SMALL v. JOHNSON et al

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY DISTRICT JUDGE NITZA I QUINONES ALEJANDRO ON 6/3/2024. 6/3/2024 ENTERED AND COPIES E-MAILED. MAILED TO PRO SE.(sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ELWOOD SMALL
Plaintiff
v.
THEODORE W. JOHNSON, et al.
Defendants

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CIVIL ACTION
NO. 23-CV-4809

MEMORANDUM
NITZA I. QUIÑONES ALEJANDRO, J.

JUNE 3, 2024

Elwood Small, a prisoner convicted of second degree murder and currently serving a life
sentence at SCI Phoenix, has filed this civil rights Complaint seeking (1) declaratory relief that, at
the time his offenses occurred, the Pennsylvania statute imposing a life sentence for second degree
murder was unconstitutionally vague, and (2) injunctive relief prohibiting the Defendants – all
officials with the Pennsylvania Parole Board – from denying him future parole eligibility.
Presently before the Court is the Defendants’ Motion to Dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). 1 Because at its core, Small’s constitutional claim would
necessarily imply the invalidity of his criminal sentence, his claim is not cognizable in a civil rights
action. Accordingly, this Court will grant Defendants’ Motion and the case will be dismissed
without prejudice.
I.

FACTUAL ALLEGATIONS 2

Small filed a Response to the Motion, which he styled as a “Motion in Opposition.” (ECF No.
18.) In the Order that accompanies this Memorandum, the Clerk of Court will be directed to reclassify
Small’s “Motion in Opposition” as a “Response” to the Defendants’ Motion to Dismiss and terminate
Small’s Motion.
1

2

The facts set forth in this section of the Memorandum are taken from Small’s Complaint
(ECF No. 2). The Court adopts the pagination assigned to the Complaint by the CM/ECF
docketing system.

Small was convicted of second-degree murder on April 13, 1983 in the Court of Common
Pleas of Philadelphia County. (Compl. at 7.) He was sentenced on November 9, 1983 to life
imprisonment on his conviction. 3 (Id.) On August 15, 2023, in response to an application for
parole he sent to the Pennsylvania Parole Board, he was informed “[u]pon review of your
application and the Department of Corrections records of your sentencing, it appears that you are
serving a life sentence and are therefore not eligible for parole consideration based on 61 Pa.C.S.
§ 6137(a).” (Id. at 8.)
Small has named as Defendants Theodore W. Johnson, the Chairman of the Pennsylvania
Parole Board, any and all John and Jane Doe members of the Parole Board, its agents and
successors who are personally responsible for the denial of parole to Small, and for the
enforcement of 61 Pa. Cons. Stat. § 6137(a) in the denial of parole to Small. (Compl. at 17.) All
Defendants are named in their individual and official capacities. Small asserts that, at the time he
committed his offenses, the Pennsylvania criminal statutes used to impose a life sentence without
parole upon him for second-degree murder, namely 42 Pa. Cons. Stat. 9756(c), 4 18 Pa. Cons. Stat.

A review of state court records confirms that Small was found guilty on November 9, 1983 of
second-degree murder, aggravated assault, simple assault, robbery, and criminal conspiracy.
Commonwealth v. Small, CP-51-CR-0521601-1982 (C.P. Philadelphia). He received a life sentence for the
murder conviction, plus a 5-10 year sentence on the other charges. Id. The procedural history of Small’s
numerous petitions filed pursuant to the Pennsylvania Post Conviction Relief Act, is recounted by the
Pennsylvania Supreme Court in Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).
Small has also filed prior petitions seeking habeas corpus relief in this Court. See Small v. Sorbia,
No. 21-604 (E.D. Pa.), ECF No. 20 (report and recommendation setting forth Small’s history of seeking
habeas corpus relief and recommending that the pending petition be denied as a second or successive
petition pursuant to 28 U.S.C. § 2244(b)(3)(A)); see also id., ECF No. 26 (Order adopting report and
recommendation that habeas petition be dismissed without an evidentiary hearing).
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In 1983, when Small was convicted and sentenced, § 9756 read:

(a) General rule.-- In imposing a sentence of total confinement the court shall at the time of
sentencing specify any maximum period up to the limit authorized by law and whether the sentence
shall commence in a correctional or other appropriate institution.

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1102(b), 5 and 61 P.S. § 331.21 (now 61 Pa. Cons. Stat. 6137(a)), 6 when read together are
unconstitutionally vague. (Compl. at 5.)
II.

