Hankins v. Commonwealth of PA et al
Filing
115
MEMORANDUM (Order to follow as separate docket entry)In conclusion, based upon the undisputed record, there is no basis for a claim that Defendants Burke and McGinniss impeded or prevented the Plaintiff from seeking parole. Second, the Plaintiff was not prevented from seeking release on parole or being interviewed under any Parole Board policy or custom. Third, requiring RHU prisoners to submit a written parole application does not violate due process. Furthermore, there are no facts to suppo rt a claim that Hankins was not fairly considered for parole. On the contrary, competent evidence submitted shows that he failed to file a parole application as required.Based upon those factors the Remaining Commonwealth Defendants are entitled to entry of summary judgment. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 8/14/17. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT HANKINS,
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA,
ET AL.,
Defendants
:
:
:
:
:
:
:
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CIVIL NO. 3:CV-12-2554
(Judge Conaboy)
_________________________________________________________________
MEMORANDUM
Background
Robert Hankins initiated this pro se civil rights action
pursuant to 42 U.S.C. § 1983 while confined at the Rockview State
Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview).
The Plaintiff is no longer incarcerated and is residing in
Philadelphia, Pennsylvania.
By Memorandum and Order dated January 12, 2014, this Court
partially granted a motion to dismiss filed by Defendants
Commonwealth of Pennsylvania; the Pennsylvania Board of Probation
and Parole (Parole Board); ex-Pennsylvania Attorney General
Kathleen Kane and two Parole Board employees, Parole Supervisor
Burke and Parole Agent Norma McGinnis (Commonwealth Defendants).
See Doc. 31.
Specifically, dismissal was entered in favor of
former Attorney General Kane and the Commonwealth of Pennsylvania
and with respect to the damage claims against the Parole Board.
However, Plaintiff’s claims that he was improperly denied parole
consideration by Defendants Parole Board, Burke, and McGinnis were
allowed to proceed.
1
By Memorandum and Order dated March 24, 2014, the
Corrections Defendants’ motion to dismiss the complaint was
partially granted.1
See Doc. 37.
Dismissal was granted in favor
of Counselor Melissa Reed and with regards to the allegations of
conspiracy, mishandling of coal, and denial of parole review.
In
addition, Plaintiff’s informal request that this matter be
certified as a class action was denied.
However, the claim that
the Remaining Corrections Defendants were deliberately indifferent
to water quality related problems was allowed to proceed.
By Memorandum and Order dated March 3, 2015, summary
judgment was granted in favor of the remaining Corrections
Defendants.
Specifically, the following SCI-Rockview)officials :
Superintendent Marirosa Lamas; Counselor Melissa Reed; Deputy
Superintendent Jeffrey Horton; ex-Deputy Superintendent Robert
Marsh; Tim Miller; Superintendent Assistant Jeffrey Rackovan and
John/Jane Doe Maintenance Department employees.
See Doc. 73.
As a
result of the prior decisions of this Court, Plaintiff’s surviving
claim is his contention that he was improperly denied parole
consideration by Commonwealth Defendants Parole Board, Parole
Supervisor Burke, and Parole Agent McGinnis.
Presently pending is a motion seeking entry of summary
judgment by the Remaining Commonwealth Defendants.
See Doc. 102.
They also subsequently filed a suggestion of mootness.
112.
See Doc.
Plaintiff has opposed both filings.
1. The Memorandum reiterated that the claims that Hankins was
improperly denied parole consideration by Commonwealth Defendants
Parole Board, Burke, and McGinnis were also proceeding.
2
Discussion
Plaintiff’s remaining claim contends that while incarcerated
at SCI-Rockview in May 2011 he was told by his prison counselor
that he was due to be seen by the Parole Board.
¶ 5.
See Doc. 1, p. 4,
However, because of his ongoing placement in the prison’s
Restricted Housing Unit (RHU), “[i]t was made known to Plaintiff”
that he was precluded under Parole Board policy from being afforded
an interview.2
Id. at ¶ 6.
