IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CURTIS AL’SHAHID, 

Plaintiff, 

 Civil Action 2:18-cv-00033 

 Judge Michael H. Watson 

 v. Chief Magistrate Judge Elizabeth P. Deavers 

 

STUART HUDSON, et al., 

 Defendants. 

ORDER and REPORT AND RECOMMENDATION 

 Plaintiff, Curtis Al’Shahid, a state inmate who is proceeding without the assistance of 

counsel, brings this action under 42 U.S.C. § 1983 against Defendants Stuart Hudson, the 

Director of the Ohio Department of Rehabilitation and Corrections (“ODRC”), and Trayce 

Thalheimer, the Chairperson of the Ohio Board Authority. This matter is before the Court upon 

consideration of Defendants’ Motion to Dismiss (ECF No. 16), Plaintiff’s Response in 

Opposition (ECF No. 21), Defendants’ Reply in Support (ECF No. 22), and Plaintiff’s Motion to 

Strike Defendants’ Reply (ECF No. 23). For the following reasons, it is RECOMMENDED

that Defendants’ Motion to Dismiss (ECF No. 16) be GRANTED IN PART and DENIED IN 

PART. Furthermore, Plaintiff’s Motion to Strike Defendants’ Reply (ECF No. 23) is DENIED. 

PROCEDURAL HISTORY 

At the outset of this action, Plaintiff requested leave to proceed in forma pauperis. (ECF 

No. 1.) The Court granted Plaintiff’s Motion for Leave to Proceed in forma pauperis on April 4, 

2018. (ECF No. 5.) On the same date, the Undersigned performed an initial screen and 
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recommended that the Court dismiss Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2). 

Plaintiff filed an Amended Complaint on April 5, 2018 (ECF No. 7) and an Objection to the 

Report and Recommendation on April 16, 2018 (ECF No. 8). On November 20, 2018, upon 

review of the Amended Complaint and Plaintiff’s Objection, the Undersigned withdrew the 

Report and Recommendation and permitted Plaintiff to proceed with his claims against 

Defendants regarding alleged procedural deficiencies in his parole proceedings. (ECF No. 10.) 

On December 26, 2018, Defendants filed a Motion to Dismiss. (ECF No. 16.) On 

January 10, 2019, Plaintiff filed a Response in Opposition to Defendants’ Motion. (ECF No. 

21.) Defendants filed a Reply in support of their Motion on January 17, 2019. (ECF No. 22.) 

On January 24, 2019, Plaintiff filed a Motion to Strike Defendants’ Reply. (ECF No. 23.) As an 

initial matter, the Undersigned takes up the Motion to Strike. 

MOTION TO STRIKE

 Federal Rule of Civil Procedure 12(f) permits a court to strike from a pleading “an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 

Civ. P. 12(f). Notably, “[t]he striking of a portion of a pleading is a drastic remedy which is 

seldom granted absent a showing of real prejudice to the moving party.” Hughes v. Lavender, 

No. 2:10-CV-674, 2011 WL 2945843, at *2 (S.D. Ohio July 20, 2011) (citing Armstrong v. 

Snyder, 103 F.R.D. 96, 100 (E.D. Wis. 1984)). 

 Plaintiff moves to strike Defendants’ Reply on the grounds that “[t]he allegations are 

unrelated to Plaintiff’s ‘Legal Claims’ that [were] raised in his Amended Complaint.” (ECF No. 

23, at pg. 1.) Specifically, Plaintiff asserts that “[t]he ‘Due Process’ claim raised by Defendants 

by and through counsel for the first time is not only inaccurate [and] misleading but contrary to 

[Plaintiff’s] due process claim raised [in an earlier filing].” (Id.) Plaintiff fails in his Motion to 
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demonstrate why the drastic remedy of striking Defendants’ Reply is warranted. Plaintiff first 

argues that “the due process claim has already been raised by the Plaintiff, presented, reviewed 

and ruled on by this court.” (Id. at pg. 3.) 

