                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0749n.06

                                           No. 11-3835

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Jul 11, 2012
LONNIE LEE JERGENS,                                      )                   LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellant,                              )
                                                         )     ON APPEAL FROM THE
v.                                                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE SOUTHERN
STATE OF OHIO DEPARTMENT OF                              )     DISTRICT OF OHIO
REHABILITATION AND CORRECTIONS                           )
ADULT PAROLE AUTHORITY; ELLEN W.                         )
VENTERS; BOBBY BOGAN,                                    )             OPINION
                                                         )
       Defendants-Appellees.                             )




Before: MOORE, WHITE, and LUCERO,* Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Lonnie Jergens appeals

the district court’s dismissal of his 42 U.S.C. § 1983 claim. Jergens, who is an inmate in an Ohio

state prison, maintains that Defendants-Appellees the Ohio Adult Parole Authority (“OAPA”) and

two individual members of the Ohio Parole Board, Ellen Venters and Bobby Bogan, violated his

rights under the Fifth and Fourteenth Amendments to the U.S. Constitution by failing to provide him

a meaningful hearing before denying his parole. Because we agree that Jergens has failed to state

a claim for relief, we AFFIRM the district court’s judgment.

                                      I. BACKGROUND

       *
        The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of Appeals for
the Tenth Circuit, sitting by designation.
No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


        On February 7, 1992, Jergens was convicted of murder and sentenced to an indefinite period

of incarceration. According to the complaint, Jergens was scheduled for a parole-eligibility hearing

on April 2, 2010. Shortly before that date, on March 25, 2010, Jergens’s attorney met with OAPA-

board member Bogan to discuss the hearing and to clarify supposedly false information about

Jergens’s criminal record and history that had been used against Jergens in prior parole hearings.

Bogan allegedly told Jergens’s attorney “that he was not interested in this information or in the past”

and that he was concerned only with Jergens’s plans for the future. R. 1 (Compl. ¶ 16). Jergens

maintains that despite his attorney’s efforts to clarify the record, OAPA-board member Venters

subsequently used the false information at his hearing to deny his parole.1 Jergens also challenges

the validity of the hearing on the basis that he had previously filed suit against Venters, which

Jergens asserts made it a conflict of interest for her to act as the hearing officer at his hearing.

        Jergens filed a motion for reconsideration of the parole board’s decision, which was denied.

Following the denial, Jergens filed suit against the OAPA and individual board members Bogan and

Venters, alleging that the actions of these defendants violated his constitutional right to due process.

Jergens also claims that Bogan’s failure to accept the corrected facts presented by Jergens’s attorney

and Venter’s continued use of the allegedly false information amounted to a conspiracy to deprive




        1
        Jergens’s complaint never identifies the nature of the false information or the way in which
Venters improperly used it against him.

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


Jergens of his constitutional rights. In his request for relief, Jergens seeks monetary damages and

a meaningful parole hearing.2

       On April 15, 2011, the defendants filed a motion to dismiss for failure to state a claim. They

presented two grounds for dismissing the complaint: (1) the lack of due-process rights with respect

to parole under Ohio’s statutes and (2) the OAPA’s immunity under the Eleventh Amendment.

Jergens’s response maintained that “there are Due Process rights to a ‘meaningful review’ in the

parole process,” and that, based on an Ohio Supreme Court case involving a state entity, Ohio can

be sued in federal court. R. 12 (Resp. to Mot. to Dismiss at 2). In a Report and Recommendation,

the magistrate judge recommended that Jergens’s complaint be dismissed because Ohio had not

created any liberty interest in release on parole. The magistrate judge further noted that even if Ohio

had created a liberty interest, due process in the parole context requires only that the prisoner have

an opportunity to be heard and receive a statement of reasons for denying parole, both of which

Jergens was afforded in this case. The district court adopted the magistrate judge’s report,

concluding that because there was no constitutional liberty interest at stake, § 1983 does not provide

relief for Jergens’s claim that he was denied meaningful consideration. Jergens appealed.




       2
        The paragraphs in the complaint appear to be misnumbered. The record suggests that this
is merely a clerical error and that no pages are missing from the complaint.