DEFENANTS’ MOTION, SMALL’S RESPONSE, AND DEFENDANTS’ REPLY
In their Motion, Defendants argue that because Small seeks relief that would, in effect,

challenge the validity of his sentence, his claim is barred by Heck v. Humphrey, 512 U.S. 477, 487

(b) Minimum sentence.--The court shall impose a minimum sentence of confinement
which shall not exceed one-half of the maximum sentence imposed.
(c) Prohibition of parole.--Except in the case of murder of the first degree, the court may
impose a sentence to imprisonment without the right to parole only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or both, in which case
the sentence shall specify the number of days to be served; and
(3) the maximum term or terms of imprisonment imposed on one or more
indictments to run consecutively or concurrently total less than 30 days.
42 Pa. Stat. and Cons. Stat. Ann. § 9756 (effective to August 20, 2000).
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In 1983, Section 1102(b) read:

(b) Second degree.-- Except as provided under section 1102.1, a person who has been
convicted of murder of the second degree, of second degree murder of an unborn child or
of second degree murder of a law enforcement officer shall be sentenced to a term of life
imprisonment.
18 Pa. Cons. Stat. Ann. § 1102(b) (effective to December 15, 2008).
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In 1983, Section 331.21, the predecessor to § 6137(a), read:

The board is hereby authorized to release on parole any convict confined in any penal
institution of this Commonwealth as to whom power to parole is herein granted to said
board, except convicts condemned to death or serving life imprisonment, whenever in its
opinion the best interests of the convict justify or require his being paroled and it does not
appear that the interests of the Commonwealth will be injured thereby. The power to
parole herein granted to the Board of Parole may not be exercised in the board's
discretion at any time before, but only after, the expiration of the minimum term of
imprisonment fixed by the court in its sentence or by the Pardon Board in a sentence
which has been reduced by commutation. . . .
61 P.S. § 331.21 (superseded 2009; emphasis added).

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(1984). 7 They assert that in Small’s case the Pennsylvania criminal sentencing and parole statutes
“work together to supply a sentence of life imprisonment without parole, with parole ineligibility
a part of the sentence itself.” (Def. Mem. at 3.) They argue that Small’s claim challenging his
criminal sentencing statute, 61 Pa. Const. Stat. § 6137(a) as unconstitutionally vague, if successful
“would, effectively, invalidate his criminal sentence as the parole code and crime code work in
tandem to provide [Small’s] ‘sentencing scheme’[,] which currently makes him ineligible for
parole by operation of . . . § 6137(a).” (Id. at 4-5.) Thus, they conclude, his claim is barred by
Heck and must be dismissed.
In response, Small argues that his due process rights are being violated because the
Pennsylvania sentencing statutes noted above, when read together to deny him the possibility of
parole, are unconstitutionally vague. (Pl. Resp. Mem. at 1-2.) He asserts that he is not challenging
his conviction and sentence and, thus, the bar of Heck does not apply. (Id. at 5.) In his Complaint,
Small contends, he did not assert that any of the three sentencing statutes, by themselves, are
unconstitutionally vague; rather his claim is that they are defective when they are read together.
(Id. at 6.) He reiterates that he seeks only prospective injunctive relief prohibiting the Defendants
from denying him future parole eligibility and does not challenge the legality of his conviction or
the validity of his sentence. (Id. at 6-7.) He argues that Heck does not bar his claim because, were
he to prevail, he “would still be serving a life sentence, and the Pennsylvania Parole Board would
still retain discretion regarding whether or not to grant parole.” (Id. at 7.) He argues that suits that
seek to declare invalid parole procedures that deny eligibility may be brought under § 1983 since

In Heck, the United States Supreme Court held that a prisoner may not pursue a § 1983 action
which necessarily impugns the validity of the conviction or duration of sentence, unless “the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” 512 U.S. at 486-87.
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such claims would not necessarily spell speedier release from custody. (Id. (citing Wilkerson v.
Dotson, 433 U.S. 74, 81-82 (2005) (holding that a state prisoner’s § 1983 action is barred (absent
prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target
of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) —
if success in that action would necessarily demonstrate the invalidity of confinement or its
duration); Skinner v. Switzer, 562 U.S. 521, 532–33 (2011) (holding that although a state court
decision is not reviewable by lower federal courts, a statute or rule governing that decision may be
challenged in an independent federal action because it is not subject to the Rooker/Feldman
doctrine).)
In reply, the Defendants reiterate that Small’s claim is barred by Heck because he is raising
a challenge to the length of his sentence. They assert that the holding of Wilkerson does not apply
because that case involved an attack on administrative procedures used to determine parole
eligibility, which is distinct from an attack on the length of confinement imposed by a sentencing
judge. (Def. Reply Mem. at 2-3.)
III.

STANDARD OF REVIEW
“A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint.”

