WALKER v. MEISEL et al
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 10/14/11. 10/19/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRUCE WALKER
v.
DALE A. MEISEL and
LEHIGH COUNTY PRISON
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CIVIL ACTION
NO. 09-6136
MEMORANDUM AND ORDER
ELIZABETH T. HEY, M.J.
October 14, 2011
In this action brought pursuant to 42 U.S.C § 1983, pro se Plaintiff Bruce Walker
(“Plaintiff”) seeks monetary damages against Defendants Dale A. Meisel and Lehigh
County Prison (collectively “Defendants”) for unlawful confinement in violation of his
due process rights because Defendants failed to award him time credit to his prison
sentence while he was on parole in an inpatient drug rehabilitation program. Presently
before the court is Defendants’ motion for summary judgment (Doc. 20). For the reasons
set forth herein, I will grant the motion and enter judgment for Defendants.1
I.
FACTS AND PROCEDURAL HISTORY
The facts are taken from Plaintiff’s original complaint and brief (Doc. 3),
Plaintiff’s brief construed as an amended complaint (Doc. 17), Petitioner’s criminal
docket in the Court of Common Pleas of Lehigh County (CP-39-CR-0001019-1996)
(“Lehigh Co. Docket”), and a Report and Recommendation filed by the Honorable Henry
Perkin, United States Magistrate Judge for the Eastern District of Pennsylvania, in
1
The Honorable William H. Yohn, Jr., referred the matter to me upon the consent
of the parties. See Docs. 14 & 15.
Plaintiff’s prior Petition for Writ of Habeas Corpus. See Walker v. Meisel, No. 09-3644
(E.D. Pa. May 17, 2010) (Perkin, M.J.) (“Habeas R&R”).
On October 1, 1996, Plaintiff entered a plea of nolo contendere to simple assault
before the Honorable Edward D. Reibman of Lehigh County, who then sentenced
Petitioner to a term of imprisonment of not less than time served and not more than one
day less than two years. See Lehigh Co. Docket 10/01/1996 (Entry 9). In addition, Judge
Reibman sentenced Plaintiff to pay the costs of prosecution and restitution, and instructed
that he be given credit for time spent in custody. Id. Plaintiff did not appeal his sentence.
Judge Reibman granted Plaintiff parole effective November 22, 1996. See Lehigh
Co. Docket 11/22/1996. As a condition of parole, Judge Reibman required Plaintiff to
attend an inpatient drug and alcohol rehabilitation program. See id. 10/01/1996 (Entry
10). Plaintiff attended in-patient drug treatment at Keenan House, a drug treatment and
rehabilitation facility located in Allentown, Pennsylvania, for a period of twenty-eight
days from November 22, 1996, through December 20, 1996. See Doc. 3 at 4 (Statement
of Claim).
On June 26, 1997, the Office of Lehigh County Probation and Parole filed
allegations of parole violations against Plaintiff. Petitioner failed to appear for his
Gagnon I hearing2 on March 23, 1998, and a bench warrant was issued by Judge
2
“In Gagnon v. Scarpelli, the Supreme Court held that a person accused of
violating the terms of his probation was entitled to two hearings before revocation and
resentencing. The first, a Gagnon I hearing, serves to determine whether there was a
probable cause. . . . The second, a Gagnon II hearing, determines whether the person in
fact violated the terms of his or her probation . . . .” Heilman v. T. W. Ponessa & Ass.,
2
Reibman. See Lehigh Co. Docket 03/23/98. Judge Perkin outlined Plaintiff’s subsequent
state court odyssey as follows:
On February 4, 2002, [Plaintiff] was brought before Judge
Reibman. Following dissolution of the bench warrant, his
Gagnon II hearing was held. The court concluded that [Plaintiff]
violated the conditions of his parole as alleged, and revoked
parole remanding him to Lehigh County Prison to serve the
balance of the sentence imposed on October 1, 1996. [Plaintiff]
was immediately re-paroled to Franklin County.[3] [Plaintiff] was
transferred from Lehigh County Prison to Franklin County Prison
on February 8, 2002.
