                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0616n.06

                                            No. 10-4152                                  FILED
                                                                                      Jul 01, 2013
                            UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

ROBERT J. ALLEN, et al.,                       )
                                               )
          Plaintiff,                           )
                                               )
DONALD MARTIN,                                 )
                                               )           ON APPEAL FROM THE
          Plaintiff-Appellant,                 )           UNITED STATES DISTRICT
                                               )           COURT FOR THE NORTHERN
v.                                             )           DISTRICT OF OHIO
                                               )
TERRY J. COLLINS, et al.,                      )
                                               )
          Defendant-Appellee.                  )



                                               /

Before:           KEITH, MARTIN, and ROGERS, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Twenty-three parole-eligible prisoners in the Ohio

Department of Rehabilitation’s custody initiated pro se this putative class action in district court

pursuant to 42 United States Code section 1983, alleging that the Ohio Parole Board’s retroactive

application of its parole guidelines, policies, and procedures violated their rights under the Ex Post

Facto and Due Process Clauses of the United States Constitution. In their amended complaint, the

prisoners sought declaratory and injunctive relief from: the Parole Board’s implementation of the

2007 Guidelines Manual; the Parole Board’s implementation of portions of the Victims’ Rights

Statute; other Parole Board policies and procedures; and the cumulative changes in parole standards

and procedures.
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 2

        In the midst of the litigation, the Parole Board rescinded the 2007 Guidelines Manual, and

the district court subsequently held that the rescission mooted the prisoners’ claim challenging it.

The district court then granted the Parole Board’s motion for summary judgment on the prisoners’

claims challenging the Parole Board’s implementation of the Victims’ Rights Statute and other

Parole Board policies and procedures. The district court held that the prisoners’ claim regarding the

cumulative changes in parole standards and procedures failed as a matter of law given the reasoning

of Foster v. Booker, 595 F.3d 353 (6th Cir. 2010). The district court then dismissed as “moot” the

prisoners’ pending motions—including those for an Order Reopening Discovery pursuant to Federal

Rule of Civil Procedure 56(f) (now Rule 56(d)) and for class certification. Of the plaintiffs named

in the amended complaint, only prisoner Donald Martin appealed the district court’s judgment. We

AFFIRM the district court’s judgment.

        Martin and the original plaintiffs in this case are “old-law” prisoners, having received

indeterminate sentences before 1996. On July 1, 1996, the Ohio Legislature enacted a new

sentencing scheme, SB2, which prospectively eliminated indeterminate sentencing and parole. The

Ohio Legislature did not apply SB2 retroactively to those prisoners who had been sentenced prior

to its enactment. So, those prisoners, such as Martin, who were issued indeterminate sentences

before July 1, 1996, remain subject to the Parole Board, which has denied parole to Martin and the

proposed class members. On appeal, Martin argues: 1) the rescission of the 2007 Guidelines did not

moot his challenge to them; 2) the Victim’s Rights Statute violated his rights under the Ex Post Facto

Clause; 3) the cumulative changes to policies and procedures violated his rights under the Ex Post

Facto Clause; and 4) the district court abused its discretion in dismissing the prisoner’s motion for
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 3

an order reopening discovery pursuant to Federal Rule of Civil Procedure 56(f). We address each

argument in turn.

        First, we address Martin’s argument that the district court should not have determined that

his challenge against the 2007 Guidelines became moot when the Parole Board rescinded them. We

review de novo a district court’s application of the mootness doctrine to a claim or case. Cleveland

Branch, NAACP v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001) (citing Craft v. United States,

233 F.3d 358, 373 (6th Cir. 2000)).

        The district court did not err in applying the mootness doctrine to Martin’s claim for

declaratory and injunctive relief from the 2007 Guidelines. When considering whether a claim for

declaratory relief is moot, “‘the question is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy . . . of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.’” Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776,

781 (6th Cir. 2007) (quoting Coal. for Gov’t Procurement v. Fed. Prison Indus., 365 F.3d 435, 459

(6th Cir. 2004)). In Campbell, workers filed suit in district court seeking a declaratory judgment that

a tax-abatement agreement that their employer had entered into violated their constitutional rights.

