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Murdock v. Bruce

United States District Court, M.D. Tennessee, Nashville Division

March 24, 2017

PATSY BRUCE, et al., Defendants.



         Plaintiff Marshall H. Murdock filed this action pro se and in forma pauperis on November 29, 2012. (Doc. No. 1.) He amended his complaint in April 2013 (Doc. No. 11), and was permitted to further amend in March 2014 (Doc. No. 25) and February 2015 (Doc. No. 62). After motions to dismiss related to insufficient service of process were denied in March 2015 (Doc. No. 78), Murdock filed two motions for summary judgment, both of which were also denied. (Doc. Nos. 100, 115.)

         On September 21, 2016, Defendants Patsy Bruce, Robert E. Cooper, Jr., Ronnie Cole, Yusuf Hakeem, Joe Hill, Anthony Johnson, Lisa Jones, Derrick Schofield, and Charles Traughber[1]filed the currently pending Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 141.) Thereafter, Murdock secured the services of counsel, who entered an appearance on September 30, 2016. (Doc. No. 144.) Murdock filed a response to the Defendants' Motion to Dismiss through counsel on October 26, 2016 (Doc. No. 145), to which Defendants replied (Doc. No. 147).

         For the reasons given below, Defendants' Motion to Dismiss (Doc. No. 141) will be GRANTED.

         I. Factual Allegations[2]

         On June 19, 2003, Murdock pleaded guilty to attempted first degree murder under Tennessee law and was sentenced to two concurrent prison terms of twenty years with standard release eligibility after serving thirty percent of his sentence. (Doc. No. 1, PageID# 6, 56-57.) Murdock's release eligibility date under this sentence was thus June 19, 2009. (Id. at PageID# 7.) Murdock's case was first reviewed by the Tennessee Board of Parole well before that date, however, at a non-appearance hearing held on October 26, 2006. (Id. at PageID# 6.) The Board denied parole at that hearing on grounds that “release from custody at this time would depreciate the seriousness of the crime of which the offender stands convicted or promote disrespect of the law.” (Id.) The Board set Murdock's next hearing for October 2012, three years after his release eligibility date. (Id. at PageID# 6-7.)

         Murdock filed a petition for a writ of habeas corpus in this Court on October 17, 2011, challenging the Parole Board's failure to hold a hearing on his 2009 release eligibility date. See Murdock v. Colson, Case No. 3:11-cv-01136. In that petition, Murdock raised many of the same legal arguments he makes in this action: that not setting a 2009 hearing date violates the “contract” of his plea agreement; that the Parole Board acted outside its jurisdiction by “overriding” the judge who imposed his sentence; and that the failure to hold a hearing violates his due process rights and is an ex post facto violation that increases the penalty for his offense. Id. Murdock had already filed two habeas actions, however, and was denied permission to file this successive petition by the Sixth Circuit Court of Appeals. In re Marshall H. Murdock, Sixth Circuit Case No. 12-5762.

         The Parole Board held Murdock's second hearing on October 8, 2012. (Id.) The Board denied parole, again on grounds that release would denigrate the seriousness of his offense. (Id.) Murdock was advised of his right to appeal this decision and did so. (Doc. No. 11, PageID# 188, ¶ 11.) That appeal was denied. (Id.) The Board set Murdock's third hearing for October 2017. (Id.) It appears that Murdock was released from custody on January 20, 2017. See Tennessee Felony Offender Information,, last visited March 21, 2017.

         Murdock's claims in the present action are summarized as follows:

         First, Murdock claims that he was denied a fair parole hearing in October 2012. Specifically, Murdock claims that the Parole Board, through Defendant Bruce, “relied on and introduced inaccurate, false or erroneous information into the parole record.” (Doc. No. 1, PageID# 8.) Murdock apparently bases this claim, at least in part, on an allegation that the Board refused to investigate his claim that the State withheld exculpatory evidence regarding disciplinary actions against a detective in his prosecution. (Id. at PageID# 17.) He claims that the Board's decision to deny parole was ‘arbitrary and capricious' in that the Board has consistently and unconstitutionally declined parole to plaintiff.[3] (Id. at PageID# 17-18.) Murdock also claims that Bruce “was bias[ed], unsympathetic, or prejudiced” and his case was not fairly and impartially tried. (Id. at PageID# 9.) For this reason, Murdock requests review “to determine whether the Board exceeded its jurisdiction, or acted illegally, fraudulently, or arbitrarily, ” in violation of his due process protections. (Id. at PageID# 10.)

         Second, Murdock claims that the “bargain” of his plea agreement has been violated, in that he has served more than thirty percent of his twenty-year sentence. (Id. at PageID# 9.) Murdock states that the Board “had no concern that [he] has served over ten (10) years and eight (8) months in prison . . . day for day . . . although his sentence was 20 years at 30%.” (Id.) Murdock claims that this perceived failure to enforce the terms of his plea agreement is a due process violation. (Id.)

         Third, Murdock alleges that the Board “unconstitutionally declined parole to Plaintiff and has set his future action date for parole review to five (5) years 2017, in which the Plaintiff will complete the entire sentence at one-hundred (100%).” (Id. at PageID# 8.) Murdock claims that, by this action, the Board has committed an ex post facto violation by “arbitrarily extend[ing] the Parole Reconsideration Date . . . [to] one-hundred (100%) of his sentence.” (Id. at PageID# 12.)

         Fourth, Murdock claims that his Fifth Amendment due process rights have been violated because he has been denied a protected liberty interest, to wit, his “legitimate expectations of early release from prison.” (Id. at PageID# 13.)

         Fifth, Murdock claims an Eighth Amendment violation, asserting that he “had a right to be free from prejudice, bias, fair treatment in parole determinations, illegal and unconstitutional promulgation of rules, regulations, laws, statutes and ...

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