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


                                            II. ANALYSIS

A. Jergens’s Motion to Take Judicial Notice

        Before addressing the merits of Jergens’s appeal, we must first rule on his motion for judicial

notice, in which Jergens seeks—for the first time—to introduce materials that were filed in related

state-court proceedings, including motions, hearing transcripts, and documentation relating to his

parole proceedings. These materials, however, are not appropriate for the taking of judicial notice.

Cf. Fed. R. Evid. 201(b) (permitting judicial notice of facts “not subject to reasonable dispute

because [they are] (1) generally known within the trial court’s territorial jurisdiction; or (2) can be

accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).

Although we are certainly permitted to take judicial notice of court records and judicial proceedings

under some circumstances, such as to confirm the fact of filing, Winget v. JP Morgan Chase Bank,

N.A., 537 F.3d 565, 576 (6th Cir. 2008), cert. denied, 129 S. Ct. 2159 (2009), we may not do so in

order to discern the truth of the facts asserted within that filing. This is particularly so in cases like

this one, when the significance of the records sought to be judicially noticed is subject to dispute,

United States v. Husein, 478 F.3d 318, 337 (6th Cir. 2007), or when the records are introduced

merely to bolster factual allegations that should have been presented in the initial complaint,

Armengau v. Cline, 7 F. App’x 336, 345 (6th Cir. 2001) (unpublished opinion) (reversing a district

court decision to take judicial notice of facts in the state-court proceedings and stating in the

qualified-immunity context that “it is emphatically not the job of the court to salvage a complaint

by taking judicial notice of facts the plaintiff should have included in an amended complaint or a


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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


responsive pleading”). Moreover, because these documents were not submitted to the district court,

we are under no obligation “to enlarge the record on appeal by taking judicial notice of extra-record

facts for the first time.” United States v. O’Dell, 805 F.2d 637, 643 (6th Cir. 1986). Accordingly,

we deny Jergens’s motion. Regardless, even if we were to consider the documents he proposes,

because Jergens’s claim is foreclosed by Supreme Court and Sixth Circuit precedent, those materials

would not change the outcome of his case.

B. The District Court’s Dismissal

       Turning to the district court’s order, Jergens insists that Ohio law creates a liberty interest

in a meaningful parole process and that the district court therefore erred in dismissing his case.

Because the district court dismissed Jergens’s case pursuant to Federal Rule of Civil Procedure

12(b)(6), we review the complaint de novo, accepting Jergens’s allegations as true and taking all

reasonable inferences in his favor. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008),

cert. denied, 555 U.S. 1099 (2009). We do not, however, “accept as true legal conclusions or

unwarranted factual inferences.” Id. (internal quotation marks omitted).

       The Supreme Court mandates a two-step analysis for procedural due-process claims: “We

first ask whether there exists a liberty or property interest of which a person has been deprived, and

if so we ask whether the procedures followed by the State were constitutionally sufficient.”

Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). As to the first step, it is now axiomatic that “[t]here

is no constitutional or inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,


                                                  5
No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


7 (1979). States in fact have no duty even to establish a system for parole. Id. When such a system

is in place, however, the existence of a liberty interest in release is entirely dependent on state law.

See id. at 12. Thus, if state statutes vest complete discretion to the parole board to determine parole

eligibility, no liberty interest exists. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 464–65 (1989).

If, on the other hand, state law wrests from the board selected aspects of its discretion—for example

by unequivocally requiring release upon the prisoner’s demonstration of certain conditions, see

Greenholtz, 442 U.S. at 11, 13, or in the absence of others, see Board of Pardons v. Allen, 482 U.S.

369, 377–78 (1987)—a liberty interest protectable under the Due Process Clause is recognized.