Id. The district court dismissed the workers’ claim for declaratory relief as moot, because the

agreement had expired before the court issued its final order. Id. We affirmed, reasoning that

because the agreement was no longer in effect, no party had a continuing obligation under it;

“[g]ranting declaratory relief would therefore have no effect on the [w]orkers’ current legal

interests.” Id.
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 4

        Martin is in a position similar to that of the workers in Campbell: he has asked the district

court to declare as unconstitutional a document—the 2007 Guidelines—that no longer exists. A

controversy—let alone a substantial one—cannot exist because the Board rescinded the 2007

Guidelines, effective April 1, 2010, stating that “the Board will no longer use the Guidelines Manual

for any purpose, including the release decision process.” As a result, the 2007 Guidelines, like the

agreement in Campbell, cannot affect Martin’s legal interests. The district court correctly found that

Martin’s claim for declaratory relief as to the 2007 Guidelines was moot.

        Similarly, the district court reached the correct conclusion in holding that Martin’s claim for

injunctive relief from the Parole Board’s use of the 2007 Guidelines had become moot. In applying

the mootness doctrine to a claim seeking injunctive relief, we consider the claim to be moot when

either “‘the issues presented are no longer ‘live’” or the “‘parties lack a legally cognizable interest

[‘personal stake’] in the outcome.’” Banas v. Dempsey, 742 F.2d 277, 281 (6th Cir. 1984). (quoting

United States Parole Commission v. Geraghty, 445 U.S. 388, 396 (1980) (parallel citations

omitted)). In Banas, welfare recipients sought an injunction to prevent the state from enforcing a

policy which they alleged violated their constitutional rights. Id. at 281. During the course of the

litigation, Congress amended a statute which prevented the state from enforcing the policy. Id.

Because the state no longer implemented the policy, there was no longer any state action for the court

to enjoin. Id.

        Here, too, the district court could not enjoin the Parole Board from using the 2007 Guidelines

because they no longer exist. Martin simply cannot have a personal stake in rescinded policies.
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 5

        Martin asserts that two exceptions to the mootness doctrine apply: the exception for an action

capable of repetition, yet evading review; and the voluntary cessation doctrine. The district court

correctly found that the first exception did not apply. We have explained that the “‘capable of

repetition, yet evading review’ exception to the mootness doctrine applies in those exceptional cases

where a plaintiff makes a reasonable showing that he or she will again be subjected to the sanction.”

Thomas Sysco Food Servs. v. Martin, 983 F.2d 60, 62 (6th Cir. 1993) (quoting ConnAire, Inc. v.

Sec’y, U.S. Dep’t of Transp., 887 F.2d 723, 725–26 (6th Cir. 1989)). This exception is limited to

a situation that meets two conditions: “(1) the challenged action is too short to be fully litigated prior

to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining

party would be subject to the same action again.” Id. (citing Weinstein v. Bradford, 423 U.S. 147,

149 (1975) (parallel citations omitted); Ahmed v. Univ. of Toledo, 822 F.2d 26, 28 (6th Cir. 1987)).

And the plaintiff bears the burden of proffering facts to meet both conditions. Lawrence v.

Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (citing Deja Vu of Nashville v. Metro. Gov’t. of

Nashville & Davidson Cnty., 274 F.3d 377, 390–91 (6th Cir. 2001) (rest of string citation omitted)).

        This exception cannot apply in Martin’s case because Martin has not satisfied the second

condition: he has not produced evidence showing a reasonable expectation that he will be subjected

to the 2007 Guidelines—or any Parole Board guidelines—in the future. The record shows that

Martin cannot have a reasonable expectation that the Board would subject him to the 2007

Guidelines or policies they contain. The Board informed Martin and the district court that it will no

longer use such guidelines; rather, it “will continue to give every inmate meaningful consideration
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 6

for parole, and exercise its discretionary releasing authority by utilizing the Ohio statutory and

Administrative Code provisions, which have essentially remained unchanged since 1975.”

          For the first time on appeal, Martin argues that the voluntary-cessation doctrine applies to

prevent his claim from being moot. We will not consider Martin’s argument that the voluntary-

cessation doctrine applies because he did not argue this point of law in the district court, and our

function as an appellate court is “‘to review the case presented to the district court, rather than a

better case fashioned after a[n] . . . unfavorable order.’” Armstrong v. City of Melvindale, 432 F.3d

695, 700 (6th Cir. 2006) (quoting Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir.

2005)).

          Yet the prisoners did argue in the district court, and Martin now argues on appeal, that the

Parole Board’s rescission of the 2007 Guidelines did not moot their claims because the 2007

Guidelines will have a continuing probable effect: namely, that each successive major revision to

the parole guidelines makes it more difficult to get parole, which increases the measure of

punishment for their offenses. The prisoners analogize their case to Reno v. Bossier Parish School

Board 528 U.S. 320 (2000). In Reno, a school board argued that challenges to its redistricting plan

were moot because the school board itself had rescinded the plan and promised never to use it again

for any purpose. Id. at 327–28. The Court disagreed that the challenges were moot because it

determined that the plan would have a “probable continuing effect” given that it would “serve as the

baseline” against which the Board’s next voting plan would be evaluated. Id.

          Here, the prisoners have offered no evidence to show that the 2007 Guidelines would serve

as the baseline for future parole guidelines. The Parole Board has explained that it will no longer
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 7

consult the 2007 Guidelines in any way and instead will rely upon the relevant statutes and

regulations to make parole determinations. We agree with the district court that the prisoners have

offered no evidence that the 2007 Guidelines will have a probable continuing effect upon the

prisoners and that their attempt to analogize their situation to Reno fails.

        We now address Martin’s argument that the district court erred in granting summary

judgment on his claim that the Parole Board’s implementation of the Victim’s Rights Statute

violates the U.S. Constitution’s Ex Post Facto Clause. We review de novo a district court’s grant

of summary judgment. EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089, 1093 (6th Cir. 1998).

Summary judgment is proper if there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(c)). The party moving for

summary judgment must show an absence of evidence to support the nonmoving party’s case. Id.

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (parallel citations omitted)). We must

determine either whether the evidence—when viewed in the light most favorable to the nonmoving

party—presents a sufficient disagreement to require submission to the fact-finder, or whether the

evidence is so one-sided that the moving party must prevail as a matter of law. Id. (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). If the plaintiffs intended for an action to

proceed on a class basis, and if their class-certification motion was still pending when the district

court granted the state’s motion for summary judgment, then the named plaintiffs “must show that

a genuine issue of material fact exists as to each named plaintiff.” Michael v. Ghee, 498 F.3d 372,

374 n.1 (6th Cir. 2007) (emphasis added).
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 8

        Here, although the plaintiffs intended their action to proceed on a class basis, the district

court, as in Michael, granted the Parole Board’s motion for summary judgment before certifying the

class. Only one named plaintiff remains: Martin. Thus, Martin must show that a genuine issue of

material fact exists with regard to the claim that the Victim’s Rights Statute has violated his rights.

        But this Martin cannot do because the statute applies only to those convicted of murder or

aggravated murder, and he was convicted of voluntary manslaughter and theft. The Victim’s Rights

Statute, Ohio Revised Code section 2967.12(B), requires the Parole Board to notify a victim’s

representative of a prisoner’s pending release if the victim’s representative has requested such notice

pursuant to Ohio Revised Code section 2930.16. Ohio Rev. Code Ann. § 2967.12(B) (West 2012).

Section 2967.12(B) further provides that “if the prisoner being considered for parole was convicted

of or pleaded guilty to violating section 2903.1 [aggravated murder] or 2903.02 [murder] of the

Revised Code,” then the victim’s representative or immediate family members may request a full

board hearing relating to the potential parole of the prisoner and will “have the right to give

testimony at a full board hearing of the parole board . . .” Ohio Rev. Code Ann. § 2967.12(B) (West

2012). If the victim’s representative or immediate family requests such a full board hearing, then

the request must be granted. Ohio Rev. Code Ann. § 5149.101(A)(2) (West 2012). The Parole

Board must consider the testimony. Ohio Rev. Code Ann. § 2967.03. The prisoner being considered

for parole has no right to be present at the hearing—but may be represented by counsel or some other

person the prisoner designates. Ohio Rev. Code Ann. § 5149.101(C) (West 2012). As noted above,

Martin was convicted of voluntary manslaughter and theft—not aggravated murder or murder.
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 9

Therefore, none of these provisions of the Victims’ Rights Statute could have violated his rights, and

the district court correctly granted summary judgment to the Parole Board on this claim.

