal, and the Ohio Parole Board again considered Plaintiff for parole in 2012. It 

denied parole and directed that Plaintiff’s incarceration be continued until May 1, 2016. 

 At the time of Plaintiff’s 1991 conviction, the Court of Common Pleas failed to dismiss 

or otherwise dispose of an amended felonious assault charge on which the jury had not convicted 

Plaintiff. In February 2016, the Court of Common Pleas issued a final appealable order 
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dismissing that charge for the first time. Plaintiff alleges that the February 2016 order triggered 

his first opportunity to appeal his 1991sentence and that he has now appealed it. 

 In response to the February 2016 order, the Ohio Parole Board held a parole 

consideration hearing in March 2016. Plaintiff alleges that he informed the Ohio Parole Board 

officials at that hearing that, in light of the February 2016 order, the Parole Board did not have 

jurisdiction over Plaintiff. He further alleges that the “head of the parole proceedings” advised 

Plaintiff that he should file a habeas corpus action if he wanted to be released. (ECF No. 1, 

PAGEID #28). “Plaintiff then walked out of the proceedings and was later informed that he was 

continued until 2021.” (Id.). 

 Plaintiff’s claims in this action are premised on his assertions (1) that the Due Process 

Clause entitles him to parole eligibility consideration and (2) that Defendants’ actions depriving 

him of parole eligibility consideration and release and effectively requiring him to serve the 

maximum term of imprisonment imposed by the Court of Common Pleas amounts to cruel and 

unusual punishment. Proceeding under either of those theories, Plaintiff has not alleged facts 

that, if true, would entitle him to the relief he seeks. 

 “A plaintiff bringing a § 1983 action for procedural due process must show that the state 

deprived him or her of a constitutionally protected interest in ‘life, liberty, or property’ without 

due process of law.” Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006) (quoting 

Zinermon v. Burch, 494 U.S. 113, 125 (1990)). Thus, because Plaintiff seeks to establish a due 

process violation relating to Defendants’ actions in connection with his eligibility for parole 

consideration, he “must first show that he . . . has a protected property or liberty interest in 

parole.” Settle v. Tenn. Dep’t of Corrs., 487 F. App’x 290, 290–91 (6th Cir. 2012) (citations 

omitted). 
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 A state prisoner does not have a constitutional right to be released on parole before the 

expiration of the maximum term of his sentence. Greenholtz v. Inmates of the Nebraska Penal 

and Corr. Complex, 442 U.S. 1, 7 (1979). “A liberty interest in parole eligibility derives only 

from state law.” Id. at 291 (citations omitted); see also Jackson v. Jamrog, 411 F.3d 615, 619 

(6th Cir. 2005) (“[T]here is no fundamental right to parole under the federal constitution.”). 

“Ohio law does not create a protected liberty interest in release from parole,” Jergens v. State of 

Ohio Dep’t of Rehab. & Corrs. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012), nor 

do the Ohio parole statutes upon which Plaintiff relies create a constitutional right to be released 

on parole. Jago v. Van Curen, 454 U.S. 14, 20 (1981). Because Ohio law does not create a 

liberty interest in parole, Plaintiff cannot state a viable § 1983 due process claim challenging 

Defendants’ eligibility determination. 

 The Eighth Amendment prohibits cruel and unusual punishment in the form of conduct 

that involves the unnecessary and wanton infliction of pain. Ivey v. Wilson, 832 F.2d 950, 954 

(6th Cir. 1987). The denial of parole does not implicate the Eighth Amendment’s prohibitions. 

Carnes v. Engler, 76 F. App’x 79, 81 (6th Cir. 2003); Wolfel v. Timmerman-Cooper, No. 2:07-

cv-1079, 2008 WL 5188188, at *9 (S.D. Ohio Dec. 10 2008); Clumm v. Warden, Chillicothe 

Corr. Inst., No. 2:08-cv-365, 2008 WL 4346797, at *2 (S.D. Ohio Sept. 18, 2008). Accordingly, 

Plaintiff has not stated a viable § 1983 claim based upon the Eighth Amendment. 

 

 
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IV. 

In sum, because Plaintiff has failed to state a claim upon which relief may be granted, it 

is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 

§ 1915(e)(2). 

 For the reasons set forth above, Plaintiff ’s motion for leave to proceed in forma pauperis

under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) In addition, it is 

RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 28 

U.S.C. §§ 1915(e)(2)(B) and 1915A. 

 The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison 

cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s 

financial office in Columbus. Finally, the Clerk is DIRECTED to send a copy of this order to 

the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215. 

PROCEDURE ON OBJECTIONS 

 If Plaintiff seeks review by the District Judge of this Report and Recommendation, he 

may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 Plaintiff is specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 
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judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

 

IT IS SO ORDERED. 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE