GARLAND v. JOSEPH J. PETERS INSTITUTE et al

Filing 36

MEMORANDUM/OPINION THAT KENDALL GARLAND'S COMPLAINT IS BARRED BY HECK, FAILS TO STATE A CLAIM, AND IS DISMISSED. A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 3/31/17. 3/31/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
KENDALL GARLAND,

:
:
Plaintiff,
:
:
v.
:
:
JOSEPH J. PETERS INSTITUTE (JJPI);
:
CHAD MARGULIES;
:
AGENT DAGE GARDNER,
:
:
Defendants.
:
__________________________________________

No. 2:16-cv-00527

OPINION
Defendants JJPI and Margulies’s Motion to Dismiss, ECF No. 23 – Granted
Defendant Gardner’s Motion to Dismiss, ECF No. 24 – Granted
Joseph F. Leeson, Jr.
United States District Judge

March 31, 2017

Defendants Joseph J. Peters Institute (“JJPI”), Chad Margulies, and Agent Dade Gardner
move to dismiss Plaintiff Kendall Garland’s Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Because Garland’s claims are barred by Heck v. Humphrey and because
his Complaint fails to plausibly allege a violation of his Fifth Amendment rights, Defendants’
motions are granted, and Garland’s Complaint is dismissed.

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I.

Background
Garland alleges the following facts.
Garland was directed as part of a previous sentence of probation to attend sexual abuse

counseling at JJPI. 1 Complaint ¶ 3, ECF No. 3. Margulies was Garland’s treatment facilitation or
therapist at JJPI. Id. ¶ 5. In early 2014, Margulies informed Garland that Garland’s probation
officers and JJPI wanted him to take a polygraph examination as part of his treatment. Id. ¶¶ 21,
28. Garland initially refused to sign papers agreeing to take the examination. Id. ¶ 29. After
Garland’s probation officers learned of his refusal, the officers threatened Garland with
revocation of probation if he did not take the examination “and answer every question posed.”
Id. ¶¶ 32-34. 2 Further, Margulies told Garland that the polygraph was “mandatory.” Id. ¶ 35.
Probation officers told Garland that the polygraph exam would be a “maintenance polygraph that
would not ask about the underlying offense.” Id. ¶ 36.
Garland ultimately agreed to take the polygraph examination. During the exam he was
asked “incriminating questions about sexual contact with minors and sexual contact with
prostitutes,” as well as “other incriminating questions.” Id. ¶¶ 52-53. Garland alleges that “[t]he
implications of the responses required by the polygraph examination invite[ d] exposure to
danger of prosecution for various charges.” Id. ¶ 55. Further,
The potentially incriminating testimony or compelled answers suggest exposure
to prosecution, additional evidence or investigations which are completely
separate from the basis of the plaintiff’s probation revocation and resentence, and
1

Garland’s probation stemmed from his 2002 nolo contendere plea in Pennsylvania to
aggravated indecent assault and corrupting the morals of a minor. See Garland v. Pennsylvania,
No. CV 14-5329, 2016 WL 1266743, at *1 (E.D. Pa. Feb. 16, 2016), report and recommendation
adopted, No. CV 14-5329, 2016 WL 1255753 (E.D. Pa. Mar. 30, 2016) (summarizing Garland’s
history).
2
In addition, Garland alleges that after the probation officers learned of Garland’s refusal
to take the exam, they increased the frequency of Garland’s requirement to meet with his
probation officers, from a monthly basis to a weekly basis. Id. ¶ 39.
2

also separate from normal probation conditions (and also for which the plaintiff
would be completely innocent of).
Id. ¶ 61
It was determined that Garland failed the exam, and he was discharged from treatment at
JJPI.
Following Garland’s discharge from JJPI, a hearing was held on May 30, 2014, in the
Philadelphia County Court of Common Pleas before the Honorable Ann M. Butchart, to
determine whether Garland had violated his probation. At the hearing, Agent Gardner, a
probation officer, testified that Garland was “unsuccessfully discharged from the sex offenders
treatment after he failed a polygraph regarding sexual contact with minors and sexual contact
with prostitutes.” Tr. 4:7-11, ECF No. 3. 3 According to Agent Gardner, Garland’s polygraph
failure and resulting discharge from JJPI constituted a violation of his probation. Tr. 4:11-12.
Agent Gardner explained that Garland was polygraphed because he “wasn’t cooperating or
admitting [to his past offenses] in his group[]” sessions. Tr. 9:23-25. Agent Gardner also noted
that Garland initially said he did not want to do the polygraph and wouldn’t sign the paperwork,
but “then we spoke to him and then he went back on and signed the paperwork for the polygraph
. . . and then came back and failed.” Tr. 10:4-9. 4
In response to Judge Butchart’s questions about the reasons for the polygraph, Agent
Gardner replied that “[t]he polygraph was administered . . . as a maintenance [polygraph] due to
his not admitting to the offense and being in a distance between the offense,” and because “we
were seeing some things in his behavior too.” Tr. 11:20-12:6. Judge Butchart then summarized
3

