ANDREW v. BUSKIRK et al
MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 8/14/17. 8/15/17 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANK E. ANDREW,
TODD BUSKIRK, et al.,
August 14, 2017
Frank Andrew filed this civil rights action against the warden, the intake administrator,
and an intake specialist at the Northampton County Department of Corrections, alleging Eighth
Amendment and false imprisonment claims. According to Andrew, the prison officials
improperly calculated his credits, which were based on multiple sentences from multiple
counties, thereby causing him to remain in custody for 162 days past the expiration of his
sentence. He also alleges that they failed to act appropriately in response to his claims that the
credits were owed. The defendants filed a motion for summary judgment on the entirety of the
complaint, while Andrew moved for summary judgment as to his claims against the intake
administrator and intake specialist only. 1 For the reasons that follow, I will grant the defendants’
motion for summary judgment and deny Andrew’s motion for summary judgment.
As stated at oral argument, Andrew did not move for summary judgment against the
warden because he believes a genuine issue of material fact remains as to the warden’s
involvement in the decisions regarding Andrew’s credits.
A. Andrew’s Charges, Sentences, and Periods of Incarceration 2
Andrew had numerous contacts with the criminal justice system between 2010 and 2014.
These various arrests, charges, sentences, and periods of incarceration, parole, and probation in
Montgomery, Bucks, and Northampton Counties are detailed below:
In 2010, Andrew was arrested in Montgomery County on various charges, and was
released on bail.
In September 2010, Andrew pled guilty to various charges in Bucks County and was
sentenced to 11½ to 23 months’ incarceration to be followed by two years’ probation. At
the time of this plea, he was being housed in Northampton County jail on separate
In February 2011, Andrew pled guilty to charges in Northampton County and was
sentenced to 11½ to 23 months’ incarceration, to run concurrently with the 2010 Bucks
The Montgomery, Bucks, and Northampton County sentences ran concurrently, and on
August 10, 2011, Andrew was released on parole from Northampton County after serving
11½ months. At that time, he was sent to Bucks County, because he had not completed
the minimum sentence on the Bucks County charges. He was then paroled from Bucks
County in September 2011.
In January 2012, Andrew received a parole violation in Bucks County and was released
on parole in February 2012 after serving thirty days.
The details of Andrew’s criminal history are taken from the Defendants’ Statement of
Material, Uncontested Facts (“DSUMF”), except where otherwise noted.
Andrew also spent time on probation and in custody due to arrests for conduct which
occurred after he was released from Northampton County Jail. (See DSUMF ¶¶ 47–53.)
On June 5, 2012, Andrew was arrested in Bucks County on new charges. As a result, he
also violated both his Bucks County parole and his Montgomery County parole.
In November 2012, Andrew pled guilty to the Bucks County charges and was sentenced
to two years’ probation. He was also awaiting hearings on parole violations. (Defs.’
Resp. Opp’n to Pl.’s Mot. Summ. J. ¶ 18.)
In January 2013, Andrew was found in violation of his Bucks County parole, and was
sentenced to the balance of his Bucks County sentence. He received credit for time
served from June 5, 2012 to January 23, 2013. At that time, Andrew was transported to
Montgomery County, where he was held for one week pending a hearing on his parole
violation. He was then transported back to Bucks County and then to Northampton
At his parole violation hearing in Montgomery County, Andrew was found guilty and
was sentenced to serve the remainder of his sentence, with credit for time served from
June 5, 2012 to January 18, 2013.
In late January or early February 2013, Andrew was transferred to Northampton County,
and on March 1, 2013, he was found guilty of violating his Northampton County parole.
He was given work release and was to be re-paroled after thirty days. His Violation of
Parole (“VOP”) sheet stated “If entitled, will receive credit for time served.” Andrew
was released approximately two weeks after the hearing, and received credit for time
served between the time of his detention and the time of his parole violation hearing.
In December 2013, Andrew violated his parole. A hearing on the violation occurred on
January 2, 2014 in Buck County. The judge in Bucks County decided to defer sentencing
for ninety days.