Plaintiff cites to his Objection to the Report and Recommendation recommending that the 

Court dismiss Plaintiff’s claims upon an initial screen pursuant to 28 U.S.C. § 1915(e)(2) (ECF 

No. 8), and the Court’s Order withdrawing the Report and Recommendation and permitting 

Plaintiff’s claims to proceed (ECF No. 10). Although the Court withdrew the Report and 

Recommendation and permitted Plaintiff to proceed, it did not analyze or otherwise rule on the 

merits of Plaintiff’s due process claims, as Plaintiff appears to assert. Rather, the Court’s Order 

withdrawing the Report and Recommendation permitted Plaintiff to proceed with his claims 

against Defendants regarding alleged procedural deficiencies in his parole hearings. (Id.) The 

Court’s Order does not prohibit Defendants from making arguments regarding Plaintiff’s due 

process claims. Nor does it prohibit Defendants from making Eleventh Amendment arguments, 

as Plaintiff also appears to suggest. Accordingly, Plaintiff’s Motion to Strike (ECF No. 23) is 

DENIED. 

MOTION TO DISMISS STANDARD OF REVIEW

Defendants bring their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted. To 

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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). Thus, Rule 8(a) “imposes legal and 
4 

factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank, 

F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original). 

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)). 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), “a 

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on 

its face.’” Id. (quoting Twombly, 550 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. “The plausibility of an inference depends on 

a host of considerations, including common sense and the strength of competing explanations for 

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). 

In considering whether a complaint fails to state a claim upon which relief can be 

granted, the Court must “construe the complaint in the light most favorable to the plaintiff, 

accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio 

Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 

2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet 

that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a 

cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. 

Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts 

sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts 
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intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft 

Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679. 

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., No. 08-3978, 2010 

WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 

(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the 

nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 

2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). 

MOTION TO DISMISS ANALYSIS

A. Habeas Corpus Petition and Failure to State a Claim Under § 1983 

In Defendants’ Motion to Dismiss, they argue that because Plaintiff’s initial Complaint 

requested “immediate release” from prison, it should have been filed as a habeas corpus petition 

rather than a 42 U.S.C. § 1983 action. (ECF No. 16, at pg. 7.) As Plaintiff points out, however, 

in his Amended Complaint he omits the request for “immediate release.” (ECF No. 21, at pg. 3.) 

“Generally, amended pleadings supersede original pleadings.” Hayward v. Cleveland Clinic 

Found., 759 F.3d 601, 617 (6th Cir. 2014). Defendants accept this clarification in their Reply 

but assert that “this still does not solve the issue of Plaintiff’s remaining requests for relief.” 

(ECF No. 22, at pg. 2.) 

Specifically, Defendants argue that Plaintiff’s request for $80,000 in compensatory 

damages, which Plaintiff alleges is “based upon ‘evil intent’ prolonging and deliberately denying 

[Plaintiff] a meaningful parole board hearing as mandated by House Bill 86, [§] 10” is not an 

appropriate request for relief in a § 1983 action because “House Bill 86 does not confer any 

protected liberty interests upon Plaintiff that he could vindicate with a § 1983 action.” (Id.) 
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However, in a similar case from 2015, this Court held that incorrect information reported to the 

Ohio General Assembly regarding House Bill 86, when viewed in the light most favorable to a 

plaintiff, could deprive a plaintiff of his or her Fourteenth Amendment . . . Due Process right to a 

correct parole record[.]” Kinney v. Mohr, No. 2:13-cv-1229, 2015 WL 1197812, at *5 (S.D. 

Ohio March 16, 2015). The similarity of Kinney to the instant action bears a recounting of 

Kinney’s background and the Court’s holding. 

Plaintiff Jack W. Kinney . . . alleges Defendants violated his Fourteenth 

Amendment rights when they denied him a meaningful statutorily-based parole 

eligibility hearing. He has brought a claim under 42 U.S.C. § 1983, which 

guarantees that “every person who, under color of any statute . . . of any state 

subjects . . . , or causes to be subjected, any citizen of the United States . . . to the 

deprivation of any rights, privileges, or immunities secured by the Constitution and 

laws, shall be liable to the party injured.” 42 U.S.C. § 1983 (2006). This matter is 

before the Court on [Defendants’] Motion to Dismiss. 

