MCGEE v. PHILADELPHIA COUNTY, PA
MEMORANDUM OPINION. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE WENDY BEETLESTONE ON 1/10/18. 1/10/18 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GREGORY THOMAS, CAITLYN
McLAUGHLIN, JASON McLEAN, JOEL
TINSMAN, AUDREY DONALD,
KIMBERLY BARKLEY, GEORGE
KOONTZ, LEO DUNN, LINDA
ROSENBERG, MARK KOCH,
EVERETTE GILLISON, LESLIE GREY,
MICHAEL POETTIGER, CRAIG McKAY,
THEODORE JOHNSON, EDWIN BURKE,
and JANE DOE (SCHULTZ),
Pro se plaintiff Turon McGee brings this civil rights case against various officials and
employees of the Pennsylvania Board of Probation and Parole (“Board”) related to his two parole
revocations. He presses a panoply of claims under 42 U.S.C. § 1983 against seventeen
Defendants, alleging that Defendants violated (and conspired to violate) various constitutional
rights. The gist of his Complaint is that the Board abused its discretion in revoking his parole
and that his parole officer mistreated him while Plaintiff was at a re-entry services center.
Sixteen of the seventeen Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that follow, the motions to dismiss shall be
granted in part and denied in part.
Plaintiff, a convicted sex offender, violated his parole in late 2015. As a result, the Board
decided to recommit him to Berks County Prison for six months.2 While incarcerated, Plaintiff
The following facts are taken from Plaintiff’s Complaint and shall be taken as true for purposes of this motion.
filed an administrative appeal to seek relief from the Board’s decision to recommit. However, in
a letter signed by Kimberly Barkley, Secretary of the Board, Plaintiff’s appeal was dismissed as
Plaintiff was released on parole in April 2016 and was sent to Coleman Hall, a center that
offered re-entry services. According to the Plaintiff, the Board mistakenly sent him there due to
a clerical error. Plaintiff informed his parole officer, Gregory Thomas, that he was not from the
area around Coleman Hall, and that he had a job and family in Berks County. Although Plaintiff
requested a transfer, it was denied.
While residing at Coleman Hall, Plaintiff claims that Thomas imposed unreasonable
parole restrictions upon him. Thomas, for instance, required that Plaintiff enroll in a workforce
program called GEO. According to Plaintiff, the GEO workforce program was inferior to and
less lucrative than other workforce programs that he could have joined. Thomas also denied
Plaintiff’s requests to have leisure time away from Coleman Hall so that he could visit friends
and family (such as Plaintiff’s ailing mother). In response to these troubles at Coleman Hall,
Plaintiff attempted to contact Thomas’s supervisors, Caitlyn McLaughlin and Jason McLean.
Around mid-June 2016, a staff member at Coleman Hall reportedly overheard Plaintiff
make a threat to a shift supervisor. The deputy operations manager of Coleman Hall, in turn,
sent an email to McLean with documentation summarizing Plaintiff’s infraction. Based on that
email, Thomas arrested Plaintiff, who was discharged from Coleman Hall. Plaintiff attended a
The Board is comprised of Leo Dunn, Edwin Burke, Everette Gillison, Leslie Grey, Theodore Johnson, Mark
Koch, Michael Poettiger, Craig McKay, and Linda Rosenberg.
preliminary hearing, presided over by hearing examiner Schultz,3 to determine whether there was
probable cause that Plaintiff violated his parole by making the threat.
At the hearing, Thomas presented to the examiner the email sent to McLean. According
to the email, the deputy operations manager of Coleman Hall learned, through another staff
member, that Plaintiff made a threatening remark. Plaintiff objected to admission of the email
because it was hearsay, but it was still determined that there was probable cause that Plaintiff
violated his parole.
Plaintiff then requested a parole revocation hearing, which was presided over by Audrey
Donald, a hearing examiner, and Linda Rosenberg, a member of the Board. At the parole
revocation hearing, Thomas again introduced the email over the hearsay objection of Plaintiff,
and McLean testified as to its contents. In light of the evidence, the Board ultimately concluded
that Plaintiff violated his parole and that Plaintiff would be recommitted to prison for the
violation. Plaintiff filed this action under 42 U.S.C. §§ 1983 and 1985, seeking damages and
declaratory relief for various violations of his constitutional rights. All defendants except
McLean have moved to dismiss Plaintiff’s Second Amended Complaint for failure to state a
To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
complaint may not contain just “labels and conclusions,” for “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In determining the
No party has identified Schultz’s first name.