On October 14, 2002, Lehigh County Parole filed a
petition alleging violations of [Plaintiff’s] parole. . . . [Plaintiff]
was arrested on April 16, 2007 and held in Cambria County
Prison with a detainer from Lehigh County for his parole
violations. On May 21, 2007, [Plaintiff’s] Gagnon II hearing was
held. [Plaintiff] conceded the allegations. Judge Reibman
revoked [Plaintiff’s] parole and remanded him to Lehigh County
Prison to serve the balance of his sentence. [Plaintiff] was
immediately reparoled and ordered to abide by his original
conditions.
On March 10, 2008, another arrest warrant was issued for
violations of parole. The arrest warrant was returned as served
on August 4, 2008 and [Plaintiff’s] Gagnon I hearing was waived
on August 7, 2008. On August 25, 2008, following [Plaintiff’s]
Gagnon II hearing, Judge Reibman concluded that [Plaintiff] had
again violated the conditions of his parole. It was determined
No. 09-1667, 2009 WL 82707, at 1 n.1 (3d Cir. Jan. 14, 2009) (citing Gagnon v.
Scarpelli, 411 U.S. 778, 781-82, 784 (1973)). Gagnon extended the Supreme Court’s
ruling in Morrissey v. Brewer, 408 U.S. 471 (1972), which held that a parolee facing
porole revocation is entitled to due process protections. See Gagnon, 411 U.S. at 782.
3
Plaintiff had previously pled guilty in Franklin County to a charge of driving
under the influence of alcohol and was sentenced on April 3, 2002, to serve “not less than
3 months nor more than 23 months” in Franklin County Prison. See Franklin Co. Docket
CP-28-CR-000043-2002.
3
that [Plaintiff] had failed to report in person at such times and
places as instructed and had changed his approved residence
without permission. [Plaintiff’s] parole was revoked and he was
remanded to Lehigh County Prison to serve the balance of his
sentence. . . .
Habeas R&R at 2-4 (internal footnote omitted); see also Lehigh Co. Docket. In
calculating the remaining balance on Plaintiff’s sentence, Lehigh County Prison did not
give Plaintiff credit for the twenty-eight days he spent in Keenan House while on parole.4
Plaintiff filed two motions to modify or reduce sentence, which were denied by Judge
Reibman by order entered on November 5, 2008, and Petitioner did not appeal. See
Habeas R&R at 4; Lehigh Co. Docket.
On July 15, 2009, Judge Reibman filed a correspondence from Plaintiff which the
state court treated as a petition for writ of habeas corpus. See Habeas R&R at 7; Lehigh
Co. Docket. Plaintiff alleged ineffectiveness of counsel, false testimony from the parole
officer, and erroneous time calculation. On July 30, 2009, Judge Reibman denied
Plaintiff’s request for habeas corpus, noting that Plaintiff sought to raise the same issues
that were addressed by his order entered on November 5, 2008. See Habeas R&R at 8;
Lehigh Co. Docket. Petitioner did not appeal.
4
As noted, Plaintiff’s maximum sentence was one day less than two years, which
equals 729 days. During recalculation, the Lehigh County Prison made the following
findings: Plaintiff was in custody from March 24, 1996 to August 9, 1996 (138 days),
from October 1, 1996 to November 22, 1996 (52 days), from April 18, 2007 to May 21,
2007 (33 days), and from August 2, 2008 to December 21, 2009 (506 days). Thus, the
total time Petitioner spent in custody is 729 days, consistent with Plaintiff’s original
maximum sentence. See Walker v. Meisel, No. 09-3644 (Doc. 14 at 15-16 & Ex. A).
4
On September 14, 2009, Plaintiff filed a federal Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, arguing that he was re-sentenced in violation of his
Double Jeopardy Clause and due process rights, that he was separately denied due process
concerning a notice issue, and ineffective assistance of counsel. See Habeas R&R at 8-9
n.11. On May 17, 2010, Judge Perkin issued a Report and Recommendation in which he
recommended that the petition be dismissed because Plaintiff’s claims were unexhausted.