The complaint alleges that Defendants willfully denied Plaintiff a meaningful, 

statutorily-based parole eligibility hearing for inmates aged sixty-five and older, as 

required by House Bill 86 § 10. Plaintiff alleges that Defendants knowingly sent 

false and biased information to the legislature in a report explaining why Plaintiff 

was not suitable for parole review under House Bill 86 § 10. This report is 

hereinafter referred to as “HB 86 Report.” 

In 2011, the Ohio legislature passed Section 10 of House Bill 86, a law affecting 

any parole-eligible inmates 65 years and older. See 2011 H 86, § 10, eff. 9-30-11. 

Section 10 of House Bill 86 states that “the Department of Rehabilitation and 

Correction [“DRC”] shall thoroughly review the cases of all parole-eligible inmates 

who are sixty-five years of age or older and who have had a statutory parole 

consideration hearing.” 2011 H 86, § 10, eff. 9-30-11 (emphasis added). Upon 

completion of this review, the DRC is required to send a report to the Ohio General 

Assembly summarizing the findings of its review and explaining why each of those 

inmates has not been paroled or otherwise released from custody. See [i]d. In 

addition, the Chair of the Parole Board is required to present to the Board the cases 

of these inmates. Id. Upon presentation of the case of an inmate, “the Board, by 

majority vote, may choose to rehear the inmate’s case for possible release on 

parole.” Id. (emphasis added). 

. . . 

The complaint alleges that the following information in the HB 86 Report was 

incorrect, that Defendants knew the information was false, and, yet, they refused to 
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remove or correct the information that was sent to state legislators. Defendants do 

not contest Plaintiff’s assertion that on April 14, 2010, The Ohio Adult Parole 

Authority (“OAPA”) sent false and biased information to the Ohio Attorney 

General in Plaintiff’s HB 86 Report. The Report falsely stated that Plaintiff was 

denied release in his 2007 parole board hearing because Plaintiff raped, sodomized 

and shot a female victim. Also, the Report falsely stated the Plaintiff premeditated 

killing three victims. In addition, the Report falsely stated the Plaintiff shot all 

victims in the head. The autopsy report and transcript of interrogation support 

Plaintiff’s contention that the three victims were not shot in the head executionstyle as suggested by the HB 86 Report. 

Defendants argue that Plaintiff’s claim should be dismissed for failure to state a 

claim. Additionally, Defendants state that Plaintiff has no due process right to a 

parole hearing and therefore no right to an accurate parole record. In their objection 

[to the Report & Recommendation which recommended denial of their Motion to 

Dismiss], Defendants recognize that Jergens v. Ohio Dep’t of Rehab. & Corr. Adult 

Parole Auth. found that an inmate could have a due process claim where parole is 

denied based on false information in the parole file, but Defendants argue that this 

is not such a case. See 492 F. App’x 567, 571 n.5 (6th Cir. 2012). Defendants urge 

this Court to find Jergens distinguishable from this case because in Jergens the 

false information was provided to the Parole Board, and in this case Defendant 

DRC provided the false information to the Ohio General Assembly. In addition, 

Defendants advocate that House Bill 86 only suggests that the Parole Board may

choose to re-hear inmate cases; from this, Defendants conclude that there is no 

obligation for the Parole Board to consider any inmate for parole and no attendant 

due process right for Plaintiff. In sum, Defendants advocate that House Bill 86 

does not mandate the Parole Board to consider inmates for parole release, and they 

find the legislation’s use of the word “may” does not create an obligation to rehear 

any of the inmates’ cases. 

Plaintiff argues that information was intentionally fabricated in order to mislead the 

Ohio General Assembly and justify denying him meaningful parole consideration. 

