United States District Court, M.D. Tennessee, Nashville Division
MARSHALL H. MURDOCK, Plaintiff,
PATSY BRUCE, et al., Defendants.
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
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,
September 21, 2016, Defendants Patsy Bruce, Robert E. Cooper,
Jr., Ronnie Cole, Yusuf Hakeem, Joe Hill, Anthony Johnson,
Lisa Jones, Derrick Schofield, and Charles
Traughberfiled 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.
reasons given below, Defendants' Motion to Dismiss (Doc.
No. 141) will be GRANTED.
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#
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.
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
http://apps.tn.gov/foil-app/search.jsp, last visited
March 21, 2017.
claims in the present action are summarized as follows:
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. (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.)
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.)
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.)
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#
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 ...