Costello v. PA Board of Probation and Parole

Filing 45

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Richard P. Conaboy on 8/21/15. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL J. COSTELLO,
Plaintiff
CIVIL NO. 3:CV-13-2224

v.
PENNSYLVANIA PAROLE BOARD,

FILED
RANTO

(Judge Conaboy)

Defendant

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2015
•

MEMORANDUM

Background

This pro se civil rights action was initiat

by Michael

J. Costello, an inmate presently confined at the Rockview State
Correctional Institution, Bellefonte, Pennsylvania (SCIRockview).

According to the Original Complaint, after being

granted parole on May 18, 2013, an all

d unconstitutional

policy of the Pennsylvania Board of Probation and Parole (Parole
Board) regarding sex offenders caused the rejection of
Plaintiff's home plan.
By Order dated July 2, 2014, Plaintiff was granted leave
to file an amended Complaint.

Doc. 27.

Named as sole

Defendant in the Amended Complaint (Doc. 30) is the Parole Board.
According to the Amended Complaint, on August 7, 2013 an
institutional Parole Board Officer informed the Plaintiff that
the New Person Center, Reading, Pennsylvania which had previously
him for residency in its program was now denying his
application.
1

Plaintiff also received a letter from Executive Director
John Rush of the New Person Center stating that "'Parole no
longer wants to accept Sex Offenders who are from outside the
area,
IV

especially where minors have been involved.'" Doc.

(2).

~

30,

Approximately a week later, one of Plaintiff's relatives

informed him that Rush had indicated that the Berks County
District Attorney was on a "tirade about sex offenders from other
counties" coming to his county and staying.

Id. at

(3).

Plaintiff indicates that he has been the victim of discrimination
due to the nature of his crime."

See id. at Exhibit J.

He adds

that the Parole Board instructed the Executive Director of the
New Person Center to rescind his acceptance.

2

As relief Costello seeks his immediate release and
termination of any remaining sentence or parole time.
~

V.

See id.

at

He also requests an award of monetary damages
Presently pending is Defendant's motion to dismiss the

amended complaint.

See Doc.

35.

Also before the Court is

The Defendant states that Plaintiff pled guilty to
involuntary deviate sexual intercourse of a person less than 16
years old, corruption of minors, and indecent assault of a person
less that 16 years old.
On September 21, 2009, he was sentenced to
a 5 to 10 year term of imprisonment by the Court of Common Pleas of
Westmoreland County, Pennsylvania.
See Doc. 36, p. 2.
It is noted
that there is no specific allegation by Costello that he has
actually been granted parole subject to approval.
His claim appears to be solely premised upon the contents
of a letter he received from Executive Director Rush.
There is no
specific policy of the Parole Board referenced in the Amended
Complaint.
Rather, Plaintiff claims that the parole officials in
Reading reacting to pressure from the Berks County District
Attorney directed Rush to rescind the acceptance of Plaintiff into
the facility.
2

Plaintiff's motion see

ng leave to fi

a second amended

Doc. 44.

complaint.

Discussion
Motion To Amend

Plaintiff asks that he be allowed to file a second amended
complaint because

recently discovered the need to state the

specific names of the specific officers of the Parole Department
of Reading Penns

vania.

Costello also

to raise supplemental claims

~g

cates that he wishes
retaliatory conduct which

he has received from SCI-Rockview offi

als for

this

1

action

M.D. Pa. Local Rule 7.5

It is initially noted
requires that a party who files a

rial motion submit a brief

of said motion within fourteen (14) days of

in s

If a supporting brief is not timely filed,

filed with the court.

d to be wi

"such motion shall be

/I

A

ew of the

t Plaintiff has failed to filed a brief in

docket establishes
support of

ts being

s motion.

Costello has also failed to file a

proposed second amended

aint.

Cons

ly, it is

ng motion to be deemed

appropriate for Plaintiff's
withdrawn.
Seco~d,

Costello cannot file a second amended complaint as
ously s

a matter of course because he p
complaint in response to an
the Defendant.

ea~lier

motion to

tted an amended
ss filed

Federal Rule of Civil Procedure 15(a).

3

Third, Plaintiff indicates that the partial purpose of his
second amended complaint is to named parole officials from
Reading Pennsylvania as Defendants.