See id. On June 25, 2010, the Report and Recommendation was adopted without
objection by the late Honorable Thomas H. Golden. See Walker v. Meisel, No. 09-3644
(Doc. 16).
Plaintiff commenced this action by filing a complaint in the Eastern District of
Pennsylvania on December 30, 2009, alleging that the failure to include his twenty-eightday stay in Keenan House in the recalculation of his sentence violated his constitutional
rights. See Doc. 3. By Scheduling Order dated March 18, 2011, I gave Plaintiff fourteen
days to file any amended pleadings. See Doc. 11. Plaintiff subsequently filed a “Brief in
Support of Plaintiff’s Complaint” (Doc. 17), which I construed as an amended complaint
in an Amended Scheduling Order dated June 13, 2011. See Doc. 18. Defendants
answered both the complaint and amended complaint. See Docs. 8 & 19. On August 26,
2011, Defendants filed the present motion for summary judgment (Doc. 20), to which
Plaintiff filed a response (Doc. 21) containing limited argument largely unresponsive to
the motion.
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II.
STANDARD OF REVIEW
A moving party is entitled to summary judgment “if the movant shows that there is
no genuine issue of material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect
the outcome of the case under governing law. Id.
The moving party has the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the
moving party has met its initial burden, the adverse party must set forth specific facts
showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). “Speculation,
conclusory allegations, and mere denials are insufficient to raise genuine issues of
material fact.” Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000).
The evidence presented must be viewed in the light most favorable to the non-moving
party. Anderson, 477 U.S. at 255; Lang v. New York Life Ins. Co., 721 F.2d 118, 119
(3d Cir. 1983).
III.
DISCUSSION
Plaintiff alleges that Defendants refused to credit the time he spent participating in
a drug rehabilitation program at Keenan House to the remaining balance of his prison
sentence, and that Defendants’ refusal to do so amounted to unlawful confinement and a
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violation of Plaintiff’s due process rights. See Doc. 3. Defendants concede that Plaintiff
was not given credit for the twenty-eight days he spent in Keenan House rehabilitation
facility towards his original sentence. See Doc. 8 at 6; Doc. 20 at 6 of 24. In contrast to
Plaintiff’s argument that his freedom was restricted in Keenan House to the point that it
rose to the level of custody, Defendants argue that Plaintiff’s participation in the Keenan
House rehabilitation program does not amount to “confinement” as defined under
Pennsylvania Law. See Doc. 20 at 6 of 24 (citing 42 Pa. C.S.A. § 9760(1)). Defendants
assert that because Plaintiff was not legally entitled to be awarded credit for time served,
no genuine issue of material fact exists with regard to Plaintiff’s claim and Defendants are
therefore entitled to judgment as a matter of law. See id. at 6-8 of 28.
To establish that a defendant is liable pursuant to section 1983 for incarceration
without penological justification, a plaintiff must demonstrate three elements: “(1) that
the defendant had knowledge of the prisoner’s problem and thus of the risk that
unwarranted punishment was being, or would be, inflicted; (2) that the defendant either
failed to act or took only ineffectual action under the circumstances, indicating that the
defendant’s response to the problem was a product of deliberate indifference to the
prisoner’s plight; and (3) a causal connection between the official’s response to the
problem and the unjustified detention.” Freeman v. Martinez, 304-CV-1226, 2005 WL
1309023 (M.D. Pa. May 31, 2005) (Smyser, M.J.) (citing Moore v. Tartler, 986 F.2d 682,
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686 (3d Cir. 1993)). As a threshold matter, therefore, Plaintiff must show that he was
incarcerated without justification.
