Priovolos v. Department of Corrections et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Sylvia H. Rambo on 12/19/16. (sc) Modified on 12/20/2016 (sc).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CORRECTIONS, et al.,
CIVIL NO. 1:16-CV-01999
On September 30, 2016, Ernest Priovolos, a
former inmate of the State Correctional Institution at
Rockview, Bellefonte, Pennsylvania, filed a complaint
pursuant to 42 U.S.C. § 1983 against (1) the
Pennsylvania Department of Corrections; (2) John Wetzel,
Secretary of the Department of Corrections; (3) Mark
Garman, Superintendent at SCI-Rockview; and (4) Clerk
(5) Supervisor Jessica Welch, and (6) K. Witman,
all individuals employed in the Department of Records at
The gist of Priovolos’
complaint is that his rights under various provisions of
the United States Constitution were violated when he was
confined for 5 months beyond the date he was re-paroled
on prior criminal convictions. (Id.)
Priovolos requests compensatory and punitive damages.
(Id.) Along with the complaint Priovolos filed a motion
to proceed in forma pauperis. (Doc. 2.)
following reasons, the motion to proceed in forma
pauperis will be granted for the purpose of filing this
action only and the complaint will be dismissed as
legally and factually frivolous under 28 U.S.C. §
When considering a complaint accompanied by a
motion to proceed in forma pauperis, a district court
may rule that process should not be issued if the
complaint is malicious, presents an indisputably
meritless legal theory, or is predicated on clearly
baseless factual contentions.
Neitzke v. Williams, 490
U.S. 319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d
772, 774 (3d Cir. 1989).
Indisputably meritless legal
theories are those "in which either it is readily
apparent that the plaintiff's complaint lacks an
arguable basis in law or that the defendants are clearly
entitled to immunity from suit . . . ."
Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting
Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir.
The Supreme Court has recognized that "a
finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or the
wholly incredible . . . ."
Denton v. Hernandez, 504
U.S. 25, 33 (1992); see also Roman, 904 F.2d at 194
(baseless factual contentions describe scenarios clearly
removed from reality).
The Court of Appeals for this
circuit has held that "the plain meaning of 'frivolous'
authorizes the dismissal of in forma pauperis claims
that . . . are of little or no weight, value, or
importance, not worthy of serious consideration, or
Deutsch v. United States, 67 F.3d 1080, 1083
(3d Cir. 1995).
It also has been determined that "the
frivolousness determination is a discretionary one," and
trial courts "are in the best position" to determine
when an indigent litigant's complaint is appropriate for
Denton, 504 U.S. at 33.
The allegation in the complaint and the
documents attached to the complaint reveal that on
January 28, 1991, an aggregate sentence of 12 to 27
years was imposed on Priovolos by the Montgomery County
Court of Common Pleas for third degree murder and
robbery. (Doc. 1, at 11.)
Priovolos initial minimum
sentence date was March 5, 2002, and his maximum
sentence date was March 5, 2017. (Id.)
his minimum date Priovolos was paroled and then in
2014, he was arrested in Bucks County for
several offenses, including accident involving damage to
attended vehicle and property,
trespass by motor vehicle, and failure to stop and
render aid. (Doc. 1, at 3; Commonwealth of Pennsylvania
v. Ernest H. Priovolos, CP-09-CR-0002581-2014.)1
result of the new offenses, the Pennsylvania Board of
Probation and Parole revoked Priovolos’s parole.
February 2, 2015, Priovolos was sentence in Buck County
1. The court utilized the Unified Judicial System of
Pennsylvania Web Portal to review the docket of
Priovolos’ criminal case. A district court may take
judicial notice of proceedings in another court. See
United States v. Wilson, 631 F.2d 118 (9th Cir. 1980);
Hayes v. Woodford, 444 F.Supp.2d 1127, (S.D. Cal.
2006)(“[F]ederal courts may take judicial notice of
other courts’ proceedings, within the federal judiciary
and without, if the proceedings directly relate to the
matter before the court.”).
with respect to the new charges and received a sentence
of 5 months to 12 months imprisonment to be served at a
State Correctional Institution. (Doc. 1, at 11.)
Priovolos, however, did not commence the sentence of
five months until he was granted re-parole from the
parole revocation sentence imposed relating to the third
degree murder and robbery convictions. (Id. at 3.)
Priovolos was re-paroled on January 22, 2016. (Id.)
Priovolos filed a grievance at SCI-Rockview
relating to his sentence computation.
The final appeal
with respect to that grievance was decided by Chief
Grievance Officer Dorina Varner of the Pennsylvania
Department of Corrections on August 18, 2016.
Varner in denying Priovolos’ appeal gave the following
This office is in receipt of your appeal, has
reviewed all applicable documents, and consulted
with relevant professional staff. In your
grievance, you believe that the Department has
erred when calculating your sentence and take
particular issue with your Bucks County sentence
being added as a detainer. Despite the very
detailed initial review response, you continue
A review of the records by the Sentence
Computation Unit (CSCU) reflects that the
Bucks County Sentence CP 2581 was correctly
kept as a detainer to be served in the DOC.
CP 2581 was the reason for the parole violation
under BK-71702 and was used as a reason for
recommit. Bucks County also ordered the
sentence to be served in an SCI. . . .
Because CP 2581 was ordered to be served in
an SCI and because the total aggregation with
back-time is over 2 years, this becomes a state
sentence to be served in the SCI. In accordance
with the parole act title 62 § 6138, the order
of service of sentences for a convicted parole
violator when the new offenses is sentenced
to the same place of confinement the offender
previously paroled from [the] offender serves
the back-time first, and then the new offense.
That is how the cases were structured. Based on
the review, your appeal and any requested relief
(Doc. 1, at 15.)
It is clear that Priovolos violated
his parole on the prior conviction and was recommitted
with respect to that prior case. He did not commence
serving his sentence of 5 to 12 months for the Bucks
County conviction until he was re-paroled on January 22,
2016, with respect to the Montgomery County convictions.
Priovolos has not alleged or attached any documents to
his complaint indicating that he challenged the
computation of his sentence in state or federal court by
way of petition for writ of habeas corpus or otherwise,
BK-7170 refers to the prior convictions for third
degree murder and robbery.
or that a court has indicated that the computation was
erroneous and overturned the sentence of 5 to 12 months.
Furthermore, an electronic search has not revealed any
such challenge to and reversal of the 5 to 12 month
sentence imposed by the Bucks County Court of Common
In Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court 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."
at 486-87. Thus, Priovolos’s complaint for damages
is legally frivolous.
Although the complaint as filed is frivolous, it
is possible that the deficiencies may be remedies by
Consequently, Priovolos will be granted such
Priovolos is also advised that the amended
complaint must be complete in all respects.
delineate whether or not he challenged the computation
of his sentence in state or federal court and the
outcome of that challenge. The amended complaint must be
a new pleading which stands by itself without reference
to the complaint already filed.
Such amended complaint
should set forth his claims in short, concise and plain
It should specify which actions are alleged
as to which defendants.
If Priovolos fails to file an
amended complaint adhering to the standards set forth
above, this case will be closed.
An appropriate order will be entered.
SYLVIA H. RAMBO
United States District Judge
Dated: December 19, 2016
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