McLean was not served with the Complaint until December 19, 2017.
adequacy of a complaint, a court must “accept all factual allegations as true [and] construe the
complaint in the light most favorable to plaintiff.” Warren. Gen. Hosp. v. Amgen, Inc., 643 F.3d
77, 84 (3d Cir. 2011). Further, “[t]he obligation to liberally construe a pro se litigant’s pleadings
is well-established.” Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011).
Although a “court ruling on a motion to dismiss may not consider matters extraneous to
the pleadings,” documents that are “integral to or explicitly relied upon in the complaint” may be
looked at during the 12(b)(6) stage without converting the motion to dismiss into one for
summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997); see also In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999).
Thus, because Plaintiff has attached various exhibits related to his parole proceedings in support
of his civil rights claims, these documents may be considered.
In asserting a Section 1983 claim, a plaintiff must plead that he was deprived of a federal
constitutional or statutory right by a defendant acting under color of state law. Elmore v. Cleary,
399 F.3d 279, 281 (3d Cir. 2005). Suing Defendants in their personal and official capacities,
Plaintiff principally bases his Section 1983 claims on deprivation of due process and equal
protection, violation of the Eighth Amendment’s prohibition on cruel and unusual punishment,
and unconstitutional false arrest. Defendants do not dispute that they were acting under color of
state law during the relevant times.
a. Due Process Claims Against Defendants
Claiming violations of procedural due process, Plaintiff alleges that various Defendants
are liable under Section 1983 for two reasons: (a) the sixteen Defendants improperly revoked his
parole by introducing and considering hearsay evidence at his parole revocation hearing; and (b)
the Board failed to take a constitutional oath of office before revoking his parole.
The favorable termination rule bars all of Plaintiff’s due process claims. Under the
favorable termination rule, a Section 1983 claim may not be used to challenge “the fact or
duration” of a plaintiff’s confinement. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.
2006) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). More specifically, “a harm
caused by actions whose unlawfulness would render a conviction or sentence invalid” is not
cognizable under Section 1983 unless that conviction or sentence was “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such a
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). If the success of Plaintiff’s Section 1983 claim
necessarily requires a finding regarding the “invalidity of the Parole Board’s decision to revoke
his parole,” the claim fails. Williams, 453 F.3d at 177. Plaintiff’s “sole federal remedy is a writ
of habeas corpus,” not a Section 1983 claim. See id.
First, Plaintiff’s Section 1983 claim regarding the use of hearsay evidence fails because it
would “necessarily demonstrate the invalidity of the Parole Board’s decision to revoke his
parole.” Id. Plaintiff alleges that Defendants violated his due process rights by introducing and
considering impermissible hearsay at his parole revocation hearing, which resulted in him being
returned to jail. Plaintiff does not allege that the Board’s decision has been favorably terminated
or rendered invalid.5 See Curry v. Yachera, 835 F.3d 373, 378-79 (3d Cir. 2016) (holding that
plaintiff’s failure to allege that his conviction was declared invalid warranted dismissal of his
Section 1983 claim); see also Brown v. City of Phila., 339 Fed. App’x 143, 145 (3d Cir. 2009)
Indeed, Plaintiff acknowledges that he has filed grievances with agencies and a state court but has not received a
decision as to the validity of the parole revocation yet.
(noting that a Section 1983 claim “based on an allegedly unconstitutional conviction or sentence
does not accrue until the invalidation of that conviction or sentence.”). Plaintiff’s Section 1983
claim therefore improperly challenges the fact of his confinement based on allegedly defective
parole revocation procedures, when the proper vehicle is a petition for writ of habeas corpus.
Williams, 453 F.3d at 177; see also Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997)
(“Few things implicate the validity of continued confinement more directly than the allegedly
improper denial of parole.”). Accordingly, Plaintiff may not attack the introduction of hearsay
evidence at his revocation hearing nor the decision to revoke his parole “via a § 1983 action.”
See Williams, 453 F.3d at 177.
Second, as to the Board’s failure to take a constitutional oath of office, that claim shall
also be dismissed under the favorable termination rule. Plaintiff claims that the Board violated
his due process rights by failing to take such an oath that was “filed in the office of the Secretary
of the Commonwealth” before revoking his parole for the second time. See 71 P.S. § 78.
Plaintiff’s due process claim again fails because it challenges the fact of his confinement and
contends that the Board’s alleged failure to take an oath deprives it of authority to revoke his
parole. See Williams, 453 F.3d at 177.