The Pennsylvania statute governing credit for time served provides in relevant part
as follows:
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of the
criminal charge for which a prison sentence is imposed or as a result
of the conduct on which such a charge is based. Credit shall include
credit for time spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
42 Pa. C.S.A. § 9760(1). “The principle underlying [section 9760] is that a defendant
should be given credit for time spent in custody prior to sentencing for a particular
offense.” Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007), app. denied,
944 A.2d 756 (Pa. 2008). However, Pennsylvania courts have had to determine the
meaning of “time spent in custody” because the phrase is not defined in section 9760 or in
any other provision of the Pennsylvania Sentencing Code. Id. at 595-96. As a result, the
question of whether treatment in a drug rehabilitation facility can be considered “custody”
as defined by section 9760(1) is generally left to the discretion of the sentencing court.
See id. at 596 (“Generally, it is within the trial court’s discretion whether to credit time
spent in an institutionalized rehabilitation and treatment program as time served ‘in
custody.’”) (citing Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991)).
In Conahan, the Pennsylvania Supreme Court concluded that the appellant’s
ninety-five days of voluntary commitment to inpatient custodial alcohol rehabilitation
8
was a sufficient institutional setting to affirm granting credit for time served, stating as
follows:
Clearly our acceptance of this type of inpatient institutional
rehabilitation in no way entitles one . . . to credit for such
rehabilitative commitment as of right. Rather, it is only an
express approval of credits for such commitment that the
sentencing court in its discretion deems to be sufficient.
Accordingly, we hold that the trial court . . . acted well within its
discretion in awarding [the appellant] a credit of thirty days for
time served in inpatient institutional rehabilitation.
589 A.2d at 1109-10 (emphasis in original). In the present case, the sentencing court did
not credit Petitioner for all or part of his twenty-eight days in Keenan House.
In Fowler, the Pennsylvania Superior Court considered whether the sentencing
court acted within its discretion when it denied a defendant twenty-five months’ credit for
time served in a “drug treatment court program.” See 930 A.2d 586, 595. In concluding
that the inpatient rehabilitation facilities were not so restrictive as to constitute custody,
the court considered the fact that the appellate voluntarily entered the treatment program,
the participants were not locked-down, the facilities’ doors were locked only to prevent
people from entering but did not prevent them from leaving, there were no bars on the
windows, the staff would not try to stop participants from leaving, and fencing of the
premises was for privacy rather than security. Id. at 597. The court therefore affirmed
the denial of time credit.
Even more on point is Meehan v. Pennsylvania Board of Probation and Parole,
808 A.2d 313 (Pa. Commw. 2002), in which the Commonwealth Court addressed the
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time credit issue specifically as to Keenan House – the same facility at issue in the present
case. Meehan was paroled to Keenan House from July 28, 1997, to February 6, 1998, and
after it was determined that he violated his parole, the Parole Board did not credit Meehan
for the time he spent in Keenan House. Id. at 315-16. On appeal, the Commonwealth
Court stated the following:
Although the evidence indicates that parolees are closely
monitored at Keenan House, we nonetheless believe that it
supports the Board’s determination that Meehan failed to meet
his burden of proving that the conditions at Keenan House were
so restrictive as to constitute the equivalent of incarceration. In
particular . . . Meehan was not locked in and could have walked
right out the door. Nobody at Keenan House would have been
authorized to stop him. In addition, a parolee who left Keenan
House would not be considered an escapee, but a parole
absconder.
Id. at 316-17. As a result, the Meehan court determined that the Parole Board did not act
arbitrarily or abuse its discretion in determining that Meehan was at liberty while at
Keenan House, and thus he was not entitled to credit against the sentence on recommitment as a parole violator for time spent at the facility. Id. at 317 (citing Jackson v.
Pa. Bd. of Prob. & Parole, 528 A.2d 1004, 1006 (Pa. Commw. 1990)).5
As previously noted, there is no dispute that Petitioner did not receive credit for
the twenty-eight days he spent in Keenan House. The analyses and conclusions rendered
by Pennsylvania courts in Fowler and Meehan direct the conclusion that Petitioner is not
5
The Meehan court recognized that defendants sent to Kennan House before their
release on parole do earn time credit, but rejected an equal protection challenge on that
ground. 868 A.2d at 317.
