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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH MYERS, No. 08-15203

Plaintiff, District Judge Gerald E. Rosen

v. Magistrate Judge R. Steven Whalen

MICHIGAN DEPT. OF CORRECTIONS

PAROLE BOARD,

Defendant.

 /

REPORT AND RECOMMENDATION

On December 19, 2008, Plaintiff Kenneth Myers, a prison inmate in the custody of

the Michigan Department of Corrections (“MDOC”), filed a pro se civil rights complaint

under 42 U.S.C. § 1983. Before the Court at this time is Defendant’s Motion to Dismiss

and/or for Summary Judgment [Docket #9], which has been referred for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below,

I recommend that the Defendant’s motion be GRANTED, and that the complaint be

DISMISSED WITH PREJUDICE.

I. FACTS

Plaintiff pled nolo contendere to one count of 2nd degree and one count of 3rd

degree criminal sexual conduct (“CSC”), in the Circuit Court for Missaukee County,

Michigan. The victims were his biological daughter and his step-daughter, both minors. 

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 The historical documents relating to Plaintiff’s conviction are contained in

Defendant’s Exhibit 1 (Certified Record of Kenneth Myers), attached to Defendant’s

motion [Docket #9].

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In exchange for his plea to these offenses, the prosecutor agreed to dismiss a charge of 1st

degree CSC and 2nd degree CSC, and also agreed to a cap of 54 months on the minimum

sentence. Plaintiff was sentenced to concurrent terms of 54 to 180 months.1

The Michigan Parole Board denied parole on July 3, 2007, and continued any

further consideration for 24 months, finding that it “lack[ed] reasonable assurance that

[the Plaintiff] will not become a menace to society or to the public safety....” The Board

gave the following reasons for its actions:

“[Plaintiff] impresses as having no remorse and no insight into the level of

deviancy of his crime; presents as risk and is in programming currently to

address his extremely deviant behavior.” Defendant’s Exhibit 1, Certified

Record, p. 5.

In his complaint, Plaintiff claims that the Parole Board violated the terms of his

nolo contendere plea by denying parole based on his failure to show remorse, in effect

forcing him to make statements about the offenses as a pre-condition of release. Plaintiff

states, at p. 3 of his complaint:

“When I went up for parole the parole board decided to not release me

greatly in part to ‘lack of empathy” on the part of this plaintiff, a decision

arrived upon by making plaintiff discuss crime and how he felt. This

violated my rights under nolo contendre (sic) of not having to ever discuss

the crime, so the process and procedures of the parole board violated my

rights.”

In its motion, Defendant argues (1) Plaintiff’s claims are barred by Eleventh

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 Rule 8(a)(2) provides that a pleading must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.”

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Amendment immunity; (2) the claims are barred under the doctrine of Heck v. Humphrey,

512 U.S. 477, 487,114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); and (3) the Plaintiff has not

stated a claim under 42 U.S.C. § 1983.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the

pleading to state a claim upon which relief can be granted.” Rule 12(b) also provides that

if, on consideration of a motion under paragraph (6), “matters outside the pleadings are

presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56 (summary judgment).” In

assessing a Rule 12(b)(6) motion, the court accepts the plaintiff’s factual allegations as

true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v.

Hattaway, 270 F.3d 416, 419 (6th Cir. 2001). 

In two recent cases, the United States Supreme Court altered the standard for

determining whether a complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6). In

Bell Atlantic Corp. V. Twombley, 550 U.S 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),

the Court, construing the requirements of Fed.R.Civ.P. 8(a)(2),2

 held that although a

complaint need not contain detailed factual allegations, its “[f]actual allegations must be

enough to raise a right to relief above the speculative level...on the assumption that all the

allegations in the complaint are true.” Id., 127 S.Ct. at 1964-65 (internal citations and

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3 Twombley was an antitrust case. Iqbal was a prisoner civil rights case. In any

event, it is clear that the Iqbal standard is applicable to all 12(b)(6) motions.

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quotation marks omitted). Further, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Id. (Internal citations and quotation

marks omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland,

Ohio 502 F.3d 545, 548 (6th Cir. 2007). Stated differently, a complaint must “state a claim

to relief that is plausible on its face.” Twombley, at 1974.

In Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, L.Ed.2d (2009), the Court

explained and expanded on what it termed the “two-pronged approach” of Twombley.

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First, it must be determined whether a complaint contains factual allegations, as opposed

to legal conclusions. “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id., 129 S.Ct. At 1949, citing Twombley,

550 U.S. at 555. Second, the facts that are pled must show a “plausible” claim for relief,

which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But

where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not

‘shown[n]”–‘that the pleader is entitled to relief.’” 129 S.Ct. at

1950(Internal citations omitted).