        In accordance with these principles, we begin with the question whether Ohio law recognizes

the existence of a liberty interest in parole. That answer is governed directly by our recent opinion

in Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007), cert. denied, 553 U.S. 1005 (2008), which

held under the same statutory and regulatory structure relevant to the present case that “the state of

Ohio has not created a liberty interest in parole eligibility, as it has a completely discretionary parole

system.”3 (internal quotation marks omitted); see also Jago v. Van Curen, 454 U.S. 14, 20 (1981)

(concluding under an earlier similar regulatory structure that “[p]arole for Ohio prisoners lies wholly



        3
         Ohio Revised Code § 2967.03, which governs the OAPA’s authority, states in relevant part
that the OAPA “may . . . grant a parole to any prisoner for whom parole is authorized, if in its
judgment there is reasonable ground to believe that . . . paroling the prisoner would further the
interests of justice and be consistent with the welfare and security of society” (emphasis added).
Although the Ohio Administrative Code identifies more specific procedures for releasing prisoners
on parole, these too are discretionary. See Ohio Admin. Code § 5120:1-1-07(A) (“An inmate may
be released on or about the date of his eligibility for release, unless the parole board . . . determines
that he should not be released on such date for one or more of the following reasons . . . .”).

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


within the discretion of the OAPA,” and thus that “[t]he statutes which provide for parole do not

create a protected liberty interest for due process purposes” (internal quotation marks omitted)).

Thus, it is well established that Ohio law does not create a protected liberty interest in release from

parole.4

       In attempting to identify a relevant liberty interest in spite of these adverse authorities,

Jergens relies primarily on two precedents. The first is the Ohio Supreme Court decision in Layne

v. Ohio Adult Parole Authority, 780 N.E.2d 548, 555 (Ohio 2002), which, while recognizing the

broad discretion given to the OAPA under Ohio statutes, held that the OAPA’s parole guidelines

nonetheless require that criminal offenders as a procedural matter receive “meaningful consideration

for parole.” Second is Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005), which recognized that

constitutional challenges to parole-board procedures are cognizable under 42 U.S.C. § 1983 so long

as the action’s success is not dependent on demonstrating the invalidity of confinement. Neither

decision helps Jergens’s case.


       4
        Jergens also seems to argue that Bogan’s “official” statement that he would not consider
Jergens’s attorney’s proposed corrections to Jergens’s parole file constitutes an official policy
statement that somehow curbs the OAPA’s discretion and creates a liberty interest. Appellant Br.
at 7. Because Jergens did not raise this argument below, we need not consider it on appeal. Molina-
Crespo v. U.S. Merit Sys. Protection Bd., 547 F.3d 651, 662 (6th Cir. 2008) (“[T]his court will not
consider claims that are presented for the first time on appeal nor arguments that are not properly
raised below.” (internal quotation marks omitted)). Furthermore, even assuming that the import of
Bogan’s statement could be stretched to the degree that Jergens proposes, the Ohio Supreme Court
has made clear that the OAPA is not bound by its own policy guidelines because “they place no
‘substantive limits on official discretion.’” State ex rel. Hattie v. Goldhardt, 630 N.E.2d 696, 698
(Ohio 1994) (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). Thus, even if Bogan’s
statement could properly be classified as a policy statement, that conclusion would have no impact
on the OAPA’s discretion or the existence of a liberty interest.

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


        First and foremost, the existence of state-mandated procedural requirements does not, in and

of itself, create a protected liberty interest. Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)

(“[A]n expectation of receiving process is not, without more, a liberty interest protected by the Due

Process Clause.”); Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994) (“[P]rocedural statutes and

regulations governing parole do not create federal procedural due process rights . . . .”), cert. denied,

513 U.S. 1158 (1995); Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233,

237 (6th Cir. 1991) (evaluating Ohio statutory and regulatory provisions governing parole and

concluding “that procedural requirements alone cannot establish a liberty interest, and a violation

of state regulations requiring a particular kind of hearing cannot violate the Due Process Clause

absent some independent basis for finding a liberty interest that has been taken away” (citation and

internal quotation marks omitted)).5


        5
         This case does not involve a challenge to a parole decision as based either on blatantly
unconstitutional policies or considerations, such as a prisoner’s race or religion, or on a wholly
arbitrary decision-making process. Cf. Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996) (noting that
even fully discretionary statutes governing state parole boards do not permit “totally arbitrary parole
decisions founded on impermissible criteria” (internal quotation marks omitted)). But cf. Bell v.
Anderson, 301 F. App’x 459, 462 (6th Cir. 2008) (unpublished opinion) (citing Burkett and
observing that the reasoning in that and similar cases has not been adopted in this circuit). Neither
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. But in this case, Jergens’s nonspecific
allegations of falsity simply fail to make out such a claim. Cf. Jones v. Ray, 279 F.3d 944, 946 (11th
Cir. 2001) (“While we have held that the use of false information in a parole file can be a due
process violation, prisoners cannot make a conclusory allegation regarding the use of such
information as the basis of a due process claim.”). In fact, Jergens has not asserted at all that the use
of false information independently constituted a due-process violation; nor has he claimed that the
OAPA’s actions were grounded in constitutionally impermissible considerations. Instead, Jergens’s
claim rests on the broader assertion that, as a procedural matter, he was denied the meaningful

