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I note that in the event this Report and Recommendation is adopted, Plaintiff’s pending motion to effectuate

service by U.S. Marshal (Doc. 3) will be moot.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DALE STANFILL,

Plaintiff, CASE NO. 09-CV-12210

v. DISTRICT JUDGE LAWRENCE P. ZATKOFF

MAGISTRATE JUDGE CHARLES E. BINDER

MICHIGAN PAROLE BOARD,

BARBARA S. SAMPSON, Chairman,

JOHN SCHLINKER,

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

PURSUANT TO 28 U.S.C. §§ 1915A(b), 1915e(2)(B), & 42 U.S.C. § 1997e(c)(1)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that the case be sua sponte

DISMISSED for failure to state a claim upon which relief may be granted.1

II. REPORT

A. Introduction

Plaintiff Dale Stanfill is a state prisoner who is currently incarcerated at the G. Robert

Cotton Correctional Facility in Jackson, Michigan. On June 8, 2009, Plaintiff filed a pro se

Complaint for Declaratory and Injunctive Relief pursuant to 42 U.S.C. § 1983. On June16, 2009,

U.S. District Judge Lawrence P. Zatkoff referred all pretrial matters to the undersigned magistrate

judge. Plaintiff’s application to proceed without prepayment of fees pursuant to the in forma

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pauperis statute, 28 U.S.C. § 1915(a)(1), was granted on June 19, 2009. After screening the pro

se complaint pursuant to 28 U.S.C. §§ 1915A(b), 1915e(2)(B), and 42 U.S.C. § 1997e(c)(1), I

conclude that the case is ready for Report and Recommendation.

B. Governing Law

This case is subject to screening under several provisions of the United State Code.

Pursuant to 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to

sua sponte dismiss the case before service on defendants if it determines that the action is frivolous

or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief

against a defendant who is immune from such relief.

When the court screens a complaint where a plaintiff is proceeding without the assistance

of counsel, the court is required to liberally construe the complaint and hold it to a less stringent

standard than a similar pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92

S. Ct. 594, 30 L. Ed. 2d 652 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). Rule

8(a) sets forth the basic federal pleading requirement that a complaint “shall contain . . . a short and

plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a).

Rule 8 requires “that the complaint give the defendant fair notice of the claim and its supporting

facts.” E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001). Despite this

relatively low threshold, a complaint must nevertheless contain more than legal labels, conclusions,

and a recitation of the elements of a cause of action; it must also contain “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). 

A civil rights case under 42 U.S.C. § 1983 consists of two elements: (1) the defendant acted

under color of state law; and (2) the offending conduct deprived the plaintiff of rights secured by

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federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parratt v. Taylor, 451 U.S.

527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)). “If a plaintiff fails to make a showing on any

essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.3d 530, 532 (6th

Cir. 2001).

C. Background

In Michigan, a prisoner serving a parolable life sentence, as is Plaintiff, may be released on

parole “only after the prisoner has proceeded through the initial interview, avoided judicial veto,

and advanced through a public hearing to the ultimate decision of the Parole Board at which time

the Parole Board either grants or denies parole.” Gilmore v. Parole Board, 635 N.W.2d 345, 361

(Mich. Ct. App. 2001).

In this case, Plaintiff challenges one aspect of his “initial interview.” Plaintiff reports that

on July 7, 2007, Defendant John Schlinker, a member of the Michigan Parole Board, conducted

a “video conference” parole interview with Plaintiff. (Compl. at 4.) Plaintiff contends that,

because the word “interview” is defined in several dictionaries as “a meeting face to face,”

Michigan law requires the parole interview to be held in person and the use of video conferencing

technology violates state law and is thus a denial of his due process rights. (Id.)

The state statute at issue provides as follows:

At the conclusion of 10 calendar years of the prisoner’s sentence and thereafter as

determined by the parole board until the prisoner is paroled, discharged, or deceased,

and in accordance with the procedures described in subsection (9), 1 member of the

parole board shall interview the prisoner.

MICH. COMP. LAWS § 791.234(8)(a). The statute goes on to explain that

[a]n interview conducted under subsection (8)(a) is subject to both of the following

requirements:

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(a) The prisoner shall be given written notice, not less than 30 days

before the interview date, stating that the interview will be conducted.

(b) The prisoner may be represented at the interview by an individual

of his or her choice. The representative shall not be another prisoner.

A prisoner is not entitled to appointed counsel at public expense. The

prisoner or representative may present relevant evidence in favor of

holding a public hearing as allowed in subsection (8)(b).

MICH. COMP. LAWS § 791.234(9).

As relief, Plaintiff seeks a declaratory judgment finding that Defendants’ use of video

conferencing for parole interviews violates state law and the United States Constitution, an

injunction prohibiting Defendants from using video conference technology to conduct any future

parole interviews, and an order requiring Defendants to conduct an in-person parole interview with

Plaintiff. (Compl. at 5-6.) 