Summary judgment under Rule 56 is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). To

prevail on a motion for summary judgment, the non-moving party must show sufficient

evidence to create a genuine issue of material fact. Klepper v. First American Bank, 916

F.2d 337, 341-42 (6th Cir. 1990). Drawing all reasonable inferences in favor of the nonmoving party, the Court must determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate

“against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of

proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). When 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 of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).

III. ANALYSIS

A. Eleventh Amendment

Generally, claims against defendants in their official capacities, i.e, in their

capacity as agents of the state under 42 U.S.C. §1983, are subject to dismissal because 

“[t]he United States Supreme Court has specifically held that a State is not a ‘person’

against whom a § 1983 claim for money damages might be asserted.” Price v. Caruso,

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451 F.Supp.2d 889, 902 (E.D.Mich.2006)(Friedman, J.); Will v. Michigan Dept. of State

Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Nonetheless, “immunity

does not apply if the lawsuit is filed against a state official for purely injunctive relief

enjoining the official from violating federal law.” Ernst v. Rising, 427 F.3d 351, 358 -359

(6th Cir. 2005); Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714

(1908). 

This Plaintiff specifically seeks injunctive relief, not money damages. Therefore,

his claims may not be dismissed under the Eleventh Amendment.

B. Heck v. Humphrey

In Heck, the Supreme Court held that to recover civil damages based on an

allegedly unconstitutional conviction, or for “harm caused by actions whose unlawfulness

would render a conviction or sentence invalid,” the plaintiff must show that the

conviction or sentence has been “reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. 

Where success in the civil suit “would implicitly question the validity of conviction or

duration of sentence, the litigant must first achieve favorable termination of his available

state, or federal habeas, opportunities to challenge the underlying conviction or sentence.” 

Muhammad v. Close, 540 U.S. 749, 750; 124 S.Ct. 1303, 1304 (2004).

In Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242, 161 L.Ed.2d 253 (2005), the

Supreme Court held that Heck does not necessarily mandate the dismissal of a challenge

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 However, to the extent that Plaintiff challenges his plea itself as being illusory,

see Plaintiff’s Reponse [Docket #11], that claim would be barred by Heck.

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to a parole board’s actions in every case. The Court noted that the plaintiffs’ successful

challenges to the parole procedures would not necessarily result in their release, but

rather would give them a new parole eligibility hearing, after which they might or might

not be granted parole. See Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005), where the

court found that pursuant to Dotson, a parole challenge fell “within the narrow class of

cases in which a prisoner can file a section 1983 action seeking equitable relief.”

Thus, to the extent that Plaintiff is challenging the Parole Board’s requirement that

he discuss the facts of his offenses, and asking that he be granted a new parole hearing

without that requirement, his claim is not barred by Heck, although, as discussed below, it

must be dismissed on other grounds.4

C. Failure to State a § 1983 Claim

1. The Effect of Plaintiff’s Nolo Plea

Plaintiff’s claim that the Parole Board’s questions to him regarding the offense

violate the terms of his nolo contendere plea, while creative, misapprehends both the

scope of his plea bargain and the nature of a nolo plea.

A nolo contendere plea “is an admission of all the essential elements of a charged

offense and, thus, is tantamount to an admission of guilt for the purposes of a criminal

case.” People v. Patmore, 264 Mich.App. 139, 149, 693 N.W.2d 385 (2004) (citing

People v. New, 427 Mich. 482, 495, n.10, 398 N.W.2d 358 (1986)). The benefit to a

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 The first degree CSC charge that was dismissed carries a penalty of up to life

imprisonment. M.C.L. § 750.520b(2)(a).

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defendant who enters such a plea is that unlike a guilty plea, it “cannot be used in

evidence against the defendant as an admission in a subsequent civil or criminal case.” 

Koniak v. Heritage Newspapers, Inc., 198 Mich.App. 577, 581 (1993).

Consistent with its underlying purpose, Plaintiff’s nolo plea has not been used as

an admission in any other case, including his parole hearing. Plaintiff has cited no

authority for the proposition that a nolo plea somehow precludes an administrative agency

such as a parole board–or for that matter, anyone–from ever asking about the offense. 

Plaintiff may choose to answer the questions or not, but whatever the consequences of his

choice, they do not implicate the benefits conferred by his nolo plea.

Furthermore, the Parole Board was not a party to the Plaintiff’s plea agreement. 