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


       What is more, even if Jergens did have a protected liberty interest, “the question of which

due process requirements apply is one of federal law, not [state] law.” Cooke, 131 S. Ct. at 862 n.*.

Thus, whether the parole board met Ohio’s state-law requirements for meaningful review as

established by Layne is not dispositive of Jergens’s federal due-process claim; as a constitutional

matter, Jergens received adequate process so long as “he was allowed an opportunity to be heard and

was provided a statement of the reasons why parole was denied.” Id. at 862.6 Indeed, the Supreme

Court has explicitly rejected the view that federal courts must apply state procedural rules that go

beyond the scope of the minimum required under the Due Process Clause, concluding that “[s]uch



hearing that is required under Ohio law. As discussed above, in the absence of a protected liberty
interest, his purely procedure-based claim must fail. We therefore leave the merits of the related
due-process questions for another day.
       6
         It should be noted that Jergens also relies extensively on the Ohio Court of Appeals decision
in Ankrom v. Hageman, Nos. 04AP-984, 04AP-985, 04AP-986, 04AP-987, 04AP-988, 04AP-989,
04AP-990, 04AP-991, 04AP-993, 04AP-994, 2005 WL 737833 (Ohio Ct. App. Mar. 31, 2005), to
support his contention that Ohio recognizes a right to meaningful review during the parole
process—another argument that appears for the first time on appeal. Applying Layne v. Ohio Adult
Parole Authority, 780 N.E.2d 548 (Ohio 2002), to a class action involving parole-eligible prisoners
who had pleaded to lesser-included offenses but were serving lengthier sentences based on the
OAPA’s determination that they fell into a higher sentencing category than warranted under the
offense of conviction, Ankrom affirmed a trial court decision finding that such action by the OAPA
constituted a denial of meaningful consideration in violation of Layne. Ankrom, 2005 WL 737833,
at *7. Jergens now asserts that he is a member of the class of prisoners entitled to a new hearing in
the wake of the Ankrom decision and that the meaningful-hearing requirement therefore applies to
Jergens “not only in general, but specifically.” Reply Br. at 1. Apart from his reliance on a general
right to meaningful review derived from Layne, however, Jergens did not raise this argument below
or even cite the Ankrom case. Accordingly, we need not consider the argument here. Molina-
Crespo, 547 F.3d at 662. In any event, Jergens’s reliance on Ankrom suffers from the same
deficiencies as his reliance on Layne, and thus, even if we were to consider the argument, it does not
support his claim.

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No. 11-3835
Jergens v. State of Ohio Dep’t of Rehab. and Corr. Adult Parole Auth.


reasoning would subject to federal-court merits review the application of all state-prescribed

procedures in cases involving liberty or property interests.” Id. at 863; see also Sweeton, 27 F.3d

at 1165 (“The parole authorities of the State of Michigan may have been required to follow their own

procedural statutes and regulations on parole . . . as a matter of state law, but there is not now any

viable legal theory by which Michigan state authorities are required to follow such procedural rules

as a matter of federal due process.”). In light of these precedents, that Ohio courts have established

procedural requirements governing OAPA hearings does not support Jergens’s federal claim under

§ 1983. See Michael, 498 F.3d at 374 (“42 U.S.C. § 1983 does not provide relief for a violation of

state law.”). Jergens is thus unable to state a viable claim for relief against either the OAPA or the

individual defendants Bogan and Venters, and the district court was correct in dismissing his case.

                                       III. CONCLUSION

       Because Ohio law does not create a liberty interest in parole, Jergens’s § 1983 claim

challenging the OAPA’s and the individual parole-board members’ implementation of Ohio’s

meaningful-hearing requirements in determining his eligibility for parole necessarily fails.

Accordingly, we AFFIRM the judgment of the district court.




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