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entitled to credit for this time as a matter of right. The decision in Meehan is particularly
persuasive as Plaintiff treated at the identical facility within a year of the defendant in
Meehan. In addition, Defendants attach to their motion a sworn affidavit from Theodore
Alex, the Director of Operations for Keenan House, in which he states that the conditions
at the facility have not changed since the time of the Meehan ruling. See Alex Affidavit,
Doc. 20 Exh. “A.” According to Mr. Alex, patients at Keenan House are considered
clients and not inmates, they are allowed to leave the premises for scheduled
appointments, and facility employees are not permitted to restrain residents who attempt
to leave, but must instead call the client’s parole officer. See id. Keenan House does not
have bars on windows or doors to prevent people from leaving, and the doors lock only to
keep people from entering the facility. In addition, there are no walls or fences
whatsoever surrounding Keenan House. See id. All of these factors are consistent with a
finding that a parolee attending in-patient treatment at Keenan House is not entitled to
credit for time served. Plaintiff has not alleged facts that would give cause to doubt Mr.
Alex’s affidavit.
In sum, Pennsylvania law gives sentencing courts discretion to allow time spent in
drug treatment facilities to qualify as time served, but that where such discretion is not
exercised, the time spent by parolees in Keenan House specifically, or in similar drug
rehabilitation facilities, does not legally entitle the parolee to credit for time served.
Pennsylvania courts are best suited to make such determinations on the interpretation and
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application of Pennsylvania law. Because Plaintiff cannot show that he was incarcerated
without justification, it follows that he cannot show that his due process rights were
violated.6 Therefore, I conclude that no genuine issue of material fact exists regarding the
sole claim in the case.7
6
To the extent Plaintiff also alleges that his imprisonment violated his rights under
the Double Jeopardy Clause, such a claim would also fail to survive summary judgment.
A Plaintiff may be subject to double jeopardy if he or she is punished more than once for
the same crime. Gillespie v. Ryan, 837 F.2d 628, 630 (3d Cir. 1988). Plaintiff’s claim
that his uncredited twenty-eight-day stay at Keenan House somehow caused a double
jeopardy violation, or that such a violation occurred as a result of his administrative
transfer from a prison in Franklin County to one in Philadelphia County (see Doc. 21 ¶ 2),
is without a basis in the facts or applicable law.
7
In his amended complaint and response to the present motion, Plaintiff appears to
make two additional arguments – that the trial court violated his due process rights when
it revoked his parole for failing to pay costs and fines of which he was not given notice,
and that he was constructively denied his right to counsel at his Gagnon II hearing due to
a “communication breakdown” between himself and his public defender in violation of
the Sixth Amendment. See Doc. 17 at 1-3; Doc. 21 ¶ 3. Assuming for present purposes
that these claims are properly raised, neither precludes the granting of summary judgment
to Defendants. As previously noted, Plaintiff’s original sentence included the payment of
costs and restitution. Judge Reibman revoked Plaintiff’s parole the first time (May 21,
2007) for failing to notify his parole officer of his change of residence in addition to
failing to make payments toward his court costs, and the second time (on August 25,
2008) for failing to report in person at such times and places as instructed and had
changed his approved residence without permission. Plaintiff has not articulated any
reason why the revocation of his parole violated due process. In addition, Plaintiff’s
Sixth Amendment claim is not properly brought in the context of a section 1983 case
because a public defender “does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Sanes
v. Milgram, 08-3563, 2008 WL 5111290, at (D.N.J. Dec. 3, 2008) (Bumb, J.) (quoting
Polk Co. v. Dodson, 454 U.S. 312, 325 (1981)).
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IV.
CONCLUSION
Viewing the evidence in the light most favorable to the non-moving party, see
Anderson, 477 U.S. at 255, I conclude that no genuine issue of material fact exists with
regard to Plaintiff’s claim of that he was confined unlawfully in violation of his due
process or other constitutional rights. See Fed. R. Civ. P. 56(a). Because I do not find
any genuine issues for trial on the existing record, I will grant judgment for Defendants as
a matter of law. An appropriate Order follows.
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