        We now address Martin’s claim that the cumulative effects of changes in the Parole Board’s

policies and procedures over time violated his rights under the Ex Post Facto Clause. The prisoners

asserted, in their amended complaint, that the cumulative effects of parole changes over time had

“increased the length of incarceration before parole for members of the class.” The district court

held that this claim “fail[ed] as a matter of law[,]” and it granted summary judgment to the Parole

Board as to this claim, based on our reasoning in Foster v. Booker, 595 F.3d 353 (6th Cir. 2010).

        We may affirm the district court’s judgment “if correct for any reason, including a reason not

considered” by the district court. Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d

214, 216 (6th Cir. 1985) (per curiam) (citing J.E. Riley Inv. Co. v. Comm’r, 311 U.S. 55, 59 (1940)

(parallel citations omitted)). Stated differently, “[w]here the decision below is correct it must be

affirmed by the appellate court though the lower tribunal gave a wrong reason for its action.” J.E.

Riley Inv. Co., 311 U.S. at 59 (citing Helvering v. Gowran, 302 U.S. 238, 245 (1937) (parallel

citations omitted).

        The district court did not err in granting summary judgment to the Parole Board on this claim.

The Ex Post Facto Clause of the United States Constitution prohibits laws that “‘retroactively alter

the definition of crimes or increase the punishment for criminal acts.’” Foster v. Booker, 595 F.3d

353, 361–62 (6th Cir. 2010) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995)

(parallel citations omitted)).    The relevant inquiry, for purposes of determining whether a

retroactively applied law violates the Ex Post Facto Clause, is whether the new parole guideline or
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 10

policy “present[s] a significant risk of increasing the plaintiff’s amount of time actually served.”

Michael v. Ghee, 498 F.3d 372, 383 (6th Cir. 2007) (citing Garner v. Jones, 529 U.S. 244, 255

(2000)). A prisoner seeking to prove that a law’s or a policy’s retroactive application creates a

sufficient risk of increasing the measure of punishment applied to him or her may satisfy his or her

burden in one of two ways.

        First, “plaintiffs can establish an ex post facto violation if they can show that the guidelines

[or laws], on their face, show a significant risk of increased incarceration.” Michael, 498 F.3d at 384

(citing Garner, 529 U.S. at 255).

        But Martin has not identified any changes in specific parole policies over time that have

affected him.

        Second, where the policy does not, by its own terms, show a significant risk of increased

incarceration, a plaintiff must demonstrate, by evidence drawn from the policy’s practical

implementation by the agency charged with exercising discretion, that its application will result in

a longer period of incarceration than under an earlier policy. Michael, 498 F.3d at 384 (citing

Garner, 529 U.S. at 255; Dyer v. Bowlen, 465 F.3d 288, 291 (6th Cir. 2006) (explanatory

parenthetical omitted)). Plaintiffs in our circuit “need not show an actual increase in punishment,

but rather a ‘sufficient risk’ of increased punishment.” Id. (citing Dyer, 465 F.3d at 280).

        Here, again, Martin cannot make out an Ex Post Facto claim because he has not identified

the purported changes in parole policies that have created these supposed cumulative effects.

        Lastly, we review Martin’s argument that the district court improperly denied the prisoners’

motion for discovery under Rule 56(f) (now Rule 56(d)), which provides that, after a motion for
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 11

summary judgment has been made, the nonmovant may request additional discovery before the

district court grants the summary judgment motion if the nonmovant shows by affidavit that, for

specified reasons, it cannot present facts essential to justify its opposition. Fed. R. Civ. P. 56(d).

The district court may then: (1) deny the summary judgment motion; (2) order a continuance to

enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3)

issue any other just order. Id.