All of Plaintiff’s due process claims under Section 1983 regarding the parole revocation
proceedings shall be denied without prejudice to refiling if his parole revocation is ultimately
invalidated. See Brown, 339 Fed. App’x at 145-46 (3d Cir. 2009) (holding that a Section 1983
claim dismissed under the favorable termination rule should be done without prejudice).
Plaintiff will not otherwise be given leave to amend these claims.6
Plaintiff has also pressed an Equal Protection claim under Section 1983 against all seventeen Defendants. U.S.
Const. amend. XIV, § 1. According to Plaintiff, he was subject to more stringent parole conditions than other
parolees because of his status as a sex offender. Defendants have not challenged whether the claim is adequately
pleaded. Neither have they raised an immunity defense. Accordingly, the claim remains in the Complaint.
b. Remaining Claims Against Thomas
Plaintiff presses two additional types of Section 1983 claims against Thomas, his parole
officer, asserting that Thomas is liable for (a) imposing cruel and unusual punishment upon him
in violation of the Eighth Amendment; and (b) arresting him without probable cause.7
i. Eighth Amendment Claim
Plaintiff’s Section 1983 claim as predicated upon the Eighth Amendment fails because he
does not plead a sufficiently serious deprivation. “The Eighth Amendment prohibits any
punishment which violates civilized standards of humanity and decency.” Griffin v. Vaughn, 112
F.3d 703, 709 (3d Cir. 1997). This is an objective standard. Farmer v. Brennan, 511 U.S. 825,
834 (1994). An Eighth Amendment claim here “requires an allegation that the prisoner has been
denied ‘basic human needs, such as food, clothing, shelter, sanitation, medical care and personal
safety’ from physical assault.” See Thomas v. Rosemeyer, 199 Fed. App’x 195, 198 (3d Cir.
2006) (quoting Griffin, 112 F.3d at 709)).
Plaintiff fails to plead any denial of “life’s necessities,” such as “food, clothing, shelter,
sanitation, medical care and personal safety.” Griffin, 112 F.3d at 709. Instead, his allegations
pertain to: (1) Thomas’s refusal to transfer Plaintiff to a separate facility closer to home, where
his family and friends reside; (2) Thomas’s requirement that Plaintiff enroll in the GEO
workforce program as opposed to a program of Plaintiff’s choosing; and (3) Thomas’s refusal to
allow Plaintiff to spend time with his family, including Plaintiff’s ailing mother. None of these
alleged actions are legally sufficient to support an Eighth Amendment violation. See id.; see also
Johnson v. Mondrosch, 586 Fed. App’x 871, 874 (3d Cir. 2014) (“Restrictions to a particular
community, job, or home, as well as restrictions on travel or movement, are standard conditions
Plaintiff also asserts a conspiracy claim under 42 U.S.C. § 1985(3) against Thomas, which has not been challenged
by Thomas in his motion to dismiss.
of parole.”). Plaintiff’s Section 1983 claim premised upon Eighth Amendment violations shall
therefore be dismissed with prejudice.
ii. False Arrest Claim
Although styled as a procedural due process claim under Section 1983, Plaintiff’s claim
against Thomas for arresting him without probable cause shall be construed as a constitutional
false arrest claim. See Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir. 1978). A false arrest claim
requires an arrest made without probable cause. Brown v. Makofka, 644 Fed. App’x 139, 143
(3d Cir. 2016) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)).
“Probable cause exists if there is a ‘fair probability’ that the person committed the crime at
issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). The relevant inquiry for probable
cause is not whether the person arrested actually committed the offense, “but whether the
arresting officers had probable cause to believe the person arrested had committed the offense.”
Groman, 47 F.3d at 635 (internal quotation marks omitted). “[P]robable cause may rest upon
hearsay, provided there exists ‘a substantial basis for crediting the hearsay.’” Torres v. City of
Phila., 673 Fed App’x 233, 236 n.3 (3d Cir. 2016) (quoting United States v. Ventresca, 380 U.S.
102, 108 (1965)); see also Gov’t of V.I. in Interest of A.M., 34 F.3d 153, 161 (3d Cir. 1994) (“[I]t
is constitutional to rely on hearsay to establish probable cause for an arrest.”).8
Here, a review of the allegations of the Complaint and the relevant attached exhibits,
suggests persuasively that Thomas had a substantial basis to credit the hearsay. Thomas relied
on an email from his supervisor, McLean, which included an official form from the Pennsylvania
Although parole officers in Pennsylvania can arrest parolees without a warrant for violations of their parole, the
law is unclear as to “whether a parole officer must have probable cause to arrest a parolee for parole violations, or
whether a less demanding standard applies.” See United States v. Noble, 326 Fed. App’x 125, 127 (3d Cir. 2009).