Hankins challenges that alleged Parole
Board policy and its implementation by the two remaining individual
Defendants on the grounds that Pennsylvania state inmates held in
the RHU, have a right to apply for parole upon the expiration of
their minimum sentence and to have that application fairly
considered.
Hankins also indicates that the two remaining
individual Commonwealth Defendants impeded his ability to submit
the required parole application.
Plaintiff seeks monetary damages
as well as injunctive relief.
Mootness
Remaining Defendants have submitted a Suggestion of Mootnes
which provides that the Plaintiff has now completed service of his
maximum sentence and has been released from incarceration.
They
conclude that in light of the Plaintiff’s release the remaining
claims should be dismissed.
Hankins acknowledges that he has
completed service of his maximum sentence and been released from
custody.
It is well recognized that the adjudicatory power of a
federal court depends upon "the continuing existence of a live and
2. Hankins indicates that at the time he had been housed in the
RHU for twelve (12) straight years. See id. at ¶ 6.
3
acute controversy."
Steffel v. Thompson, 415 U.S. 452, 459 (1974)
(emphasis in original).
"The rule in federal cases is that an
actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed."
omitted).
Id. at n.10 (citations
"Past exposure to illegal conduct is insufficient to
sustain a present case or controversy regarding injunctive relief
if unaccompanied by continuing, present adverse effects."
Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985) (citing
O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)); see also Gaeta
v. Gerlinski, Civil No. 3:CV-02-465, slip op. at p. 2 (M.D. Pa. May
17, 2002) (Vanaskie, C.J.).
For instance, an inmate's claim for injunctive and
declaratory relief fails to present a case or controversy once the
inmate has been transferred.
Wahl v. McIver, 773 F.2d 1169, 1173
(11th Cir. 1985) (citation omitted); see also Carter v. Thompson,
808 F. Supp. 1548, 1555 (M.D. Fla. 1992).
Plaintiff initiated this action when he was confined at
SCI-Rockview and he sought in part injunctive relief.
As
previously noted, Plaintiff contends that the Remaining Defendants
refused to provide him with a parole interview because he was being
housed in the RHU.
It is undisputed that Hankins has now completed
service of his sentence and has been released and there is no
indication that Plaintiff will be returned to state custody in the
foreseeable future.
Therefore, the Complaint to the extent that it
seeks injunctive relief based upon a failure to be granted parole
consideration and a parole interview is subject to dismissal on the
basis of mootness.
4
Furthermore, since the damages claims against Defendant
Parole Board were previously dismissed, summary judgment will be
granted in favor of that Defendant.
Summary Judgment
The two Remaining Defendants, Burke and McGinnis, argue that
they are entitled to entry of summary judgment because there is no
Parole Board policy or custom that prevents RHU prisoners from
seeking parole or being afforded a parole interview.
Burke and
McGinnis add that they did not take any action whatsoever to impede
Hankins’ ability to either apply or be fairly considered for
parole.
See Doc. 104, p. 5.
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 a judgment as a matter of law.”
Fed. R. Civ.
P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).
A factual dispute is “material” if it might affect the
outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
A factual dispute is
“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.
Id. at 248.
The court must resolve all doubts
as to the existence of a genuine issue of material fact in favor of
the non-moving party.
Saldana, 260 F.3d at 232; see also Reeder v.
Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
5
evidence of asserted facts.
Versarge v. Township of Clinton, 984
F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 324
Instead, it must “go beyond the pleadings and by [its] own
affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”
Id. (internal quotations omitted); see
also Saldana, 260 F.3d at 232 (citations omitted).
Summary
judgment should be granted where a 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.”
Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence
– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”
Saldana, 260 F.3d
at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Parole Consideration
Plaintiff contends that there was a Parole Board policy
which provided that RHU inmates are not provided with the
opportunity to seek parole or afforded a parole interview.
Remaining Defendants counter that based upon the undisputed facts,
no such policy existed and Hankins was not interviewed for parole
because he never submitted a required written parole application.