Garland attached a copy of the hearing transcript to his Complaint.
At the hearing, Garland testified that he had never denied his offense and did not refuse
to take the polygraph; rather, he “just wanted to speak with [his probation officers] to clarify” the
reasons for the exam. Tr. 16:1-22.
4

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that, as she understood it, there were two reasons that the polygraph was administered: first,
because of Garland’s denial of his past offense and, second, “because of inconsistencies between
what he was saying and what . . . he [was] believed to be doing.” Tr. 12:7-16. Agent Gardner
replied that this was correct. Tr. 12:17. Judge Butchart further observed that if Garland had
“passed the polygraph, it would have indicated, as far as the denial went,” that he could have
been successfully discharged from treatment “[b]ecause it would have been determined that this
[treatment], in fact, was no longer needed.” Tr. 12:24-13:13.
Judge Butchart asked if “the fact that [Garland] failed the polygraph would be interpreted
to underscore the need to continue treatment . . . as well as affirming the discrepant behaviors,”
to which the Commonwealth’s attorney replied “yes.” Tr. 13:15-20. After reviewing Garland’s
history of treatment at JJPI, beginning in 2007, and observing that Garland had “not been able to
complete this program despite three attempts,” which “causes concern,” Tr. 28:11-19, Judge
Butchart revoked Garland’s probation, stating that she had “great concerns concerning
particularly the nature of the offense and . . . why [Garland] has been unable to successfully
complete treatment.” Tr. 31:3-11.
In the Complaint, Garland alleges that he was “coerced and compelled to take the
[polygraph] exam and to answer every question posed within” and that “the answers compelled
as a result of the polygraph were used, sought to be used or attempted to be used at the plaintiff’s
probation hearing and sentence in an effort to assist in the finding or justification of imposing a
harsher sentence.” Compl. ¶¶ 59, 67. He alleges that this conduct violated his Fifth Amendment
rights. Garland seeks the following relief: (1) a declarative judgment stating that Defendants
violated his Fifth Amendment rights and substantive due process rights and that he was retaliated

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against for exercising his Fifth Amendment rights; and (2) compensatory and punitive damages
for the alleged violations.
II.

Standard of Review – Motion to Dismiss
In rendering a decision on a motion to dismiss, this Court must “accept all factual

allegations as true [and] construe the complaint in the light most favorable to the plaintiff.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if
“the ‘[f]actual allegations ... raise a right to relief above the speculative level’ ” has the plaintiff
stated a plausible claim. Id. at 234 (quoting Twombly, 550 U.S. at 555). However, “the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that determining whether a
complaint states a plausible claim for relief ... [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense”). The defendant bears the
burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be
granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
III.

Analysis

A.

Garland’s claims are barred by Heck v. Humphrey.
In Heck v. Humphrey, 512 U.S. 477 (1994). the Supreme Court held that “in order to

recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been [invalidated].” Id. at 486–87
(footnote omitted). Thus, “the district court must consider whether a judgment in favor of the