“Plea agreements are contractual in nature, and as such, courts are guided by general

principles of contract interpretation when construing plea agreements.” United States v.

Moncivais, 492 F.3d 652, 662 (6th Cir. 2007). Apart from the fact that the Plaintiff

received the benefit of his bargain–the dismissal of more serious charges5

 and a sentence

cap–the terms of the agreement, or of any contract, cannot generally be enforced against a

non-party. The functions of a parole board are “separate and distinct from the sentencing

duties of the...court.” United States v. Clark, 831 F.2d 730, 732 (9th Cir. 1986). See also

Tanceusz v. United States, 831 F.2d 297, *2 (Table)(6th Cir. 1987) (“details of parole

eligibility are merely collateral, not direct, consequences of a plea”).

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 The Michigan Parole Board has a statutory mandate to consider and assure the

safety of the community in any parole decision. M.C.L. § 791.233(1)(a) provides that

“[a] prisoner shall not be given liberty on parole until the board has reasonable assurance,

after consideration of all the facts and circumstances, including the prisoner’s mental and

social attitude, that the prisoner will not become a menace to society or to the public

safety.” (Emphasis added). That responsibility exists regardless of whether the inmate

was sentenced as the result of a guilty plea, a nolo plea, or a trial. It is illogical to posit

that the determination of whether a prisoner is a danger to the community can be made on

less information (i.e., lack of remorse or acceptance of responsibility) in the case of a

defendant who pleads nolo than in the case of one who pleads guilty. I note that the facts

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More significantly, Plaintiff’s argument that the Michigan Parole Board’s

procedures violate his constitutional rights does not state a viable claim under § 1983. 

Plaintiff simply has no constitutionally protected liberty interest in parole. Greenholtz v.

Inmates of Nebraska Penal & Corrections, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668

(1979). The Sixth Circuit has held that “procedural statutes and regulations governing

parole do not create federal procedural due process rights,” and that “[t]he Michigan

procedural limitations do not detract from the broad powers of the Michigan authorities to

deny parole.” Sweeton v. Brown, 27 F.3d 1162, 1164 -1165 (6th Cir. 1994). The Sweeton

court also found that as “long as the parole discretion is broad, as in Michigan, ‘the State

has not created a constitutionally protected liberty interest’ by enacting procedural rules.”

Id. “In Michigan, the decision to release a prisoner on parole is a discretionary decision

of the parole board.” Juarez v. Renicom 149 F.Supp.2d 319, 322 (E.D.Mich. 2001)

(internal citations omitted). “The Michigan parole statute does not create a right to be

paroled.” Id.; Hurst v. Dep't of Corr. Parole Bd., 119 Mich.App. 25, 28-29, 325 N.W.2d

615, 616 (1982).6

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of this case, as set forth in the presentence and parole eligibility reports (Defendant’s

Exhibit 1), are particularly disturbing, and the Parole Board would be remiss in its

statutory obligations if it did not consider Plaintiff’s lack of remorse or insight into the

offense.

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Finally, Plaintiff’s argument, at p.6 of his response [Docket #11], that the Parole

Board’s consideration of his failure to acknowledge the offenses violates the Fifth

Amendment, is without merit. The Fifth Amendment bars the prosecution from

compelling a defendant’s testimony in a criminal trial or advancing an adverse inference

from his decision not to testify. Kosinski v. C.I.R., 541 F.3d 671, 678 (6th Cir. 2008). 

That proscription on adverse inferences does not apply in a non-criminal case. Id., citing

Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Nor

does it apply in the context of a parole hearing. Ohio Adult Parole Auth. v. Woodard, 523

U.S. 272, 286, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (a state clemency board may draw

adverse inferences from an inmate's failure to testify on his own behalf at a clemency

hearing). See also Hawkins v. Morse, 1999 WL 1023780, *2 (6th Cir. 1999)(unpublished)

(court applies Ohio Adult Parole Auth. to the Michigan parole system, stating, “[I]t

cannot be said that the alleged pressure to admit that he committed the crime for which he

is incarcerated in order to improve his chances for parole forces Hawkins to incriminate

himself in violation of the Fifth Amendment”).

IV. CONCLUSION

For these reasons, I recommend that Defendant’s motion to dismiss [Docket #9] be

GRANTED, and that the complaint be DISMISSED WITH PREJUDICE.

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Any objections to this Report and Recommendation must be filed within ten (10)

days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard

v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v.

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: July 27, 2009

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on July 27, 2009.

s/Susan Jefferson 

Case Manager

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