6
Remaining Defendants acknowledge that although some
Pennsylvania state inmates are automatically scheduled for parole
consideration upon completion of their minimum sentence, RHU
inmates are required to submit a written application under a Parole
Board policy.3
They add that although Plaintiff was sent a parole
application and told that to be considered for parole he needed to
complete and return the application to the Parole Board, he failed
to do so.
It is also pointed out that parole applications were
available to SCI-Rockview prisoners from the law library or via a
writeen request to staff.
Furthermore, the Remaining Defendants
note that although there is no legal obligation to provide parole
interviews, there is no Parole Board policy which precludes RHU
parole applicants from having a parole interview.
The United States Supreme Court in Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) announced that in limited circumstances
prisoners may challenge the constitutionality of state parole
policies in § 1983 actions.
the
Unlike the present case, in Wilkinson,
prisoner challenged a state parole board policy regarding
halfway house placement for sex offenders.
It is well-settled that “there is no constitutional or
inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence."
Greenholtz v. Inmates
of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979).
Likewise, the Pennsylvania parole statute does not create a liberty
interest in the right to be paroled.
Rodgers v. Parole Agent SCI-
3. There is no explanation offered as to why RHU prisoners are
treated differently. Of course, being housed in RHU would
obviously be a negative factor when assessing one’s parole
eligibility.
7
Frackville, Wech, 916 F. Supp. 474, 476-77 (E.D. Pa. 1996); McCrery
v. Mark, 823 F. Supp. 288, 294 (E.D. Pa. 1993); Thorpe v. Grillo,
80 Fed.Appx. 215, 2003 WL 22477890 (3d Cir. 2003)(because there is
no constitutional right to parole, any substantive due process
claim is foreclosed);
Perry v. Vaughn, 2005 WL 736633 at *10 (E.D.
Pa. March 31, 2005).
However, the United States Court of Appeals
for the Third Circuit has also held that:
[E]ven if a state statute does not give
rise to a liberty interest in parole
release under Greenholtz, once a state
institutes a parole system all prisoners
have a liberty interest flowing directly
from the due process clause in not being
denied parole for arbitrary or
constitutionally impermissible reasons.
Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980).
However, relief is only available if an applicant can show
that parole was arbitrarily denied based on some impermissible
reason such as "race, religion, or political beliefs." "
Id. at
236 n. 2.
In support of their summary judgment request, Remaining
Defendants have submitted an affidavit under penalty of perjury by
Defendant McGinnis, who describes herself as an eighteen (18) year
Parole Board employee who served as an SCI-Rockview parole agent
during the relevant time period underlying Plaintiff’s claims.
Doc. 103-1, Exhibit A.
See
She acknowledges that while some prisoners
are automatically considered for parole RHU inmates, such as
Hankins, had to fill out a standard written application form and
send it directly to the Parole Board.
8
The Defendant adds that although she does not specifically
recall the Plaintiff, RHU prisoners were able to obtain the parole
application form from either the SCI-Rockview law library or via a
written request slip.
McGinnis avers that she did not discourage
or impeded any offender from obtaining or submitting a parole
application.
See id. at ¶ 14.
The Defendant further notes that
the SCI-Rockview parole office would not receive a copy of any
application form submitted by Plaintiff as it would be sent
directly to the Parole Board.
McGinnis concludes by stating that
there is no Parole Board policy which precludes an RHU prisoner
from being interviewed for parole.
Also submitted for consideration is a declaration under
penalty of perjury by the Parole Board’s Director of Case
Management George Koontz.
See id. at Exhibit B.
Koontz state that
based upon his review of Parole Board records there is no
indication that Hankins ever sent a parole application to the
Parole Board.
Koontz likewise admits that RHU prisoners must
submit a written application directly to the Parole Board in order
to considered for parole.
Finally, Koontz points out that even an
informal parole application sent to the Parole Board is considered
and that inmates are not denied a parole interview based on the
fact that they are housed in the RHU.
In opposition, Plaintiff has provided copies of
institutional grievance records pertaining to another prisoner.
Those 2015 records do not concern either of the two Remaining
Defendants and appear to have been generated at another state
correctional facility (SCI-Huntingdon).
