Williams Bey v. Pennsylvania Board of Probation and Parole, et al.

Filing 104

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS (Doc. 98). Defendants' Motion for Summary Judgment (Doc. 67) is GRANTED in part and DENIED in part. Bey's Motion for Summary Judgment (Doc. 60) is DENIED. Matter is recommitted to Magistrate Judge Mehalchick for further proceedings. Signed by Honorable A. Richard Caputo on 3/29/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES WILLIAMS BEY,
CIVIL ACTION NO. 3:CV-10-2597

Plaintiff,

(JUDGE CAPUTO)

v.

(MAGISTRATE JUDGE MEHALCHICK)

PENNSYLVANIA BOARD OF
PROBATION AND PAROLE, et. al.,
Defendants.
MEMORANDUM ORDER
Before me is Plaintiff Charles Williams Bey’s (“Mr. Bey”) Objections (Doc. 103) to
Magistrate Judge Karoline Mehalchick’s Report and Recommendation (“R and R”) (Doc. 98)
regarding his pro se Complaint that seeks declaratory and injunctive relief and
compensatory damages pursuant to 42 U.S.C. § 1983 (Doc. 1). Mr. Bey alleges his rights
were violated by the commissioner and employees1 of the Pennsylvania Department of
Corrections (“DOC”); by the Pennsylvania Board of Probation and Parole (“PBPP”), as well
as by its chairperson, Catherine McVey; and by the Pennsylvania Department of Health,
Office of Drug and Alcohol Programs (“DOH”) (collectively “Defendants”). Mr. Bey claims
violations of his First and Fourteenth Amendment rights; violation of the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42, U.S.C. § 2000 et seq.; and various state
law claims. Mr. Bey filed a motion for summary judgment. (Doc. 60) Defendants also filed
a motion for summary judgment. (Doc. 67)
The matter was referred to Magistrate Judge Mehalchick and she recommends the

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Mr. Bey names the following employees of the DOC as defendants: Linda Chismar,
Corrections Classification and Program Manager at State Correctional Institute at Coal
Township (“SCI-Coal Township”) (Doc. 69-2, 2 ¶ 1.); Michael Vivian, Drug and Alcohol
Treatment Specialists Supervisor (Doc. 69-3, 2 ¶ 1.); Dorina Varner, Chief Grievance
Officer at the Pennsylvania DOC; David Varano, Superintendent at State SCI-Coal
Township; Mike Miller, Major of Unit Management as SCI Coal-Township; and Ms. Pyar,
Parole Agent at SCI-Coal Township. (Doc. 1.) Mr. Bey also names DOC Commissioner of
Corrections, Jeffrey Beard. (Id.)

following: that Mr. Bey’s motion for summary judgment be denied; that Defendants’ motion
for summary judgment be granted in part and denied in part; that Defendants’ motion for
summary judgment be denied without prejudice as it pertains to Mr. Bey’s First Amendment
Establishment claims against Defendants Linda Chismar and Michael Vivian; and that the
Clerk’s office be directed to terminate the remaining named Defendants from the case .
(Doc. 98, 24.) Mr. Bey objects to Magistrate Judge Mehalchick’s recommendations. (Doc.
103.) After de novo review, I will adopt the reasoning of Magistrate Judge Mehalchick and
will adopt the R & R in its entirety. Mr. Bey’s objections will be overruled. I will not reiterate
Magistrate Judge Mehalchick’s factual findings and legal conclusions herein unless
necessary.
I.

Legal Standard- Objections to Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct
a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the
extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7
(3d Cir. 1984) (emphasis added). In conducting a de novo review, the court may accept,
reject, or modify, in whole or in part, the factual findings or legal conclusions of the
magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D.
Pa. 1993). Although the review is de novo, the law permits the court to rely on the
recommendations of the magistrate judge to the extent it deems proper. See United States
v. Raddatz, 447 U.S. 667, 675–76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749
F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994).
Uncontested portions of the report may be reviewed at a standard determined by the district
court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985);
Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for
clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D.
Pa. 1998).

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II.