Plaintiff asserts that Defendants were required to review all cases of inmates falling 

within the dictates of HB 86 § 10 (65 years of age or older and had statutory first 

parole consideration hearing), and when false information is used in the review, it 

is arbitrary and unreasonable to refuse to correct that information when brought to 

their attention. 

. . . 

In order to prevail on a § 1983 claim for violation of procedural due process under 

the Fourteenth Amendment, a claimant must show that the state deprived him of a 

constitutionally protected interest in life, liberty, or property without due process 

of law. See Sinermon v. Burch, 494 U.S. 113 (1990). A two-step inquiry is required 

in the procedural due process analysis. The court must determine: (1) whether 
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there is a protected liberty or property interest; and, (2) if so, what procedures are 

required. Mathews v. Eldridge, 424 U.S. 219 (1976). 

Under the Fourteenth Amendment, the state may not interfere with a constitutional 

liberty or property interest without due process of law. Kentucky Dep’t of Corr. v. 

Thompson, 490 U.S. 454, 460 (1989). Since Ohio has a discretionary parole 

system, there is no attendant due process right in the grant of parole, and the state’s 

statutory and regulatory guidelines for parole, without more, do not change this 

calculus. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 

7–12 (1979) (There is no constitutional right to be paroled before the expiration of 

a valid sentence. If a state adopts a parole system, the existence of a liberty interest 

in parole release is entirely dependent on state law.); Ky. Dep’t of Corr. v. 

Thompson, 490 U.S. 454, 464–65 (1989) (If a state statute vests complete discretion 

to the parole board to determine eligibility for parole, no liberty interest exists.); 

Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007); see also Jergens v. State Dep’t 

of Rehab. & Corr. Adult Parole Auth., 492 F. App’x 567, 570 (6th Cir. 2012) (Ohio 

has a discretionary parole system, so an Ohio inmate has no liberty interest in 

parole.)[] 

While it is indisputable that an inmate has no liberty interest in parole insofar as the 

state parole system is entirely discretionary, the Ohio Supreme Court has held that 

inmates do have a right to accurate parole records, requiring that parole decisions 

not be made in reliance on information that the Parole Board knows to be inaccurate 

or has reason to know is inaccurate. See State ex rel. Keith v. Ohio Adult Parole 

Auth., 141 Ohio St. 3d 375, 380 (2014) (The discretion given to the parole board 

“must yield to statutory or regulatory requirements. Therefore . . . in any parole 

determination involving indeterminate sentencing, the OAPA may not rely on 

information that it knows or has reason to know is inaccurate.”). Thus, in essence, 

the Ohio Supreme Court has determined that the Adult Parole Authority does not 

have complete discretion because it does not have discretion to rely upon falsified 

parole records, or refuse to investigate an inmate’s allegations of substantive errors 

in the parole record. Accordingly, this Court finds that knowing reliance on false 

information in a parolee’s file, which the Parole Authority has no discretion to do 

under state law, can constitute a due process violation. See id.; see also R.C. § 

2967.03. 

The Sixth Circuit case Jergens v. State of Dep’t of Rehab. & Corr. Adult Parole 

Auth. supports this holding. 492 F. App’x 567, 570 (6th Cir. 2012). In Jergens, 

the Sixth Circuit found that while the existence of state-mandated procedural 

requirements in a parole board’s review of a parolee’s file does not, in and of itself, 

create a protected liberty interest, “[n]either this decision nor any binding circuit 

precedent, however, forecloses the possibility that, in an appropriate case, a parole 

board’s reliance on unconstitutional factors—or even on false information in the 

parole file—could constitute a due-process violation”). Jergens, 492 F. App’x 567, 

571 at n.5 (emphasis added). Unlike the defendant in Jergens, who cited to 

nonspecific errors in his parole file, Kinney states specific allegations of fact—
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verifiable errors brought to the attention of the Parole Board which were not 

corrected. See id. (“Jergens’s nonspecific allegations of falsity simply fail to make 

out such a claim.”). Therefore, Plaintiff’s case is precisely the “appropriate case” 

presupposed under Jergens where a parole board’s “false information in the parole 

file” could “constitute a due-process violation.” 

