ORT v. RENDELL et al

Filing 7

MEMORANDUM AND ORDER THAT THE MOTION IS GRANTED. PLFF'S COMPLAINT IS HEREBY DISMISSED WITHOUT PREJUDICE. THIS CASE SHALL BE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/26/09. 3/27/09 ENTERED AND COPIES MAILED AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JAMES ORT, Plaintiff v. EDWARD RENDELL, Governor, and CATHERINE C. McVEY, Chairperson Defendants : : : : : : : : : : CIVIL ACTION

NO. 08-6041

MEMORANDUM STENGEL, J. March 26, 2009

P ro se state prisoner James Ort claims that his denial of parole violated his F o u rte e n th Amendment due process rights and speculates that Governor Rendell's parole m o r a to r iu m will preclude him from being considered for parole in 2009. Because Ort has a lleg e d no due process violation and the parole moratorium is irrelevant, I will dismiss his c o m p la in t without prejudice.

I . BACKGROUND O rt is an inmate at SCI Waymart, serving a sentence for three crimes he committed in March 2006: simple assault, recklessly endangering another person and making te rro ris tic threats. Complaint ¶ 6. Ort was eligible for parole in 2008, but was denied and to ld he would be re-considered in or after February 2009. Id.; Plaintiff's Ex. 1. Governor Rendell suspended the Parole Board's authority to parole on September

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2 9 , 2008. A few weeks later,1 the moratorium was lifted for non-violent offenders. C o m p la in t ¶ 14. Ort speculates that he will be deemed a violent offender and not co n side red for parole this year. Y e t, according to Ort's own complaint, the Parole Board does not consider him a v io le n t offender. Plaintiff's complaint, Ex. 3 (Parole Moratorium Update stating " A tta c h ed is a complete list of violent offenses; anything not on this list is considered n o n -vio len t;" none of Ort's crimes is listed).

II. DISCUSSION D e f en d a n ts filed a motion to dismiss Ort's complaint because it fails to state a c la im .2 As will be explained below, the motion is granted because Ort has alleged no due p r o c e s s violation and the parole moratorium is irrelevant to his parole status.3

Specifically, the moratorium was lifted on October 20, 2008. Although it is not part of the record in this case, it appears that Governor Rendell completely lifted the parole moratorium on December 1, 2008, thirty days before this case was filed. See, e.g., "Pa. Parole board lifts ban," Regina Medina, PHILADELPHIA DAILY NEWS, Dec. 2, 2008 (available at http://www.philly.com/dailynews/local/20081202_Pa__Parole_board_lifts_ban.html). The standard for dismissal is certainty that no relief could be granted under any set of facts that could be proved consistent with the complaint's allegations. Fed. R. Civ. P. 12(b)(6); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). In order to state a claim, the complaint must contain " `enough factual matter (taken as true) to suggest' the required element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 127 S.Ct. at 1965). The motion to dismiss was filed on February 20, 2009 (Document #2). On February 27, 2009, Mr. Ort filed a motion for an extension of time (Document #3) which was granted on March 4, 2009 (Document #5). The order permitted Mr. Ort until March 13, 2009 to respond to 2
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A . The Parole Board's Denial of Parole Did Not Amount to a Due Process V io la tio n O rt does not have a right - constitutional or inherent - to be paroled. Greenholtz v. In m a te s of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (quoting M e a ch u m v. Fano, 427 U.S. 215, 224 (1976) which states "given a valid conviction, the c rim in a l defendant has been constitutionally deprived of his liberty" therefore there is no lib e rty interest in being conditionally released before a valid sentence expires). Pennsylvania has not created a liberty interest in parole. Zuniga v. Pennsylvania Bd. of P ro b a tio n and Parole, 2008 WL 4115143, 2 (M.D. Pa. 2008) (stating that "Pennsylvania law does not create a liberty interest in parole"). In the absence of any protected liberty in te re st in parole, therefore, the due process protection does not apply. See, e.g., Wright v . Cuyler, 517 F.Supp. 637, 640 (E.D. Pa. 1981)(citing Greenholtz, 442 U.S. at 11). T o the extent Ort asserts a substantive due process claim, that claim also is d ism iss e d because "federal courts, on habeas review, are not to 'second-guess parole b o a rd s ,' and the requirements of substantive due process are met if there is some basis for th e challenged decision." Hunterson v. DiSabato, 308 F.3d 236, 246 (3d Cir. 2002) (q u o tin g Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001)). The basis for the parole b o ard 's decision was that "the interests of the Commonwealth will be injured if [Ort] were p a ro le d ." Complaint, Plaintiff's Ex. 1, Notice of Board Decision. This factual assessment

the defendants' motion, but the plaintiff has filed no response. 3

m u s t be presumed correct under Hunterson, 308 F.3d at 250. Therefore, Ort has stated no c la im against Chairperson McVey.

B . The Parole Moratorium is Irrelevant to Ort's Parole Ort may have a liberty interest, under Pennsylvania law, in the consideration of p a ro le . Zuniga, 2008 WL 4115143 at 2. But his claim against Governor Rendell is based o n ly on baseless speculation that he will be denied because he will be deemed a violent o f f en d e r under the moratorium rubric. Ort's own complaint, however, shows that the P a ro le Board does not consider him a violent offender. Complaint, Plaintiff's Ex. 3. None of the crimes for which Ort was convicted is on the Parole Board's list of violent o f f e n se s. Therefore Ort has not stated a claim against Governor Rendell.

C . There is no basis for a declaratory judgment because Ort is not a " p ro sp ec tiv e defendant" T h e Declaratory Judgment Act provides early adjudication to one uncertain of his r ig h ts before his adversary files suit and before damage is incurred. In other words, d e c la ra to ry judgments allow prospective defendants to establish their non-liability. T ra v e le rs Ins. Co. v. Davis, 490 F.2d 536, 543 (3d Cir. 1974) (quoting E. Edelmann & Co. v. T rip e -A Specialty Co., 88 F.2d 852, 854 (7th Cir. 1937) and stating that the "objectives of th e Federal Declaratory Judgment Act are: . . . to avoid accrual of avoidable damages to o n e not certain of his rights and to afford him an early adjudication without waiting until

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h i s adversary should see fit to begin suit, after damage had accrued"). Ort is not a p r o s p e c t iv e defendant. He is a plaintiff who asks this court to declare that his rights were v io la te d . Complaint ¶ 1. Declaratory judgment is inappropriate for the conduct Ort seeks to adjudicate - the due process denial connected to his unfavorable parole decision b e c a u s e that is past conduct. Corliss v. O'Brien, 2006 WL 2686644, 3 (3d Cir. 2006).

I I I . CONCLUSION O rt has alleged no claim: there is no due process violation arising from his parole d e n ia l, the parole moratorium is irrelevant to his case, and no claim falling within the a m b it of the Declaratory Judgment Act has been stated. The complaint is dismissed w ith o u t prejudice. An appropriate order follows.

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA J A M E S ORT, P laintiff v. E D W A R D RENDELL, Governor, and C A T H E R I N E McVEY, Chairperson D efe n d a n ts : : : : : : : : : : C IV IL ACTION

N O . 08-6041

ORDER

A N D NOW, this 26th day of March, 2009, upon consideration of Commonwealth d e f e n d a n ts' motion to dismiss (Document #2), it is hereby ORDERED that the motion is G R A N T E D . Plaintiff's complaint is hereby dismissed without prejudice. This case shall b e closed for statistical purposes.

B Y THE COURT:

/s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.

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