See Doc. 110-1, pp. 6-8.
The documents would support a claim that an inmate serving a term
9
of disciplinary custody at that facility is not eligible for a
parole eligibility interview until he leaves disciplinary custody.4
However, the relevance of the submission to the matter before this
Court is undermined by the fact that they concern an inmate at a
different correctional facility and his communications with
officials who are not defendants in this matter.
The documents
also do not clearly establish that the denial of an interview was
pursuant to a Parole Board policy but rather show only that
disciplinary custody inmates at another state correctional facility
were not being granted parole interviews.
As such, the evidentiary
submissions by Hankins do not sufficiently create an issue of
disputed material facts as to whether an SCI-Rockview RHU prisoner
such as Hankins is denied a parole interview under a Parole Board
policy or custom.
There is no assertion that either of the two Remaining
individual Defendants were responsible for creating any Parole
Board policy or custom pertaining to the state wide parole
eligibility treatment of RHU prisoners. See Rizzo v. Goode, 423
U.S. 362 (1976)(each named defendant must be shown, via the
complaint's allegations, to have been personally involved in the
events or occurrences which underlie a claim).
Second, Hankins did not have a liberty interest in parole
under Greenhotz and Rodgers.
Moreover, a Pennsylvania state
prisoner such as Hankins “has no right to pre-parole process” such
as a parole interview.
Hull v. Gillis, 2006 WL 2290412 * 10 (M.D.
4. The documents are nonetheless troubling given that the
Pennsylvania parole statute requires mandates that an inmate parole
applicant be interviewed by the Parole Board. See 61 Pa. C.S.A. §
6139(a)(6).
10
Pa. Aug. 8, 2006)(Kosik, J.).
Likewise, under Hull the fact that
as an RHU prisoner Hankins was required to submit a written parole
application, does not rise to the level of a constitutional
violation.
There have been no facts showing that this requirement
was arbitrary or based upon one of the impermissible factors
outlined by Block.
Third, Plaintiff does not claim that he was denied parole
consideration based on some impermissible reason such as his race,
religion, ethnicity, or political beliefs as contemplated by
Block.5
There is also no assertion that Hankins was treated
differently then other similarly situated RHU prisoners.
More importantly, while Plaintiff correctly notes that he
has a constitutional right to have his parole application fairly
considered, there is no evidence that he even properly submitted a
parole application as required under DOC policy.
IV(3).
See Doc. 1, ¶
Plaintiff at one point indicates that he was denied a
parole application form by Defendant McGinnis and was not informed
that he could obtain an application from the prison law library.
See Doc. 110, p. 2.
However, Plaintiff later indicates that he
actually submitted a parole application which was not acted upon.
See id.
Based upon the undisputed record, Plaintiff had multiple
means by which to obtain a parole application form.
In addition an
informal application would have been accepted by the Parole Board.
Any such form would not have been processed by either of the
5. In this vein, Plaintiff’s admission that he spent twelve (12)
years in the RHU would appear to be a negative factor for parole
consideration.
11
Remaining Defendants.
the Parole Board.
Rather, it would have been sent directly to
As such, Hankins’ vague assertion of
interference, which was not specifically raised in the complaint,
lacks merit.
Plaintiff has simply not come forward with any facts
which support a claim that either Burke or McGinniss impeded or
interfered with his initiation of a written application for parole.
Conclusion
In conclusion, based upon the undisputed record, there is no
basis for a claim that Defendants Burke and McGinniss impeded or
prevented the Plaintiff from seeking parole.
Second, the Plaintiff
was not prevented from seeking release on parole or being
interviewed under any Parole Board policy or custom.
Third,
requiring RHU prisoners to submit a written parole application does
not violate due process.
Furthermore, there are no facts to
support a claim that Hankins was not fairly considered for parole.
On the contrary, competent evidence submitted shows that he failed
to file a parole application as required.
Based upon those factors the Remaining Commonwealth
Defendants are entitled to entry of summary judgment.
appropriate Order will enter.
S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge
DATED: AUGUST 14, 2017
12
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