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss under Rule
12(b)(6), the Court must determine whether the complaint contains “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 claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) “Although the
plausibility standard does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted).
In resolving a Rule 12(b)(6) motion, “a court must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as undisputedly authentic documents
if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010). To determine whether a complaint filed by a pro se litigant states a claim, a
court must accept the facts alleged as true, draw all reasonable inferences in favor of the plaintiff,
and “ask only whether that complaint, liberally construed contains facts sufficient to state a
plausible . . . claim.” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (cleaned up); see
also Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (pro se filings are construed liberally).
III.

DISCUSSION
A.

Pennsylvania’s Sentencing Scheme for Second-Degree Murder

In Hudson v. Pennsylvania Bd. of Prob. & Parole, 204 A.3d 392 (Pa. 2019), the
Pennsylvania Supreme Court, after first noting that “[r]elease on parole is ‘a matter of grace and
mercy shown to a prisoner who has demonstrated to the Parole Board’s satisfaction his future
ability to function as a law-abiding member of society upon release before the expiration of the
prisoner’s maximum sentence,” id. at 313-14 (quoting Rogers v. PBPP, 724 A.2d 319, 322-23 (Pa.
1999), went on to examine how a prisoner’s maximum sentence and minimum sentence, if any,
imposed under the Pennsylvania second-degree murder statute determined his eligibility for
parole. The Court stated that “the actual sentence of a prisoner subject to total confinement is his
maximum sentence, and his minimum sentence merely sets the time after which he is eligible to

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serve the remainder of his sentence on parole.” Id. at 314. Thus, “the court must, as a general
rule, state a minimum sentence of confinement no greater than one-half of the maximum sentence.
. . . When a defendant is convicted of second-degree murder, the court is required to impose total
confinement for life.” Id. (citing 18 Pa. Cons. Stat. § 1102(b) (providing that, with some exception
not applicable there nor to Small, a person convicted of second-degree murder “shall be sentenced
to a term of life imprisonment”).). Hudson argued that his life sentence for second-degree murder
was “a maximum sentence that should be imposed together with a minimum sentence. Since no
minimum sentence for second-degree murder was stated in his sentencing order, [Hudson]
suggests that . . . a minimum sentence of one day should be presumed and retroactively applied to
him.” Id. (internal citation omitted).
The Pennsylvania Supreme Court rejected this assertion. First, it held that Hudson’s life
sentence for second-degree murder “is qualitatively different in that it expires when the prisoner
dies, not after a specified number of years.” Id. at 315. The “one-half” rule for minimum sentence
thus could not apply because it would be impossible to execute since a “sentencing court cannot
know, at the time of sentencing, the number of years the defendant will continue to live.” Id. at
316. Thus, the Court concluded that “the Legislature did not intend for Section 9756(b)’s
minimum-sentence provision to apply to mandatory life sentences for second-degree murder.” Id.
at 317.
The Court went on to address whether there were any other statutory provisions upon which
to conclude that a minimum parole date can or should attach to a life sentence for second-degree
murder. It rejected Hudson’s reliance upon another statute, 42 Pa. Cons. Stat. § 9756(c) – the same
statute invoked by Small – providing a list of specific minor offenses that, in addition to firstdegree murder, are not eligible for parole. Id. While acknowledging that the language of § 9756(c)

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could lend itself to a conclusion that it provided an exhaustive list of parole-ineligible offenses,
the Court also acknowledged “[a]t the same time, however, and as developed above, the sole
statutory directive for courts in imposing a minimum term of total confinement does not apply to
mandatory life sentences.” Id. at 318. Returning to the concept that release on parole is a matter
of grace and mercy, the Court agreed “with the fundamental premise . . . that Section 9765 was
never intended specifically to create a personal right to be reviewed for parole.” Id. at 318-19.
The Court thus concluded that Hudson, having been sentenced to life imprisonment for seconddegree murder “lack[ed] any legal right to parole eligibility.” Id. at 319.
Finally, the Court also recognized that the Pennsylvania Parole Board, as an administrative
agency of the Commonwealth, “can only exercise those powers which have been conferred upon
it by the Legislature in clear and unmistakable language.” Id. at 319 (citing Aetna Cas. & Sur. Co.
v. Ins. Dep’t, 638 A.2d 194, 200 (Pa 1994) (other citations omitted)). Moreover, under the parole
statute (the same one upon which Small now seeks to rely), 61 Pa. Cons. Stat. § 6137(a)(1), the
Board may “release on parole any inmate to whom the power to parole is granted to the board by
this chapter, except an inmate condemned to death or serving life imprisonment.” Id. (emphasis
in original). Because, at bottom, “[t]here is no statutory authorization for the Board to grant parole
to an individual sentenced to a mandatory life term,” the Court concluded that the Board lacked
the power to release on parole an inmate serving a mandatory life sentence for second-degree
murder. Id. (citing Commonwealth v. Brenizer, 384 A.2d 1218, 1221 (Pa. 1978).
B.