Andrew then had a parole violation hearing in Northampton County on January 10, 2014.
The Northampton County judge revoked Andrew’s parole and sentenced him to the
balance of his maximum sentence. The sentencing sheet stated “Violator. Serve balance.
Eligible for immediate work release. Remanded to NCP. Concurrent to all other
sentences incl- Bucks Cty.” The Sentencing Sheet did not refer to credit for time served
in any of the institutions in which Andrew had been incarcerated. Pursuant to the
Sentencing Sheet, Andrew was remanded to Northampton County Jail to serve the
remainder of his sentence.
Thus, as of January 2014, Andrew was incarcerated in the Northampton County Jail. It is during
this period of incarceration that his claims arose.
B. Andrew’s Grievances Regarding Credits 3
On March 10, 2014, while incarcerated in the Northampton County Jail, Andrew filed a
grievance claiming that he should have received credit for time served in Bucks County Prison.
The grievance coordinator informed Andrew that the intake division had been asked to review
his case file. He also advised Andrew that the prison had no documentation from Northampton
or Bucks County directing them to give him those credits, but that if Andrew had such
documentation he should provide it. The intake division reviewed Andrew’s file, and informed
the grievance coordinator that in their view, Andrew was seeking credit for time spent in Bucks
County on an unrelated charge for which he received a sentence of probation. The intake
division also told Andrew that he would not get credit for time served in another county under
these circumstances, unless there was a specific court order to that effect, and that no such order
was present in his file.
The details of Andrew’s grievances and actions taken in response come from the
Defendants’ Statement of Material, Uncontested Facts.
Andrew filed another grievance regarding the credit issue on March 18, 2014. The
response was substantively the same, and added that if Andrew believed he was owed additional
credit, he should have his attorney provide the jail with documentation from the court to that
effect. Andrew sought to have his Bucks County sentencing information sent to the jail, and
subsequently filed an appeal of his grievance. A deputy warden responded to the appeal with a
similar response, and advised Andrew to have his attorney provide court documentation in
support of his claim regarding credits.
In June 2014, Andrew hired an attorney who negotiated with the district attorney, who in
turn spoke with a judge who issued an order awarding Andrew credit for the time he spent in
Bucks County. That order is dated June 13, 2014. Upon receipt of the order, Northampton
County Jail released Andrew.
STANDARD OF REVIEW
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A factual dispute is
“material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). For an issue to be “genuine,” a reasonable fact-finder must be able to
return a verdict in favor of the non-moving party. Id.
On summary judgment, the moving party has the initial burden of identifying evidence
that shows the absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas
Co., 364 F.3d 135, 145–46 (3d Cir. 2004). It is not the court’s role to weigh the disputed
evidence and decide which is more probative, or to make credibility determinations. Boyle v.
Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (internal citation omitted). Rather, the court
must consider the evidence, and all reasonable inferences which may be drawn from it, in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal citations omitted).
The moving party must establish an absence of a genuine issue of material fact, but it
need not “support its motion with affidavits or other similar materials negating the opponent’s
claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Instead, it can meet its burden by
“pointing out . . . that there is an absence of evidence to support the nonmoving party’s claims.”
Id. at 325. If the non-moving party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden at trial,”
summary judgment is appropriate. Celotex, 477 U.S. at 322. The mere existence of some
evidence in support of the non-movant is not sufficient to support a denial of a motion for
summary judgment; there must be enough evidence to enable a jury to reasonably find in the
non-movant’s favor on that issue. Anderson, 477 U.S. at 249–50 (internal citations omitted).
The summary judgment rules do not apply any differently where there are cross-motions
pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). “‘Cross-motions are no
more than a claim by each side that it alone is entitled to summary judgment, and the making of
such inherently contradictory claims does not constitute an agreement that if one is rejected the
other is necessarily justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.’” Id. (quoting Rains v. Cascade
Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).