Thomas does not assert that a less demanding standard applies, but contends that he had probable cause for
Department of Corrections titled Resident Infraction Report. According to the Report, an
unidentified employee at Coleman Hall overheard Plaintiff make a threat towards a shift
supervisor at Coleman Hall. The unidentified employee reported this to the deputy operations
manager of Coleman Hall, who signed the Report on the same day Plaintiff made the threat. The
Report includes the specific language used by Plaintiff in making the threat, as well as the
particular date and time of the circumstances that led Plaintiff to make the threat. Although
Thomas learned of Plaintiff’s threat through at least two levels of hearsay,9 the level of detail in
the Report suggests that it is sufficiently reliable, which furnished Thomas probable cause to
arrest Plaintiff. Cf. United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009) (holding that
statements introduced at parole revocation hearing that contained layers of hearsay were
unreliable because, among other things, they were unsworn and lacked detail). Plaintiff’s
unconstitutional false arrest claim shall therefore be dismissed with prejudice.
c. Remaining Claims Against McLaughlin
Plaintiff asserts two supervisory liability claims under Section 1983 against McLaughlin,
Thomas’s parole supervisor. Plaintiff claims that McLaughlin is liable because she (a) permitted
Thomas to falsely arrest Plaintiff upon his second parole violation and (b) ignored Plaintiff’s
requests for assistance regarding his treatment at Coleman Hall and by Thomas. Supervisors
may be personally liable under a Section 1983 claim if they “participated in violating the
plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in [their] subordinates’ violations.” A.M. v. Luzerne Cty. Juvenile Det. Ctr., 372
F.3d 572, 586 (3d Cir. 2004).
The two levels of hearsay are (1) what the unidentified employee overheard and (2) what the unidentified
employee informed the deputy operations manager.
Both supervisory liability claims shall be dismissed because Plaintiff has failed to plead
the violation of an underlying constitutional right. As to Plaintiff’s supervisory liability claim
based on his false arrest, it shall be dismissed because, as noted above, there was probable cause
to arrest Plaintiff. Thomas relied on credible hearsay in arresting Plaintiff. As with Plaintiff’s
unconstitutional false arrest claim against Thomas, Plaintiff’s supervisory liability claim against
McLaughlin shall be dismissed with prejudice. As to Plaintiff’s supervisory liability claim based
on McLaughlin’s purported avoidance of his complaints about Thomas, Plaintiff has not
identified any Eighth Amendment violation based on Thomas’s conduct. Thus, McLaughlin
could not have directed Thomas to violate Plaintiff’s Eighth Amendment rights or otherwise
participated in any Eighth Amendment violations. This claim shall also be dismissed with
d. Remaining Claim Against Tinsman
Plaintiff claims that Tinsman, Thomas’s parole supervisor, should be liable under Section
1983 on a supervisory theory of liability for authorizing Plaintiff’s false arrest. As with
Plaintiff’s claim against McLaughlin, the claim against Tinsman fails because Thomas, as
supervisee, had probable cause to arrest Plaintiff. The claim shall therefore be dismissed with
e. Remaining Claim Against Donald, Rosenberg, Koch, and Schultz
Plaintiff asserts a Section 1983 claim against Donald, Rosenberg, Koch, and Schultz for
various constitutional violations in their decision to revoke his parole. However, absolute
immunity and Eleventh Amendment immunity bar such a claim against them in their personal
and official capacities, respectively.10
As to the claim against them in their personal capacity, “probation and parole officers are
entitled to absolute immunity when they are engaged in adjudicatory duties.” Wilson v.
Rackmill, 878 F.2d 772, 775 (3d Cir. 1989). For a claim to be dismissed under the absolute
immunity defense at the motion to dismiss stage, “the allegations of [the] complaint must
indicate the existence of absolute immunity as an affirmative defense.” Id. The defense “must
clearly appear on the face of the complaint.” Id.
On their face, Plaintiff’s allegations against Donald, Rosenberg, Koch, and Schultz
implicate adjudicatory duties. Donald and Schultz were Plaintiff’s hearing examiners, and
Rosenberg and Koch were members of the Board at the time of his second revocation. Plaintiff
avers that they abused their discretion by revoking his parole twice. Any abuse of discretion
would, thus, be related to their adjudicatory functions in deciding whether to revoke Plaintiff’s
parole. See McGraw v. Wetzel, 2016 WL 3538601, at *6 (E.D. Pa. June 29, 2016) (“[T]he Parole
Board Defendant’s refusal to grant parole is an adjudicatory function deserving of absolute
immunity . . .”). Thus, absolute immunity bars Plaintiff’s Section 1983 claim against these
Defendants in their personal capacity.