Jergens is not the first time the Sixth Circuit left the door open for procedural due 

process claims where there are inaccuracies in a parole record, or reason to believe 

inaccuracies exist. In Crouse v. Rothgerber, an inmate was denied parole based on 

an inaccurate parole file. 791 F.2d 932 (6th Cir. 1986). However, the inaccuracies 

were brought to the attention of the parole board, and they properly reevaluated the 

inmate’s case based on the corrected information. Id. The Court, therefore, 

assumed that any procedural rights that may have been denied were vindicated 

when the inmate received adequate reconsideration “of the Board’s error to satisfy 

due process.” Id. “In short, it appears that the Kentucky authorities adequately 

remedied any assumed deprivation of procedural due process,” by reevaluating his 

case. Id.

Defendants also argue that the Plaintiff’s case is not the type of case contemplated 

by the Sixth Circuit in Jergens because Plaintiff does not allege that the Parole 

Board relied on false information; instead, he alleges that the Defendant [DRC] 

provided false information to the Ohio General Assembly. This is a distinction 

without a difference. The information in the HB 86 Report provided to the General 

Assembly explains the reasons why Plaintiff was denied parole, and it contains 

objectively inaccurate information. For example, it is easily gleaned from looking 

at objective evidence in the record, such as the autopsy report, that the three victims 

were not shot in the head as stated in the HB 86 Report. 

Viewing the facts in the light most favorable to the Plaintiff, Defendants knew the 

information in Plaintiff’s HB 86 Report was incorrect, and/or had a mechanism to 

verify the alleged inaccuracies, and failed to investigate the inaccuracies and/or 

correct them. Under Keith v. Ohio, the Parole Authority did not have discretion to 

rely upon falsified parole records. Thus, viewing the facts in the light most 

favorable to the Plaintiff, he was deprived of his Fourteenth Amendment . . . Due 

Process right to a correct parole record as contemplated in footnote 5 of Jergens. 

(Id. at *1–5) (citations to the docket omitted). 

Here, Plaintiff alleges in his Amended Complaint that the Defendants “willfully and 

knowingly altered the facts, and changed the description of Plaintiff’s conviction . . . and 

fabricated ‘facts’ or the nature of the crime in order to send a false report to the Ohio General 

Assembly as was required pursuant to [§] 10, House Bill 86, effect 9-30-2011.” (ECF No. 7, at 
10 

pg. 2–3.) Specifically, Plaintiff alleges that he was never convicted of the crime described in the 

Ohio Parole Board Information Sheet. (ECF No. 7–1.) Plaintiff attaches his indictment and 

verdict information as support for his allegation. (Id.) Kinney is analogous here because 

plaintiff Kinney “state[d] specific allegations of fact—verifiable errors brought to the attention of 

the Parole Board which were not correct.” 2015 WL 1197812, at *4. Like Kinney, Plaintiff’s 

sets out specific errors and alleges that the Parole Board was made aware of the errors at 

Plaintiff’s second parole board hearing on March 17, 2017 and in a letter. (ECF No. 7, at pg. 3.) 

Taking these facts as true and in the light most favorable to the Plaintiff, Defendants knew the 

information in Plaintiff’s parole report was incorrect and had a mechanism to verify the alleged 

inaccuracies. Nevertheless, according to Plaintiff, Defendants failed to investigate the 

inaccuracies or correct them. Accordingly, the Undersigned recommends that Defendants’ 

Motion to Dismiss be denied as moot on habeas corpus grounds and that Defendants’ Motion to 

Dismiss be denied as to their assertion that Plaintiff has failed to state a claim under § 1983. 

B. Eleventh Amendment Immunity 

Defendants argue that Plaintiff’s official capacity claims against Defendants are barred 

by the Eleventh Amendment. (ECF No. 16, at pg. 9–10.) A claim asserted against a state actor 

in his or her official capacity is really a claim against the state. Rothhaupt v. Maiden, 144 F. 

