Jordan v. Beard et al

Filing 40

MEMORANDUM AND ORDER - AND NOW, this 21st day of May, 2012, it is ordered that: 1. Defts.' second dmtn. to dismiss the amd. complt. 38 is granted. 2. This action is dism'd. pur. to 28 USC 1915(e)(2)(B)(ii) for failure to state a claim upo n which relief may be granted. 3. Any appeal taken from this order shall be deemed frivolous, lacking in good faith & w/out probable cause. 4. The Clerk of Court shall close this file. (See memo for complete details.) Signed by Honorable William W. Caldwell on 5/21/12. (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN JORDAN,
Plaintiff
v.
JEFFREY A. BEARD, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL NO. 1:09-CV-2394
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court is Defendants’ Second Motion to Dismiss

the Amended Complaint, addressing the sole remaining claim: whether plaintiff,
Shawn Jordan, a convicted sex offender, has a liberty interest in not being removed
from a sex offender treatment program (“SOTP” or “program”) without due process
because his participation is a prerequisite for his parole eligibility, as required by 42
Pa. Con. Stat. Ann. § 9718.1 (West 2007). Defendants argue that Jordan fails to
state a claim because his offenses predate the statute, which has not been made
retroactive. Jordan has not filed a brief in opposition to the motion, nor has he
requested an enlargement of time to do so.
For the following reasons, Plaintiff’s claim will be dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

II.

Procedural History
By memorandum and order of March 12, 2012, the court granted in

part, and denied in part, Defendants’ first Motion to Dismiss the Amended
Complaint. Jordan v. Beard, 2012 WL 833023. The only claim that survived was

Jordan’s procedural due process claim challenging the manner of his removal from
the SOTP program. That claim might have failed for the simple reason that section
9718.1 did not apply to Plaintiff because his sexual offenses predated the act. 2012
WL 833023, at *5. However, we could not decide the claim on that basis because
the necessary facts were not before us at the time. Id. Accordingly, Defendants
were granted leave to submit a second motion to dismiss which would bring those
facts before us in a procedurally correct manner. Id.1

III.

Standard of Review
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[w]e

‘accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.’” Byers v. Intuit, Inc., 600 F.3d
286, 291 (3d Cir. 2010)(quoted case omitted). A court may consider documents that
are attached to or submitted with the complaint, Pryor v. Nat’l Collegiate Athletic
Ass’n, 288 F.3d 548, 560 (3d Cir. 2002), and matters of public record, Delaware
Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), including court filings.
See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999) (citing

1

We dismissed the following claims: Jordan’s substantive due process claim
based on his removal from the SOTP program; his retaliation claim based on his alleged
First Amendment rights to free speech and association with other inmates thought by
prison staff to have a negative impact on his therapeutic treatment goals; all claims against
Defendants Phillips, Beard, Tennis, Marsh, Thompson, Smith and Varner based on Jordan’s
failure to state a claim against them.

-2-

Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993)).
“Pro se complaints are ‘liberally construed’ and ‘held to less stringent
standards than formal pleadings drafted by lawyers[.]’” Jackson v. Div. of
Developmental Disabilities, 394 F. App’x 950, 951 n.3 (3d Cir. 2010)
(nonprecedential) (quoted case omitted). Nonetheless, the complaint still “must
contain allegations permitting ‘the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoted case omitted). Pro se litigants are to be
granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend. See Fletcher–Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, leave to amend need not be
granted if amendment would be futile. Grayson v. Mayview State Hospital, 293 F.3d
103, 106 (3d Cir. 2002).
With these principles in mind, we set forth the background to this
litigation.

IV.

Background
In pertinent part, 42 Pa. Con. Stat. Ann. § 9718.1 (West 2007),

requires persons convicted of certain sex offenses against a minor to “attend and
participate in a [DOC] program of counseling or therapy . . . .” Id. § 9718.1(a). This
act applies to offenses committed on or after the effective date of the act, December
20, 2000, and specifies that the sex offender “shall not be eligible for parole unless
the offender has . . . participated in the program . . . .” Id. § 9718.1(b)(1)(ii).
-3-

In 1988 Jordan was charged with, among other crimes, murder and
involuntary deviate sexual intercourse with a minor. Commonwealth v. Jordan, CP51-CR-0128911-1989 (Pa. Court of Common Pleas - Phila. Cnty.).2 Jordan pled
guilty to the charges, and on October 15, 1990, he was sentenced to fifteen- to fortyyears imprisonment. Id.; see also Jordan v. State Police, Civ. No. 04-5450, 2005
WL 697428 at *3 (E.D. Pa. Mar. 25, 2005).
On April 9, 2008, Jordan began participating in the SOTP. Doc. 25,
Am Compl., ECF p. 3.32 Jordan was removed from the program on May 19, 2008.4
Id. Exercising their “professional opinion,” treatment staff had determined that
Jordan’s “actions and statements indicate[d] that he [was] not able to commit
himself to serious sex offender treatment at [that] time.” Id., ECF p. 13.
In January 2009, Jordan reentered the SOTP. In June 2009, a staff
member submitted a “vote sheet” for his removal based on his association with
another inmate. Doc. 25, ECF p. 2. Jordan filed a grievance regarding his removal.
Id. at ECF p. 31. He complained that the manner of his removal, via a vote sheet
and not a misconduct, violated his Due Process rights. Id.

2

The state-court dockets are available through Pennsylvania’s Unified Judicial
Docket System docket research site at: http://ujsportal.pacourts.us/.
3

Unless otherwise noted, all citations to the record are to the docket number and
page number assigned by the Electronic Case Filing system (ECF) rather than the page
number of the original document.
4

Notably, this was the second time Jordan was removed from the SOTP for noncompliance with program requirements. Doc. 25-2, ECF pp. 2 and 13.

-4-

V.

Discussion
Jordan argues that he has a liberty interest in participating in the

SOTP as it is a prerequisite, pursuant to 42 Pa. Con. Stat. Ann. § 9718.1, for his
parole eligibility and thus, he is entitled to due process prior to being removed from
the program. He alleges he was deprived of the requisite due process when he was
removed from the SOTP program via a vote sheet instead of by way of a
misconduct which would have provided him with some level of due process
protection.
We reject this claim because section 9718.1 does not apply to Jordan.
As Defendants point out, he committed his criminal offenses before December 20,
2000, the section’s effective date, and the section only applies to offenses
committed after its effective date. See Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d
904, 908 (Pa. Commw. Ct. 2003) (section 9718.1 applies only to offenses occurring
after its effective date); Porter v. Grace, No. 05–CV–681, 2006 WL 680820, at *2 n.
2 (M.D.Pa. Mar. 13, 2006) (Caldwell, J.) (same, citing Evans ).
For the reason stated, Jordan fails to state a procedural due process
claim based on his removal from the SOTP via a vote sheet. We need not give
Plaintiff an opportunity to amend since amendment would be futile.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: May 21, 2012
-5-

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN JORDAN,
Plaintiff
v.
JEFFREY A. BEARD, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL NO. 1:09-CV-2394
(Judge Caldwell)

ORDER
AND NOW, this 21st day of May, 2012, it is ordered that:
1. Defendants’ Second Motion to Dismiss the Amended
Complaint (Doc. 38) is granted.
2. This action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted.
3. Any appeal taken from this order shall be deemed
frivolous, lacking in good faith and without probable
cause.
4. The Clerk of Court shall close this file.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge