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Burch v. Murphy

United States District Court, S.D. West Virginia, Charleston

February 25, 2019

DENNIS BURCH and The Class of Similarly Situated Persons Being Those State of West Virginia Prisoners Serving a Sentence of Life with the Possibility of Parole for a Crime Committed Before July 10, 1997, Plaintiffs,
BENITA MURPHY, Chairperson, West Virginia Parole Board, MICHAEL TRUPO, CAROLE B. GREENE, and PEGGY POPE, Members, West Virginia Parole Board, all in their official capacities, Defendants.


          Dwane L. Tinsley, United States Magistrate Judge.

         This civil action is assigned to the Honorable Thomas E. Johnston, Chief United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court is the defendants' Motion to Dismiss Plaintiff's Complaint, or in the alternative, Motion to Strike Class Action Allegations (ECF No. 24).


         On June 16, 2017, the plaintiff, Dennis Burch (“Burch”), filed the instant Complaint under 42 U.S.C. § 1983, claiming that the retroactive application of the 1997 amendment of the West Virginia Code changing the statutory parole hearing set-off[1] period for prisoners serving life with mercy sentences from at least annual review to up to three years, violates the Ex Post Facto Clause of the United States Constitution, Article I, § 10. “One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission.” Garner v. Jones, 529 U.S. 244, 249-50 (2000) (citing Collins v. Youngblood, 497 U.S. 37, 42 (1990)). As further noted by the defendants herein, retroactive changes in laws affecting the parole of prisoners may “in some instances” violate the Ex Post Facto Clause. Id. at 250 (citing Lynce v. Mathis, 519 U.S. 433, 445-56 (1997)). (ECF No. 25 at 4). The controlling inquiry is whether the retroactive application of the law “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” California Dep't of Corrections v. Morales, 514 U.S. 499, 509 (1995).

         Before July 10, 1997, the West Virginia parole review statute, which was then codified in West Virginia Code § 62-12-13(a)(5), provided that “the [Parole] [B]oard shall at least once a year reconsider and review the case of every prisoner so eligible.” W.Va. Code § 62-12-13(a)(5) (1988) (Emphasis added). However, on July 10, 1997, that section was amended to state, in pertinent part: “the board may reconsider and review parole eligibility within three years following the denial of parole of a person serving a life sentence with the possibility of parole” (hereinafter “the three-year set-off”). W.Va. Code § 62-12-13(a)(5) (1997) (Emphasis added). This section was re-codified as W.Va. Code § 62-12-13(e) in 1999, and was again amended in 2015. Nonetheless, the applicable language concerning the three-year set-off remained the same. The amended statute has been applied to all prisoners serving life with mercy sentences.

         Burch contends that, as applied to him, [2] and all other prisoners sentenced to serve life with mercy sentences prior to July 10, 1997, the change in the set-off period created a “sufficient risk” of increased punishment. As his requested relief, Burch seeks a declaratory judgment that the retroactive application of the three-year set-off provision to the class of life with mercy inmates who committed their crimes before July 10, 1997 violates the federal Ex Post Facto Clause. He further seeks an injunction requiring the Parole Board to hold annual parole hearings for such inmates and to grant any other relief the court deems appropriate. (ECF No. 2 at 9).

         Burch also filed a motion for class certification, requesting that the court certify this as a class action under Rule 23(b)(2) on behalf of a class of similarly situated persons, that being those West Virginia state prisoners serving a life with mercy sentence for a crime committed before July 10, 1997. (ECF No. 5). Burch filed a companion Motion for Appointment of Counsel (ECF No. 4), in which he asserts that this matter presents exceptional circumstances warranting the court to appoint counsel to represent him and the class.

         On February 26, 2018, the undersigned submitted a prior Proposed Findings and Recommendation (ECF No. 11) (“First PF&R”), recommending dismissal of Burch's Complaint for failure to state a claim upon which relief can be granted and denial of the companion motions for class certification and appointment of counsel. The First PF&R proposed a finding that, under the Supreme Court's decisions in California Dep't of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000), and the decision of the West Virginia Supreme Court of Appeals (“the WVSCA”) in State ex rel. Carper v. W.Va. Parole Bd., 509 S.E.2d 864 ( W.Va. 1998), so long as the Parole Board makes individual determinations when deciding on the frequency of future parole hearings after an initial denial of parole, retroactive application of the amended statute was not an ex post facto violation.

         Burch filed objections to the First PF&R (ECF No. 13). On March 28, 2018, the presiding District Judge sustained Burch's objection based on a new allegation not contained in the Complaint that “the safeguards mandated by Carper have never been met by the Board.” (ECF No. 7 at 7; ECF No. 16 at 4-5) (emphasis in original). The Court's Memorandum Opinion and Order stated:

In light of Plaintiff's argument that the retrospective application of the amended statute to him and similarly situated inmates violates the Ex Post Facto Clause because due process requirements set forth by the WVSCA in Carper have not been followed by the Board of Parole, the Court finds that this supplemental allegation from the objection warrants a responsive pleading from Defendants. Consequently, the Complaint should not be dismissed at this stage when the record is wholly undeveloped as to that argument, and the Court declines to adopt the PF&R on that basis. Because this finding effectively moots the other portions of the PF&R, the Court finds it unnecessary to analyze the merits of Plaintiff's other objections and they will be overruled as moot.

(ECF No. 16 at 4-5). Thereafter, the undersigned granted Burch's Application to Proceed Without Prepayment of Fees and Costs and ordered service of process on the defendants, along with a copy of the presiding District Judge's Memorandum Opinion and Order.

         On June 19, 2018, the defendants filed the instant Motion to Dismiss Plaintiff's Complaint or, in the alternative, to Strike Class Action Allegations (ECF No. 24) and a Memorandum of Law in support thereof (ECF No. 25). On July 30, 2018, as ordered by the court, Burch filed a response to the defendants' motion (ECF No. 39), and on August 13, 2018, the defendants filed a reply (ECF No. 40). This matter is ripe for adjudication.


         In Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true, and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” While the complaint need not assert “detailed factual allegations, ” it must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 555.

         The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556 U.S. 662 (2009), a civil rights case. The Court wrote:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted). Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. * * *
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

556 U.S. at 678-79. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct.” Id. at 678.

         Attached to the Complaint herein are various documents relating to Birch's denial of parole and his attempts to receive reconsideration thereof. While, generally, matters outside of the pleadings may not be considered on a motion to dismiss, a court may consider the factual allegations in the Complaint and any exhibits attached thereto that are authentic and integral to the Complaint. See Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006); see also Fed. R. Civ. P. 10(c).


         A. The Complaint fails to state a colorable constitutional claim.

         The defendants' motion to dismiss asserts that the Complaint should be dismissed for failure to state a claim upon which relief can be granted. Specifically, the defendants contend that Burch's ex post facto claim is foreclosed by the Supreme Court's decisions in Morales and Garner because Burch cannot demonstrate that the amended statute at issue presents a “‘sufficient risk of increasing the measure of punishment attached to the covered crimes.'” Garner, 529 U.S. at 250 (quoting Morales, 514 U.S. at 509).

         In Morales, the Supreme Court reviewed a California statute that changed the frequency of parole hearings for prisoners convicted of more than one homicide from every year to up to every three years. The Court found that the amendment did not modify the statutory punishment imposed for any particular offense, nor did it alter the standards for determining an inmate's initial parole eligibility date or his suitability for parole. The Court further found that the statute vested the parole board with discretion to determine, on a case-by-case basis, how often to set reconsideration hearings within the new three-year limit, and to consider requests for earlier reconsideration based upon a change of circumstances. Thus, the Court found that the decrease in the frequency of parole suitability proceedings “create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” Id. at 509.

         In Garner, the Supreme Court applied this same rationale in finding that the retroactive application of a rule changing the frequency of parole reconsideration hearings from every three years to up to eight years did not, on its face, violate ex post facto principles. Again, the Court focused on the discretion of the parole board to set reconsideration dates according to the likelihood that review would result in meaningful consideration of the inmate's suitability for release and, further, that the rule allowed for the flexibility of shortening reconsideration time based upon a change in circumstances. The defendants contend that “[i]t is clear from Garner that a parole board's discretion is paramount.” (ECF No. 25 at 7). Their Memorandum of Law further states:

The Court remarked that the “States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release[, ]” and further that the “Ex Post Facto Clause should not be employed for ‘micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.” [Garner, 529 U.S. at 252] (quoting Morales, 514 U.S. at 508). Within its discretion, a parole board “may set reconsideration dates according to the likelihood that a review will result in meaningful considerations as to whether an inmate is suitable for release.” Id. at 254. Such discretion enables a parole board to put its resources to better use by concentrating its efforts on those prisoners identified as having a good possibility of early release. Id. And because of the “obligation[] to change and adapt based on experience, “ that discretion “is subject to changes in the manner in which it is informed and then exercised” (i.e., legislative amendments). Id. at 253.
Here, Plaintiff makes little more than a bare assertion that W.Va. Code § 62-12-13 violates the Ex Post Facto Clause. Clearly, under Garner and Morales, this is not enough. Plaintiff must plead facts that show that the amendments to West Virginia Code § 62-12-13 will create a significant risk that his punishment will be prolonged - that is, that the delay in parole consideration will actually delay his release. But Plaintiff has not made, and cannot make, this showing.

(Id. at 7). The defendants further contend that the amended West Virginia law mirrors the statutes at issue in Morales and Garner in respect to the discretion afforded to the Parole Board and the ...

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