Discussion

The facts are set forth fully in Magistrate Judge Mehalchick’s R& R and will not be
repeated herein.
Mr. Bey raises several objections to Magistrate Judge Mehalchick’s R & R. However,
I will consider only those objections that specifically challenge the factual findings and legal
conclusions of the R & R.2
First, Mr. Bey objects to the R & R’s use of the word “recommend” when referring to
an inmate’s participation in a drug and alcohol treatment program, or a therapeutic
community. (Doc. 103, 3-4.) Mr. Bey contends that the word “coercion” should be used and
that he was subjected to a contract of adhesion with the DOC when “forced to participate
in a treatment program that was not a “stipulation of the sentencing court.” (Id. at 4.) Mr. Bey
further contends that failure to participate in the program is the equivalent of punishment
because parole is not granted until completion. (Id.) However, as I have previously ruled,
there is no constitutional right to parole (See Doc. 37, 8); Mr. Bey himself states he had a
choice, albeit a “take-it-or-leave it proposition”, but a choice to participate or not; and Mr.
Bey has not stated a claim regarding any purported contract. I find no merit to this objection
and it will be overruled.
Mr. Bey objects to characterization of the treatment program as non-religious, stating
that there are references to religious elements throughout the therapeutic community
program. (Doc. 103, 5-6.) He also argues that he was never offered an alternative secular
program, despite Defendants’ assertion that he was. (Id.) I will adopt the recommendation
of Magistrate Judge Mehalchick regarding Mr. Bey’s Establishment claims against
Defendants Vivian and Chismar and therefore, will not address this objection further. Mr.
Bey’s claim will be allowed to proceed and will be remanded to Magistrate Judge

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Mr. Bey’s first two objections do not address substantive issues, but rather serve to
express his dissatisfaction, and therefore, will be overruled.
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Mehalchick for further proceedings.3
Mr. Bey objects to the recommendation that the PBPP, DOH, and certain individual
defendants be terminated from the action. (Doc. 103, 6-15.) As the PBPP and DOH can not
be sued by Mr. Bey pursuant to Section 1983, those defendants will be terminated. See
Harper v. Jeffries, 808 F.2d 281, 284 n. 4 (3d Cir. 1986) (citing Alabama v. Pugh, 438 U.S.
781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam )) (“action. . . against the Parole
Board is barred by the eleventh amendment.”); Brown v. Pennsylvania State Dep't of
Health, No. CIVA 1:05CV2448, 2006 WL 1620218, at *1 (M.D. Pa. June 5, 2006) (citing
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983)) (“the Department of
Health is an arm of the Commonwealth of Pennsylvania, see 71 Pa. Stat. Ann.. § 61, and
is therefore immune from suit by the Eleventh Amendment”). Mr. Bey also objects to the
recommendation that the individual defendants be terminated from the action. (Doc. 103,
8-10, 113-115.) However, after de novo review of the alleged actions by the Defendants
McVey, Beard, Varano, Pyar, Varner and Miller, Mr. Bey fails to allege personal involvement
sufficient for liability under his Section 1983 claims. I will adopt Magistrate Judge
Mehalchick’s legal reasoning and recommendation and direct the Clerk of Courts to
terminate these Defendants from this action.
Mr. Bey next objects to Magistrate Judge Mehalchick’s recommendation that further
dispositive motions be permitted. (Doc. 103, 13; 15.) Mr. Bey’s expresses his dissatisfaction
by referencing Magistrate Judge Mehalchick’s suggestions for the parties regarding any
further motions. (Id. at 15 n. 8.) However, I will overrule this objection and permit the filing
of further dispositive motions, especially in light of the fact that Magistrate Judge Mehalchick
provided Mr. Bey with constructive advice with regard to further motions.
With regard to Magistrate Judge Mehalchick’s recommendation that summary
judgment be granted to Defendants on Mr. Bey’s Free Exercise claims, Mr. Bey puts forth
3