        Here, the prisoners’ Rule 56(f) motion sought: (1) documents showing how the Parole Board

exercises its discretion in making parole decisions, including deposition transcripts, memoranda,

emails and correspondence between Parole Board members; (2) all documents contained in the

parole files of the seven representative plaintiffs in the amended complaint; (3) statistical data on

inmates granted parole between 1987 and 2009, including the date of offense of conviction, the

sentence imposed by the court, and the date of parole; and (4) depositions of “key” Parole Board

members and staff. The prisoners’ counsel averred in her affidavit in support of the Rule 56(f)

motion that the Parole Board allowed the prisoners’ counsel to have an informal interview with the

Parole Board Chairperson, Cynthia Mausser. The Parole Board would not allow the prisoners’

counsel to examine most of the documents contained in the prisoners’ parole files.

        We review the district court’s denial of a 56(f) motion for an abuse of discretion. CenTra,

Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (citing Vance ex rel. Hammons v. United States, 90

F.3d 1145, 1149 (6th Cir. 1996) (explanatory parenthetical omitted)). In considering whether a

district court has abused its discretion in denying a 56(f) motion we apply five factors: (1) when the

proponents of the 56(f) motion learned of the issue that is the subject of the discovery they seek; (2)
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 12

whether the desired discovery would have changed the district court’s ruling; (3) how long the

discovery period lasted; (4) whether the proponents of the 56(f) motion were dilatory in their

discovery efforts; and (5) whether the other party was responsive to discovery requests. Id. (citing

Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196–97 (6th Cir. 1995) (citations omitted), cert. denied,

517 U.S. 1157 (1996) (parallel citations omitted)). Typically, where a party has had no opportunity

for discovery, a district court’s denial of the opposing party’s Rule 56(f) motion and ruling on a

summary judgment motion is likely to be an abuse of discretion. CenTra, 538 F.3d at 420 (citing

Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (explanatory parenthetical omitted)).

        Here, the prisoners had insufficient time for discovery before the summary judgment motion

was granted. The record shows that the Parole Board was unresponsive to the prisoners’ discovery

requests. On October 14, 2009, the parties participated in a Fed. R. Civ. P. 26(f) conference, at

which they stipulated to discovery. The Parole Board proposed paper discovery, electronic

discovery, and depositions. The Parole Board also stated in the joint stipulation that the extent of

the discovery for the named plaintiffs might be substantial due to the requirements to prove an Ex

Post Facto violation. The parties agreed that the discovery cut-off date would be February 1, 2010.

In their report to the district court, the parties agreed to serve their Initial Disclosures by November

6, 2009, a deadline that the prisoners met. The Parole Board did not meet this deadline, moving the

district court on November 6, 2009 for an extension of time until November 13, 2009 to file their

Initial Disclosures. The Parole Board failed to meet this deadline, and the prisoners, on January 22,

2010, asked the district court to set a status conference pursuant to Local Rule 37.1 to resolve the

ongoing discovery dispute. The Parole Board moved for summary judgment on February 1, 2010,
No. 104152
Robert Allen, et al. v. Terry Collins, et al.
Page 13

without responding to the prisoners’ discovery requests. On February 3, 2010, the Parole Board

served Chairperson Mausser’s responses to the Requests for Production and the Interrogatories.

Then, on March 4, 2010, the prisoners filed their Rule 56(f) motion. Nevertheless, on August 4,

2010, the district court granted the Parole Board’s motion for summary judgment.

        The Parole Board’s indolent and cavalier approach to dealing with its prisoners in a court of

law is deeply unsettling. Were this Court directly hearing this case, we would be hard pressed to

grant summary judgment to the Parole Board without giving the prisoners the benefit of discovery

the way the district court did here.

        But that is not the task we are given on appellate review. We “have affirmed denial of Rule

56(f) motions when the parties were given insufficient time for discovery if ‘further discovery would

not have changed the legal and factual deficiencies.’” CenTra, Inc., 538 F.3d at 420 (quoting Maki

v. Laakko, 88 F.3d 361, 367 (6th Cir. 1996), cert. denied, 519 U.S. 1114 (1997) (parallel citations

omitted)). We must do so here, because discovery would not have changed the legal and factual

deficiencies we have already described in Martin’s claims. Thus, we are bound to conclude that the

district court did not abuse its discretion in granting summary judgment without permitting discovery

or ruling on the prisoners’ Rule 56(f) motion. For this, and the other reasons we have discussed, we

AFFIRM the district court’s judgment.