After careful consideration of the parties’ arguments and the evidence in the record, I find
that no genuine issues of material fact remain with respect to the “over-detention” claim, and that
the defendants are entitled to summary judgment on the entirety of Andrew’s complaint.
A. Andrew’s Claim That He Was Entitled to Credits
“An inmate’s detention after his term of imprisonment can, under certain circumstances,
constitute cruel and unusual punishment, in violation of the Eighth Amendment.” Wharton v.
Danberg, 854 F.3d 234, 241 (3d Cir. 2017) (citing Montanez v. Thompson, 603 F.3d 243, 250
(3d Cir. 2010)). Here, Andrew asserts that he was detained in the Northampton County Jail for
162 days beyond the date that he should have been released from custody.
Andrew’s Eighth Amendment and false imprisonment claims stem from his belief that he
was entitled to credit on his Northampton County jail time for the time he spent in Bucks County
Jail from June 5, 2012 to January 23, 2013. Andrew was incarcerated in Bucks County for that
time period because of new Bucks County charges, 4 for which he received a sentence of
probation and time served. Specifically, he asserts that the days he was in custody should have
been applied to the balance of a previously incurred Northampton County sentence—which had
been ordered to run concurrently to a different, older Bucks County sentence—that he was
required to complete as a result of violating his Northampton County parole. 5
As noted above, Andrew was also awaiting hearings in Bucks County and Montgomery
County on parole violations.
The Pennsylvania statute governing time served does not support Andrew’s argument.
It provides that courts
shall give credit as follows:
(1) 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
Essentially, Andrew argues that, because his new Bucks County charge resulted in a noncustodial sentence of time served and probation, credit for the time he spent awaiting sentencing
on that charge should instead be counted towards a 2011 Northampton County sentence. He
bases this argument on the fact that the 2011 Northampton County sentence was ordered to run
concurrently with the 2010 Bucks County sentence. But this outcome would require a finding
that (1) he should first get credit for time served for one sentence, and in addition receive credit
for that same period of incarceration towards a different sentence; and (2) the “concurrent” status
of the original two concurrent sentences somehow included a different Bucks County sentence
that was not imposed until 2012. Tellingly, Andrew does not point to any case law that would
support his interpretation of how credits should be awarded or the meaning of “concurrent” that
include credit for time spent in custody prior to trial, during trial,
pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody under a prior
sentence if he is later reprosecuted and resentenced for the same
offense or for another offense based on the same act or acts. This
shall include credit in accordance with paragraph (1) of this section
for all time spent in custody as a result of both the original charge
and any subsequent charge for the same offense or for another
offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of the
sentences is set aside as the result of direct or collateral attack,
credit against the maximum and any minimum term of the
remaining sentences shall be given for all time served in relation to
the sentence set aside since the commission of the offenses on
which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted
on another charge growing out of an act or acts that occurred prior
to his arrest, credit against the maximum term and any minimum
term of any sentence resulting from such prosecution shall be
given for all time spent in custody under the former charge that has
not been credited against another sentence.
42 Pa. Con. Stat. Ann. § 9760. None of these subsections supports Andrew’s claims.
In light of the Pennsylvania statutory provisions regarding time served and the facts of
Andrew’s case, no reasonable jury would find that “concurrent” means concurrent to a future
sentence imposed for a crime that had not yet been committed, or that Andrew should receive
credit against a non-concurrent sentence where he had already been awarded credit for time
served on his sentence. Thus, no reasonable jury would find that Andrew had been overdetained. Accordingly, the defendants are entitled to summary judgment on Andrew’s Eighth
Amendment and false imprisonment claims.
Because there was no over-detention, I need not address Andrew’s argument that the
defendants were deliberately indifferent to his claims that he should have been released prior to
the time that Northampton County Jail received the June 13, 2014 court order. Similarly, I do
not address the defendants’ argument that they are entitled to qualified immunity.
In light of the foregoing, I find that the defendants are entitled to summary judgment as to
the entirety of Andrew’s complaint, and their motion is therefore granted. Andrew’s motion for
summary judgment is denied.
An appropriate Order follows.
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