Eleventh Amendment immunity, which provides that states are immune from suit by
private parties in federal court, shields the Defendants here in their official capacities. See
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). “Individual state employees sued in their
official capacity are also entitled to Eleventh Amendment immunity.” Betts v. New Castle Youth
Although the four Defendants here have not raised Eleventh Amendment immunity, this Court does so sua sponte
due to the jurisdictional nature of the immunity. See Sullivan v. Barnett, 139 F.3d 158, 179 (3d Cir. 1998),
overruled on other grounds by Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Bryant v. Allegheny Cty.
Domestic Relations Section, 2011 WL 5326051, at *2 n.2 (W.D. Pa. Nov. 3, 2011).
Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010). The Eleventh Amendment protects a state and its
state officials from a federal suit unless: (1) Congress has abrogated the state’s immunity; (2) the
state has waived its own immunity; or (3) the plaintiff sues against an individual state officer for
prospective relief to end an ongoing violation of federal law. See MCI Telecomm. Corp. v. Bell
Atl. Pa., 271 F.3d 491, 503 (3d Cir. 2001).
None of these exceptions applies. First, Section 1983 does not abrogate a state’s
Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). Second,
the Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity. See
Lavia v. Pa. Dep’t of Corrections, 224 F.3d 190, 195 (3d Cir. 2000); 42 Pa. Cons. Stat. Ann. §
8521(b). And third, Plaintiff does not seek prospective relief to end any ongoing violation of
federal law in his complaint. Thus, Eleventh Amendment immunity bars Plaintiff’s Section 1983
claims against Donald, Rosenberg, Koch, and Schultz in their official capacity.11 See Goodman
v. McVey, 428 Fed. App’x 125, 127 (3d Cir. 2011) (affirming dismissal of Section 1983 suit
against Pennsylvania Board of Probation and Parole because of, among other things, Eleventh
Amendment immunity); Foster v. McLaughlin, 203 F. Supp. 3d 483, 487-88 (E.D. Pa. 2016)
(holding that Eleventh Amendment immunity barred Section 1983 claim against member of
Pennsylvania Board of Probation and Parole). In sum, the Section 1983 claim against Donald,
Rosenberg, Koch, and Schultz in their personal and official capacities shall be dismissed with
Plaintiff contends that Donald, Rosenberg, Koch, and Schultz are not entitled to Eleventh Amendment immunity
because of their alleged failure to take a constitutional oath of office as required under 71 P.S. § 78. But the relevant
factors for deciding whether Eleventh Amendment immunity applies do not turn on taking such an oath. See
Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016).
f. Remaining Claim Against the Board
Lastly, Plaintiff claims that the Board members are liable as supervisors under Section
1983 for unlawfully revoking his first parole and abusing its discretion by not yet considering his
pending administrative appeal for the second revocation of his parole.
Assuming without deciding that the Board members could be categorized as supervisors
in this instance, Plaintiff’s supervisory liability claim against them shall be dismissed without
prejudice because he fails to “identify the specific supervisory practice or procedure that the
supervisor[s] failed to employ.”12 Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).
In particular, Plaintiff fails to plead what protocol the members failed to follow in revoking his
first parole or by abusing its discretion by not yet considering his administrative appeal. See id.
Instead, Plaintiff merely pleads, in conclusory terms, that the Board was the “moving force”
behind the alleged misconduct. This bare label is insufficient at the motion to dismiss stage.
Plaintiff shall be given leave to amend to plead the requisite supervisory practice or procedure
that the Board failed to use.13
An appropriate order follows.
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
The elements of a supervisory claim require showing that “the existing custom and practice without the identified,
absent custom or procedure, created an unreasonable risk of the ultimate injury”; “the supervisor was aware that this
unreasonable risk existed”; “the supervisor was indifferent to the risk”; and “the underling’s violation resulted from
the supervisor’s failure to employ that supervisory practice or procedure.” Brown, 269 F.3d at 216.
Curiously, the Board members do not address whether qualified or absolute immunity shields them from lability
for this claim. See Williams, 453 F.3d at 178; Donaldson v. Mugavero, 126 Fed. App’x 63, 65 (3d Cir. 2005).
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