App’x 465, 471 (6th Cir. 2005) (“Official-capacity suits generally represent only another way of 

pleading an action against an entity of which an officer is an agent. An official-capacity claim is 

not a claim against the official personally, for the real party in interest is the entity.”) (internal 

quotation marks and citations omitted). The Eleventh Amendment of the United States 

Constitution operates as a bar to federal-court jurisdiction when a private citizen sues a state or 

its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v. 
11 

Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000). 

“It is well established that § 1983 does not abrogate the Eleventh Amendment.” Harrison v. 

Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing Quern v. 

Jordan, 440 U.S. 332, 341 (1979)). Because Ohio has not waived its sovereign immunity in 

federal court, it is entitled to Eleventh Amendment immunity from suit for monetary damages. 

Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). 

Accordingly, to the extent that Plaintiff seeks to assert claims for compensatory damages 

against Defendants in their official capacities, these claims necessarily fail as barred by the 

Eleventh Amendment. However, the Eleventh Amendment does not bar a plaintiff’s claims 

against defendants in their official capacity for injunctive relief or in their individual capacities. 

Prim v. Jackson, No. 2:14-cv-1219, No. 2:14-cv-2159, 2015 WL 3544668, at *8 (S.D. Ohio June 

4, 2015) (citing Lawson v. Shelby Cnty., TN, 211 F.3d 331, 335 (6th Cir. 2002)). The 

Undersigned, therefore, recommends that Defendants’ Motion to Dismiss be granted with respect 

to any compensatory damages sought by Plaintiff against Defendants in their official capacities. 

C. Respondeat Superior 

Defendants argue that Plaintiff’s claims must be dismissed because they fall under the 

doctrine of respondeat superior. (ECF No. 16, at pg. 10–12.) In order to plead a cause of action 

under § 1983, a plaintiff must plead two elements: “(1) deprivation of a right secured by the 

Constitution or laws of the United States (2) caused by a person acting under color of state law.” 

Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing 

McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006)). To sufficiently plead the 

second element, a plaintiff must allege “personal involvement.” Grinter v. Knight, 532 F.3d 567, 

575 (6th Cir. 2008) (citation omitted). Plaintiff must allege personal involvement because “§ 
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1983 liability cannot be imposed under a theory of respondeat superior.” Id. (citation omitted). 

Thus, to hold a supervisor liable under § 1983, a plaintiff “must show that the official at least 

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct . . . .” 

Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). 

Defendants argue that Plaintiff’s allegations rely solely on Defendants supervisory 

positions. (ECF No. 16, at pg. 11.) “[S]upervisory personnel are not liable under the doctrine of 

respondeat superior; rather, [a] plaintiff must allege that a supervisor condoned, encouraged, or 

knowingly acquiesced in the alleged misconduct.” White v. County of Wayne, 20 F. App’x 450, 

451 (6th Cir. 2001) (citing Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir. 1995) 

(italics added). Plaintiff makes the following allegations in his Amended Complaint regarding 

Defendant Hudson (previously Defendant Mohr) and Defendant Thalheimer (previously 

Defendant Imbrogno): 

Plaintiff Al’Shahid alleges that the parole board decision was made in reliance of 

false information, which was the responsibility of the Chairperson to investigate 

and correct. The Defendant was informed of this incorrect and falsified information 

at [Plaintiff’s] second parole board hearing [on] March 17, 2017, and in a letter. . . 

. (ECF No. 7, at pg. 3.) 

Plaintiff Al’Shahid alleges, that the Defendants in this case not only fabricated the 

events of the nature of the offense, but switched the “Not Guilty” verdict to the 

Guilty verdict of aggravated Burglary and robbery which Plaintiff Al’Shahid was 

convicted. This is why it is alleged that the Defendants knowingly and intentionally 

caused the injury in denying Plaintiff Al’Shahid, a meaningful parole board hearing 

and release. (ECF No. 7, at pg. 4.) 

