Collins v. Wiekrykas et al

Filing 6

MEMORANDUM re Complaint 1 filed by Johnny Collins (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/24/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHNNY COLLINS,
Plaintiff
vs.
J. WIEKRYKAS, et al.,
Defendants

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CIVIL NO. 1:CV-16-1029
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Johnny Collins, an inmate at the Mahanoy State

Correctional Institution (SCI-Mahanoy), in Frackville, Pennsylvania, filed this 42 U.S.C. §
1983 action, alleging that Records Supervisor J. Wiekrykas, Superintendent John Kerestes
and Chief Grievance Officer Dorina Varner violated his Eighth Amendment and dueprocess rights by delaying the commencement of one of his criminal sentences. (ECF No.
1, Compl.) As relief he seeks compensatory and punitive damages. He has also filed a
motion to proceed in forma pauperis, 28 U.S.C. § 1915.
For the reasons that follow, Collins’ motion to proceed in forma pauperis (ECF
No. 2) will be granted, but his Complaint will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(b)(ii) for failure to state a claim on which relief may be granted. He will not be
granted leave to file an amended complaint as an amended complaint would be futile.

II.

Standard of Review for Screening
When a litigant seeks to proceed in forma pauperis, without the prepayment

of fees, 28 U.S.C. § 1915 requires the court to screen the complaint. Likewise, when a
prisoner seeks redress from a government defendant in a civil action, whether proceeding
in forma pauperis or not, the court must screen the complaint. See 28 U.S.C. § 1915A(a).
Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the court the authority to dismiss a
complaint if it is frivolous, malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d
Cir. 2013).
A complaint is frivolous if it lacks an arguable basis either in law or fact. See
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)(citing Neitzke v. Williams, 490 U.S. 319,
327-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989)). In deciding whether the
complaint fails to state a claim on which relief may be granted, the court employs the
standard used to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Under Rule 12(b)(6), we “must accept all of
the complaint’s well-pleaded facts as true, but may disregard any legal conclusions.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949 - 50, 173 L.Ed.2d 868 (2009)). The court may
also rely on exhibits attached to the complaint and matters of public record. Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

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A complaint filed by a pro se plaintiff must be liberally construed and “held ‘to
less stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780
F.3d 184 (3d Cir. 2015)(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596,
30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff “must allege sufficient facts in
their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245
(3d Cir.2013) (citation 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, unless such an
amendment would be inequitable or futile. See Estate of Lagano v. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir. 2014).

III. Allegations of the Complaint
On January 15, 2003, Collins was found guilty of Receiving Stolen Property
and Driving under a Suspended License. See Commonwealth v. Collins, CP-22-CR-26072002 (Pa. Ct. Com. Pl. Dauphin Cnty.).1 He was sentenced on May 7, 2003. (Id.) He
received a term of sixty months’ imprisonment and credit for time running from July 22,
2002, to May 7, 2003. (Id.) On July 8, 2004, the Pennsylvania Superior Court affirmed his
sentence. (Id.) On July 26, 2010, Collins’ motion for postconviction relief was dismissed.
(Id.) Collins was released on Probation/Parole on April 19, 2010. (Id.) On October 19,
2010, a detainer was issued on this sentence. (Id.) On August 21, 2007, a parole

1

Available through Pennsylvania’s Unified Judicial Docket System docket research at:
http://ujsportal.pacourts.us/.

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revocation hearing was held. (Id.) The docket entry reflects the following notation:
“Revocation Hearing Held 8/21/12 before Judge John Cherry. Ct. 1 - T.B.R.S.P. - CLOSE
DOCKET.” (Id.)
On January 10, 2007, Collins pled guilty to various drug charges. See
Commonwealth v. Collins, CP-22-CR-09994629-2006 (Pa. Ct. Com. Pl. Dauphin Cnty.).2
On January 12, 2007, Collins was sentenced to two-and-a-half years to five years’
imprisonment on the drug charges. He was to receive credit from May 18, 2006, to
January 10, 2007. (Id.)
On October 19, 2010, Collins was again arrested by the Harrisburg Police
Department on various drug charges. See Commonwealth v. Collins, CP-22-CR-00060852010 (Pa. Ct. Com. Pl. Dauphin Cnty.).3 On May 8, 2012, Collins was found guilty on
several of the drug charges. (Id.) On July 25, 2012, Plaintiff was sentenced to nine to
eighteen years’ imprisonment followed by one year’s probation. (Id.)
On February 25, 2013, the Pennsylvania Board of Probation and Parole (the
Board) rendered a decision to recommit Collins as a convicted parole violator to serve
eighteen months’ backtime. (ECF No. 1, Compl., p. 3). Collins alleges that on April 11,
2011, both cases “(2607 and 4629) expired prior to the 2/25/13 Board decision as a result
of the 17½ months time credit on case No. 4629.” (Id.)

2

Available through Pennsylvania’s Unified Judicial Docket System docket research at:
http://ujsportal.pacourts.us/.
3

Available through Pennsylvania’s Unified Judicial Docket System docket research at:
http://ujsportal.pacourts.us/.

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On October 17, 2015, Collins filed Grievance No. 592738 concerning prison
staff’s failure to “cure the more than 5 year delay in the commencement of the 9 to 18 year
sentence in case No. CP-22-CR-6085-2010 for more than five (5) years.” (Id.) The
grievance was denied at Final Review on January 14, 2016. (Id.) He names as defendants
all those who took part in the administrative review and failed to act to correct this alleged
sentencing error.

IV.

Discussion
We construe Collins’ Complaint as seeking monetary compensation against

state prison employees for his alleged illegal confinement resulting from their failure to
commence one of his sentences earlier, presumably resulting in his extended confinement.
It is well established that prisoners cannot use § 1983 to challenge the fact or
duration of their confinement or seek immediate or speedier release. Preiser v. Rodriguez,
411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Additionally, the United States
Supreme Court has ruled that a constitutional cause of action for damages does not accrue
“for allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,” until the plaintiff
proves that 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.” Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

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Because the allegations of the complaint make clear that there has been no
prior determination that Collins should not serve the time imposed, it is appropriate to
dismiss the claim for damages as legally frivolous. Collins cannot, under Heck, maintain a
cause for unlawful imprisonment until the basis for that imprisonment is rendered invalid.
The only federal avenue of relief, if Plaintiff wishes to challenge his current detention, would
be to file a habeas corpus petition under 28 U.S.C. § 2254. See also Mitchell v. Dep’t of
Corr., 272 F. Supp. 2d 464, 473 (M.D. Pa. 2003) (holding that the favorable termination rule
of Heck, under which a state inmate must secure a determination of invalidity of his
conviction or sentence before seeking § 1983 damages for unconstitutional conviction or
confinement, applies to suits by prisoners who no longer are in custody, even though
federal habeas relief no longer is available due to the prisoner's release). We express no
opinion on the success of any such petition as a 2254 petitioner typically must resort to any
available state remedy before filing a 2254 petition. See 28 U.S.C. § 2254(b)(1).

V.

Leave to Amend
Before dismissing a complaint or claims for failure to state a claim upon which

relief may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the court
must grant plaintiff leave to amend his complaint unless amendment would be inequitable
or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 114 (3d Cir. 2002). In
this case, it is clear from the facts alleged that allowing Collins leave to amend prior to
invalidation of the challenged sentence would be futile.

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VI.

Conclusion
Based on the foregoing, Collins’ Complaint (ECF No. 1) will be dismissed

without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
We will issue an appropriate order.

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

Date: April 24, 2017

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