D. Discussion

To the extent Plaintiff claims that Defendants violated state law, I suggest that his claim is

not cognizable in this federal section 1983 action. Radvansky v. City of Olmsted Falls, 395 F.3d

291, 314 (6th Cir. 2005) (citing Benn v. Universal Health Sys., Inc., 371 F.3d 165, 174 (3d Cir.

2004) (“Section 1983 does not provide a cause of action for violations of state statutes.”)).

To the extent Plaintiff is claiming that the parole procedure utilized in his case violated his

due process rights under the federal constitution, however, I suggest initially that his claim is

properly brought in this Court under 42 U.S.C. § 1983. The Sixth Circuit has explained that 

where a prisoner does not claim immediate entitlement to parole or seek a shorter

sentence but instead lodges a challenge to the procedures used during the parole

process as generally improper or improper as applied in his case, and that challenge

will at best result in a new discretionary hearing the outcome of which cannot be

predicted, we hold such a challenge cognizable under section 1983.

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Dotson v. Wilkinson, 329 F.3d 463, 472 (6th Cir. 2003). Plaintiff’s challenge clearly falls within

these parameters.

The Due Process Clause provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without process of law.” U.S. Const., amend. XIV, § 1; accord amend. V.

“This Clause imposes procedural limitations on a State’s power to take away protected

entitlements.” District Attorney’s Office for Third Judicial Dist. v. Osborne, ___S. Ct.___, 2009

WL 1685601, at *10 (June 18, 2009).

To state a procedural due process claim under § 1983, a plaintiff must demonstrate that he

possessed a protected liberty or property interest and that he was deprived of that interest without

due process. Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). Of course, “[a] criminal

defendant proved guilty after a fair trial does not have the same liberty interests as a free man.”

Osborne, at *11. If a plaintiff cannot identify a protected liberty interest that was infringed by the

alleged lack of process, he cannot successfully claim that his due process rights were violated

because “process is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250, 103 S. Ct. 1741,

75 L. Ed. 2d 813 (1983). “A liberty interest can arise in one of two ways: (1) from the Due

Process Clause itself; or (2) from a state or federal statute.” Ho v. Greene, 204 F.3d 1045, 1058

(10th Cir. 2000). See generally Sandin v. Conner, 515 U.S. 472, 477-87, 115 S. Ct. 2293, 132 L.

Ed. 2d 418 (1995).

It was established long ago that there is no constitutionally-protected right of a convicted

person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates

of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668

(1979). Thus, Plaintiff has a protected liberty interest only if Michigan law creates such an

interest. In the parole context, whether a state law creates a protected liberty interest “turn[s] on

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Alternatively, even if Plaintiff had identified a federal due process liberty interest, I would nevertheless

suggest that Plaintiff has failed to state a claim because the Sixth Circuit has held that allowing a parole officer and

witnesses to participate via video conferencing technology at a parole revocation hearing (where due process

requirements are heightened as compared with parole release hearings, see Morrissey v. Brewer, 408 U.S. 471, 92

S. Ct. 2593, 33 L. Ed. 2d 484 (1972)) did not violate due process. Wilkins v. Timmerman-Cooper, 512 F.3d 768,

775-76 (6th Cir. 2008).

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the presence or absence of language creating ‘substantive predicates’ to guide discretion.”

Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 462, 109 S. Ct. 1904, 104 L. Ed. 2d

506 (1989). To create a liberty interest the regulation at issue must “contain ‘explicitly mandatory

language,’ i.e., specific directives to the decision maker that if the regulations’ substantive

predicates are present, a particular outcome must follow[.]” Id. at 463. Under Michigan law, “a

prisoner’s release on parole is discretionary with the parole board.” MICH. COMP. LAWS §

791.234(8); see also People v. Moore, 417 N.W.2d 508, 512 (Mich. Ct. App. 1987). Thus, it does

not “create an independent federal due process liberty interest or right in the prisoner.” Sweeton

v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994) (en banc). 

Therefore, I suggest that Plaintiff cannot and has not stated a due process claim under

section 1983, because the alleged violation of Michigan parole interview regulations does not give

rise to a due process violation.2

 Accordingly, I suggest that the case be sua sponte dismissed for

failure to state a claim upon which relief can be granted.

III. REVIEW

The parties to this action may object to and seek review of this Report and Recommendation

within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). 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. Sec’y of Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are

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advised that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs.,

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.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: June 22, 2009 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date,

served by first class mail on Dale C. Stanfill, #197382, at G. Robert Cotton Correctional Facility,

3500 N. Elm Rd., Jackson, MI, 49201-8887; and served on District Judge Zatkoff in the

traditional manner.

Date: June 22, 2009 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder

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