To that end, Mr. Bey’s objection to the recommendation that the matter be remanded
to Magistrate Judge Mehalchick for further proceedings is similarly overruled. See 28 U.S.C.
636.
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several objections. Mr. Bey contends that the defendants have not put forth a “‘penological
interest’ that would just justify their meddling in the belief system of Plaintiff,” (Doc. 103, 5;
15.) and that the four Turner factors are not met (Id. at 15-16.). (See Doc. 98, 15-20. (citing
Turner v. Safley, 482 U.S. 78, 89-90 (1987)). Mr. Bey reiterates that he was never offered
an alternative program (Doc. 103, 15.) and objects to Magistrate Judge Mehalchick’s
determination that creating a separate program for Moorish American inmates would come
at more than a de minimus cost. (Id. at 16.)
I will adopt Magistrate Judge Mehalchick’s recommendation regarding Mr. Bey’s Free
Exercise Clause claim. The record demonstrates that inmates who participate in the
therapeutic community program are to be provided with alternative non-secular
materials.(See Doc. 69-2, Declaration of Defendant Chismar; Doc. 69-3, Declaration of
Michael Vivian; Doc. 69-4, 101.) Mr. Bey contends that he was never offered an alternative,
however, Mr. Bey requested that he be released from participation in any therapeutic
community program. (Doc. 62, 2.) Mr. Bey refused to participate in the program entirely,
(Doc. 69-3, 10.) and was therefore not offered the alternative material. There appears to be
no dispute that he was not offered an entirely different program separate and apart from
participation in the therapeutic community, however, Magistrate Judge Mehalchick’s careful
consideration of the third and fourth Turner factors demonstrate that providing Mr. Bey an
exemption from the recommendation or creation of an entirely different program would
come at a significant cost to the correctional facility. The balance of the Turner factors
favors Defendants and therefore, their motion for summary judgment will be granted.
Mr. Bey’s contention that Defendants are lying when they assert that alternatives
were available (Doc. 103, 14.) does not properly take into context the factual assertions of
the defendants. (See Doc. 69-2, Declaration of Defendant Chismar; Doc. 69-3, Declaration
of Michael Vivian; Doc. 69-4, 101.) The Defendants or Magistrate Judge Mehalchick do not
assert that an entirely alternative program was offered at SCI Coal-Township. Mr. Bey’s
objection will be overruled.
Turning to Mr. Bey’s objection to Magistrate Judge Mehalchick’s recommendation
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that summary judgment be granted to Defendants on Mr. Bey’s RLUIPA claims, Mr. Bey
argues that “all of the named defendants have placed a ‘substantial burden’ on Plaintiff’s
religious exercise.” (Doc. 103, 8.) He also argues that because he was never offered an
alternative to the therapeutic community, he would have been forced to violate his religious
rights. (Doc. 103, 17.) I agree with Magistrate Judge Mehalchick and adopt her legal
reasoning, that even assuming that participation in the therapeutic community places a
substantial burden on the exercise of Mr. Bey’s religion, Mr. Bey’s requested
accommodation, to be released from the recommendation to participate in a therapeutic
community, is excessive and no less restrictive alternative program can be offered in light
of cost and resource limitations of the correctional facility. (See Doc. 98, 21-23 (citing Cutter
v. Wilkinson, 544 U.S. 709, 723-726 (2005).) The recommendation will be adopted, Mr.
Bey’s objection will be overruled and Defendants’ motion for summary judgment will be
granted on Mr. Bey’s RLUIPA claims
Mr. Bey also objects to Magistrate Judge Mehalchick’s recommendation regarding
his Pennsylvania state law claims on the basis that he contends those employed as
counselors at SCI-Coal Township must be licensed. (Doc. 103, 17-18.) However, Mr. Bey
fails to counter Magistrate Judge Mehalchick’s legal conclusion that there is no private right
of action under Pennsylvania law to enforce DOH regulations and that Pennsylvania and
its officials are immune from suit pursuant to the Eleventh Amendment. (Doc. 98, 23-24.)
Therefore, I will overrule Mr. Bey’s objection, adopt Magistrate Judge Mehalchick’s legal
reasoning and recommendation and grant Defendants’ motion for summary judgment on
Mr. Bey’s Pennsylvania state law claims.
Mr. Bey’s final objection alleges that the courts and Defendants fail to address his
claim that “Defendants have no jurisdiction to detain him illegally. (Doc. 103, 18.) However,
persons in custody pursuant to the judgment of a state court seeking federal relief from their
conviction must file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This
action was not filed pursuant to 28 U.S.C. § 2254, therefore, Mr. Bey’s objection is
overruled.
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Accordingly, IT IS HEREBY ORDERED that:
(1)

Magistrate Judge Mehalchick’s Report and Recommendation (Doc. 98 ) is
ADOPTED.

(2)

Charles Williams Bey’s Objections (Doc. 103 ) are OVERRULED;

(3)

Defendants’ Motion for Summary Judgment (Doc. 67) is GRANTED in
part and DENIED in part;
(a)

Defendants’ motion for summary judgment on Charles Williams Bey’s
Establishment Clause claims against Defendants Linda Chismar and
Michael Vivian is DENIED;

(b)

Defendants’ motion for summary judgment on Charles Williams Bey’s
remaining claims is GRANTED;

(4)

Charles Williams Bey’s Motion for Summary Judgment (Doc. 60) is DENIED;

(5)

The Clerk of Court is directed to terminate the following Defendants: Dorina
Varner; David Varano; Mike Miller; Ms. Pyar; Jeffrey Beard; Catherine McVey;
the Pennsylvania Board of Probation and Parole; and the Pennsylvania
Department of Health, Drug and Alcohol Programs;

(6)

The matter is remanded to Magistrate Judge Mehalchick for further
proceedings and the parties are permitted leave to file additional dispositive
motions as recommended by Magistrate Judge Mehalchick.

March 29, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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