Small’s § 1983 Claim is barred by Heck

With this understanding of Pennsylvania statutory provisions governing the sentencing of
those who commit second-degree murder in mind, it is clear that Small’s “void for vagueness”
claim attacking the Board’s decision that he is ineligible for parole is actually a habeas corpus

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claim and any attempt to assert it under the guise of § 1983 is barred by Heck because his sentence
has not been previously invalidated. “[W]hen a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled
to immediate release or a speedier release from that imprisonment, his sole federal remedy is a
writ of habeas corpus.” Preiser, 411 U.S. at 500 (emphasis added). As the United States Supreme
Court has stated, “[c]hallenges to the validity of any confinement or to particulars affecting its
duration are the province of habeas corpus; requests for relief turning on circumstances of
confinement may be presented in a § 1983 action.” Muhammad v. Close, 540 U.S. 749, 750 (2004)
(per curiam) (emphasis added, internal citations omitted).
In Wilkinson, the Supreme Court provided this helpful synopsis:
Throughout the legal journey from Preiser to [Edwards v. Balisok, 520 U.S. 641
(1997)], the Court has focused on the need to ensure that state prisoners use only
habeas corpus (or similar state) remedies when they seek to invalidate the duration
of their confinement — either directly through an injunction compelling speedier
release or indirectly through a judicial determination that necessarily implies the
unlawfulness of the State’s custody. Thus, Preiser found an implied exception to
§ 1983’s coverage where the claim seeks — not where it simply “relates to” —
“core” habeas corpus relief, i.e., where a state prisoner requests present or future
release. Wolff [v. McDonnell, 418 U.S. 539 (1974)] makes clear that § 1983
remains available for procedural challenges where success in the action would not
necessarily spell immediate or speedier release for the prisoner. . . . These cases,
taken together, indicate that a state prisoner’s § 1983 action is barred [by Heck]
(absent prior invalidation) — no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner’s suit (state conduct leading to conviction
or internal prison proceedings) — if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.
544 U.S. 74, 81-82 (2005) (emphasis in original, internal citations omitted).
“When read together, there is a logical and coherent progression of Supreme Court
jurisprudence clarifying when § 1983 is unavailable: whenever the challenge ultimately attacks
the ‘core of habeas’ — the validity of the continued conviction or the fact or length of the sentence
— a challenge, however denominated and regardless of the relief sought, must be brought by way

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of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such
that a finding in plaintiff’s favor would not alter his sentence or undo his conviction, an action
under § 1983 is appropriate.” Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). Thus, the
holding of Preiser requires a prisoner who is asserting that his sentence is unconstitutional and he
is therefore entitled to earlier or immediate release to raise that issue in a habeas corpus
proceeding. 8
While challenges to the constitutionality of parole procedures that, if successful, would
result in eligibility for parole or a parole hearing are not core habeas claims, Wilkinson, 544 U.S.
at 82, that is not this case. Small does not challenge a parole procedure. He challenges the
constitutionality of his sentence under the Commonwealth’s criminal statutes, and is, accordingly
pursuing a claim that necessarily implies the invalidity of his sentence. This means that Small
cannot pursue his request for a declaration that he is entitled to parole eligibility in a civil rights
action such as this one since success in this action would necessarily demonstrate the invalidity of
the duration of his confinement. Heck, 512 U.S. at 487; Wilkinson, 544 U.S. at 82. Accordingly,
Small’s claims seeking injunctive and declaratory relief that he can be eligible for parole in the
future will be dismissed without prejudice. Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016)

Notably, courts that have addressed the type of issue Small seeks to raise here, namely that the
state sentencing statute is unconstitutionally vague, do so in the context of habeas corpus proceedings after
exhaustion of available state court remedies. See, e.g., Martinez v. Stridiron, 538 F. App’x 184, 185 (3d
Cir. 2013) (“Martinez now appeals the denial of his habeas petition, contending that . . . the Virgin Islands
sentencing provision for second-degree murder is unconstitutionally vague.”); Robinson v. Beard, 762 F.3d
316, 320 (3d Cir. 2014) (affirming denial of habeas corpus petition asserting the Commonwealth’s capital
sentencing statute was vague and overbroad); Flamer v. Delaware, 68 F.3d 736, 739 (3d Cir. 1995) (en
banc affirmance of two appeals from orders of the United States District Court for the District of Delaware
that denied habeas corpus petitions filed by two state prisoners asserting sentencing statute was vague).
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(stating that claims barred by Heck must be without prejudice to reassertion in the event the
litigant’s conviction and/or sentence are invalidated).
An appropriate Order follows.

NITZA I. QUIÑONES ALEJANDRO, J.

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