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plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” Id. at 487. Heck has been extended to cases challenging parole and
probation revocations. See, e.g., Johnson v. Mondrosch, 586 F. App’x 871, 873 (3d Cir. 2014). 5
Defendants contend Garland’s claims, were they to succeed, would necessarily imply the
invalidity of the decision to revoke his probation. Accordingly, because Garland has not alleged
that his probation revocation was overturned or declared invalid, Defendants contend that
Garland’s claims are barred by Heck.
Garland responds his claims are not Heck-barred because “even if the success of the
claim could possibly put [him] in a better position to attack the sentence and/or revocation,” this
success “still would not ‘necessarily’ invalidate the revocation or sentence,” because there was
other “separate and independent evidence” to support the revocation and sentence. Pl.’s Resp. 910, ECF No. 28. Similarly, in his Complaint, Garland alleges that the compelled statements “do
not form the basis of revocation or sentence,” that “the court did not state or appear to base the
sentence upon the compelled answers to incriminating questions,” and that “the finding of
revocation and sentence are not inextricably linked to the compelled answers or the polygraph.”
Compl. ¶¶ 67-69.
The Court agrees with Defendants that a judgment in favor of Garland in this case would
necessarily imply the invalidity of his probation revocation. As the transcript of Garland’s
revocation hearing makes clear, his probation was revoked because he was discharged from JJPI
as a result of failing the polygraph examination. The gravamen of Garland’s claims in this case is
that Defendants’ administration of the polygraph examination and the introduction of the
5

As the court in Johnson observed, the fact that a probationer has been re-released on
parole does not preclude the application of Heck. See id.
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examination results at the revocation hearing violated his Fifth Amendment rights. Because
success in these claims would necessary imply the invalidity of the revocation, Garland’s claims
are barred by Heck.
B.

Garland fails to state a claim for violation of his Fifth Amendment rights.
Even if Garland’s Complaint were not barred by Heck, the Complaint would fail on the

merits because it fails to state a Fifth Amendment claim. The Fifth Amendment, as incorporated
and made applicable to the states through the Fourteenth Amendment, provides that no person
“shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
“It has long been held that this prohibition not only permits a person to refuse to testify against
himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer
official questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.’” Minnesota v. Murphy, 465
U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). In all such
proceedings,
a witness protected by the privilege may rightfully refuse to answer unless and
until he is protected at least against the use of his compelled answers and evidence
derived therefrom in any subsequent criminal case in which he is a defendant. . . .
Absent such protection, if he is nevertheless compelled to answer, his answers are
inadmissible against him in a later criminal prosecution.
Id. (quoting Lefkowitz, 414 U.S. at 78, 94). Accordingly, if a witness’s compelled answers are
used against him in a criminal prosecution, his Fifth Amendment rights have been violated. See
Folk v. Atty. Gen. of Commonwealth of Pa., 425 F. Supp. 2d 663, 667 (W.D. Pa. 2006) (“The
Fifth Amendment right is not violated until compelled statements are used against a person in a
criminal case.”); see also Roman v. DiGuglielmo, 675 F.3d 204, 210 (3d Cir. 2012) (“An
individual trying to make out a Fifth Amendment claim must demonstrate two key elements:

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compulsion and use.”); Renda v. King, 347 F.3d 550, 559 (3d Cir. 2003) (“[I]t is the use of
coerced statements during a criminal trial . . . that violates the Constitution.”).
In Murphy, the Supreme Court held that a probationer’s “general obligation to appear and
answer questions truthfully [does] not in itself convert [his] otherwise voluntary statements into
compelled ones.” 465 U.S. at 427. Accordingly, “[a] state may require a probationer to appear
and discuss matters that affect his probationary status; such a requirement, without more, does
not give rise to a self-executing privilege.” Id. at 435. But the Court held that “[t]he result may
be different if the questions put to the probationer, however relevant to his probationary status,
call for answers that would incriminate him in a pending or later criminal prosecution.” Id. In
these circumstances, “if the state, either expressly or by implication, asserts that invocation of the
privilege would lead to revocation of probation, it would have created the classic penalty
situation, the failure to assert the privilege would be excused, and the probationer’s answers
would be deemed compelled and inadmissible in a criminal prosecution.” Id. In short, a state
may not require a probationer “to choose between making incriminating statements and
jeopardizing his conditional liberty by remaining silent.” Id. at 436; see also United States v. Lee,
315 F.3d 206, 213 (3d Cir. 2003) (“A probationer may not refuse to answer a question just
because his answer would disclose a violation of probation; rather, a probationer may only
invoke his privilege against self-incrimination if a truthful answer would expose him to a
prosecution for a crime different from the one on which he was already convicted.”). 6