(See generally ECF No. 7.) When indulging all reasonable inferences in favor of Plaintiff and 

taking these well-pleaded facts as true, Plaintiff’s Amended Complaint establishes that 

Defendants at least implicitly authorized, approved, or knowingly acquiesced in providing the 

incorrect/falsified information to the Ohio General Assembly. See Love v. Franklin Cnty., 

Kentucky, No. 3:18-cv-00023, 2019 WL 1387692, at *6 (E.D. Ky. March 27, 2019) (establishing 
13 

that because defendant saw prisoner was in labor and chose not to intervene, the plaintiff had 

established defendant “at least implicitly authorized, approved, or knowingly acquiesced in the 

unconstitutional conduct of the offending officers.”). Specifically, Plaintiff alleges that 

“Defendant”1 was informed of the allegedly incorrect/falsified information on two occasions, and 

that both Defendants “fabricated the events of the nature of the offense” and “switched the ‘Not 

Guilty’ verdict to the Guilty verdict[.]” Accordingly, under the limited circumstances of the 

particular case, the Undersigned recommends that Defendants’ Motion to Dismiss be denied on 

respondeat superior grounds. 

D. Standing

Defendants argue that Plaintiff fails to establish standing because he has not 

demonstrated how any of the Defendants caused the alleged harm. (ECF No. 7, at pg. 12–13.) 

To satisfy Article II’s standing requirements, “a plaintiff must show (1) it has suffered an ‘injury 

in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 

hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it 

is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 

decision. Foster-Bey v. Rubitschun, No. 05-71318, 2005 WL 2010181, at *4 (E.D. Mich. Aug. 

18, 2005) (citing Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 180–81 (2000)). 

Defendants argue that because Plaintiff has not pled how each Defendant is personally 

responsible for the alleged harm, his Complaint must be dismissed for a lack of standing. The 

 1

 It is not clear from Plaintiff’s Amended Complaint whether he is attempting to refer to both 

Defendants, or whether he is specifically referring to one Defendant. The Court construes this 

language to implicate Defendant Thalheimer because the previous sentence discusses the 

responsibility of the “Chairperson,” who is Defendant Thalheimer. (See ECF No. 7, at pg. 3.) 

Because the Court must construe pro se Plaintiff’s pleading liberally, the Court will not make a 

determination as to whether Plaintiff is referring to one or both Defendants in this instance. 
14 

Parole Board, however, retains complete discretion whether to grant or deny parole. Defendants 

argument “does not take into account that a dilution of procedural safeguards, in and of itself, is 

an injury.” Id. Furthermore, “[s]tanding is a threshold determination.” Id. Therefore, “[u]nlike 

proving the merits of the case . . . a plaintiff cannot be required to provide evidence of his injury 

at this initial stage; it is sufficient for him to state his injury so that the court may determine 

whether, assuming those facts do exist, it is cognizable.” Id. Here, based on the allegations in 

Plaintiff’s Complaint, Defendants caused Plaintiff harm which is capable of being redressed by 

the Court. Accordingly, the Undersigned recommends denying the Motion to Dismiss on the 

grounds that Plaintiff lacks standing. 

CONCLUSION 

 For the reasons stated above, Plaintiff’s Motion to Strike (ECF No. 23) is DENIED. 

Additionally, the Undersigned RECOMMENDS that Defendants’ Motion to Dismiss (ECF No. 

16) be GRANTED IN PART and DENIED IN PART. Specifically, the Undersigned 

RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED with respect to any 

compensatory claims Plaintiff seeks against Defendants in their official capacities. The 

Undersigned RECOMMENDS that Defendants’ Motion to Dismiss be DENIED with respect to 

habeas corpus, failure to state a claim under § 1983, and standing. 

PROCEDURE ON OBJECTIONS 

If any party seeks review by the District Judge of this Report and Recommendation, that 

party 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). 
15 

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

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

The parties are 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 

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. 

Date: June 21, 2019 /s/ Elizabeth A. Preston Deavers_________ 

 ELIZABETH A. PRESTON DEAVERS 

CHIEF UNITED STATES MAGISTRATE JUDGE