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Under Murphy, “the threatened penalty must be specifically addressed to the exercise of
the privilege for the defendant to claim ex post that he had been compelled to speak; it [is] not
enough that the defendant may have reasonably believed his probation would be revoked for
failing to answer his probation officer’s questions.” United States v. Frierson, 945 F.2d 650, 661
(3d Cir. 1991). In other words, “[f]or statements to be considered compelled, the Court [in
Murphy] required that the threat of punishment be conditioned on the assertion of the privilege; a
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Here, Garland has not plausibly alleged that the state compelled him to incriminate
himself. As set forth above, Garland alleges that after he refused to sign paperwork agreeing to
take the examination, the probation officers threatened Garland with revocation of his probation
if he did not take the examination “and answer every question posed.” But Garland’s refusal to
sign the paperwork was not a legitimate exercise of the Fifth Amendment privilege, as at that
time no question had been put to him for which “a truthful answer would expose him to a
prosecution for a crime different from the one on which he was already convicted.” See Lee, 315
F.3d at 213; see also Aruanno v. Spagnuolo, 292 F. App’x 184, 186 (3d Cir. 2008) (“[T]he Fifth
Amendment protects against ‘real dangers, not remote and speculative possibilities.’” (quoting
Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478 (1972)). Nor does the “general
requirement of truthfulness or disclosure” that the officers allegedly imposed on Garland suffice
to render his statements compelled. In short, Garland has not alleged that he was forced “to
choose between making incriminating statements and jeopardizing his conditional liberty by
remaining silent.” See Murphy, 465 U.S. at 436.
In any event, even if Garland’s statements were compelled, they have not been used
against him in a criminal case. A probation revocation hearing is not a “criminal proceeding” for
the purposes of the Fifth Amendment. Murphy, 465 U.S. at 435 n.7 (1984) (“Although a
revocation proceeding must comport with the requirements of due process, it is not a criminal
proceeding.”); Gagnon v. Scarpelli, 411 U.S. 778, 782, (1973) (“Probation revocation, like
parole revocation, is not a stage of a criminal prosecution.”); see also Folk v. Atty. Gen. of
Commonwealth of Pa., 425 F. Supp. 2d 663, 667–68 (W.D. Pa. 2006) (“There can be no dispute
that Department of Corrections rehabilitation programs and Parole Board proceedings do not

general requirement of truthfulness or disclosure could not be used after the fact to claim that
incriminating statements had been compelled.” Id.
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constitute a ‘criminal case’ within the meaning of the Fifth Amendment.”). Thus, “[j]ust as there
is no right to a jury trial before probation may be revoked, neither is the privilege against
compelled self-incrimination available to a probationer.” Murphy, 465 U.S. at 435 n.7; see also
id. at 440 (observing that “probation revocation proceedings are not criminal in nature” and that
“the Fifth-Amendment ban on compelled self-incrimination applies only to criminal
proceedings”) (Marshall, J., dissenting). Accordingly, even if compelled statements had been
introduced during the revocation hearing, this would not have violated Garland’s Fifth
Amendment rights.
C.

Garland fails to state a claim for violation of his substantive due process rights.
Garland’s Complaint, in its prayer for relief, asserts that Defendants violated his

substantive due process rights, but he has not elaborated on this assertion in his filings in
response to Defendants’ motions to dismiss this claim. This claim is barred by the “morespecific-provision rule” established by the Supreme Court. See County of Sacramento v. Lewis,
523 U.S. 833, 843–44 (1998). “Under this rule, ‘if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed
under the standard appropriate to that specific provision, not under the rubric of substantive due
process.’” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (quoting United
States v. Lanier, 520 U.S. 259, 272 n. 7 (1997)). As discussed above, Garland’s claims are
covered by the Fifth Amendment and have been analyzed under the standards appropriate to that
specific provision.

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IV.

Conclusion
For the reasons stated above, Garland’s Complaint is barred by Heck, fails to state a

claim, and is dismissed. Because Garland’s Complaint is barred by Heck, the dismissal is without
prejudice to refiling in the event that his probation revocation is invalidated. See Brown v. City of
Philadelphia, 339 F. App’x 143, 145–46 (3d Cir. 2009) (holding that “[w]hen a § 1983 claim is
dismissed under Heck, the dismissal should be without prejudice”) (quoting Fottler v. United
States, 73 F.3d 1064, 1065–66 (10th Cir. 1996)). A separate order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._________
JOSEPH F. LEESON, JR.
United States District Judge

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