However, if it is

Plaintiff's intention to replace the Parole Board as a defendant
with parole officials from Reading Pennsylvania, which is not
located within the confines of the Middle District of
Pennsylvania, any such civil rights action would be properly
initiated in the United States District Court for the Eastern
District of Pennsylvania.

3

Finally, Plaintiff indicates that his second amended
complaint would include supplemental claims consisting of
assertions of retaliatory misconduct against prison officials
which are not directly related to the Defendant, claims and facts
set forth in the Amended Complaint. Federal Rule of Civil
Procedure 15(d) provides:
(d) Supplemental Pleadings.
On motion and
reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event
that happened after the date of the pleading to be
supplemented ....

28 U.S.C. § 1391 (b) provides that: (b) "A civil action
wherein jurisdiction is not founded solely on diversity of
citizenship may,

except as otherwise provided by law,

be brought

only in (1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in
which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the
subject of the action is situated, or (3) a judicial district in
which any defendant may be found, if there is no district in which
the action may otherwise be brought."
Since Defendant Parole Board's main office is located within
the confines of the Middle District of Pennsylvania, the Amended
Complaint was properly brought in this district.
4

Supplemental complaints are not barred merely
forth new claims.
s

se they set

However, "when the matters alleged in a

lemental pleading have no relation to the claim originally

set forth and joinder will not promote judicial economy or the
ition of the di

speedy di

emental

allow the

e between the parties, refusal to

eading is entirely justified."

Miller, Federal Practice & Procedure: Civil
A supplemental plead

l506 at 551 (1971).

§

used for the

cannot

Wright &

e of trying

a new matter or a new cause of action.
leave to file a

Further, a motion

lemental

complaint is within the sound discretion of the t
Factors to be considered by the court in ma
dete

ng this

nation include the promotion of a justici

of the case, the delay or inconvenience to permitt
complaint, and

to supplement

(M.D. Pa. 1988).

e disposition
a plaintiff

resulting prejudice to the

other parties in the action.
542, 544

al court.

709 F. Supp.

It has been held that a court may

leave to file a supplemental complaint where the new proposed
pleading related only indirectly to the original complaint and
the new all
unrela ed

~o

cause of action arose from a body of facts
those

se~

forth in the original complaint.

rd.

To permit the filing of supplemental claims of ret

iation

by prison officials at this advanced juncture in the procee
cont

ngs

ning new facts and allegations not directly related to the

claims set forth in the Amended Complaint would be prejudicial
Accordingly, based on an

and conceivably cause undue de
5

ication of the factors announced in Nottingham,
motion to the extent that he see
will be denied.

to pursue

Plaintiff's

emental claims

The Plaintiff, if he so chooses, may reassert

his proposed supplemental claims in a new action.
Pursuant to the above

scussion, Plaintiff's motion

seeking leave to file a second amended Compla
dismiss

will be

without prejudice.

Motion To Dismiss

Defendant claims ent
grounds that:
of

§

(1)

lement to ent

of di

ssal on the

the Parole Board is not a person

1983 litigation and is immune from suit;

(2)

r pu

ses

Plaintiff's

claim for monetary damages is premature; and (3) his requests for
relief are not properly pursued under § 1983.
Standard of Review

Federal Rule of C

1

Procedure 12 (b)

(6)

prov

s for the

dismissal of complaints that fail to state a claim upon which
relief can be grant

When

ing on a mot

ss under

as true all factual

Rule 12 (bl (6), the court must "a
all

to di

tions in the complaint and all reasonable inferences that

can be drawn therefrom, and
to the

aintiff."

ew them in the light most favorable

~~~~~~~~,

489 F.3d 170, 177

2007) (quoting Evancho v. Fisher, 423 F.
2005) ).

347, 350

(3d Cir.

(3d Cir.

A plaintiff must present facts that, if true,

demonstrate a plausible right to relief.

Fed. R. Civ.

P.

8(a) (stating that the complaint should include "a short and plain
statement of the claim showing that the pleader is entitled to

6

relief") i Bell Atl. CorD. v. Twombly, 550 U.S. 544, 555

(2007).

This requirement "calls for enough facts to raise a reasonable
expectation
elements of the

discovery will reveal evi
aintiff's cause of action.

A compla
def

nce of" the necessary
. at 556.

must contain "more than an unadorned, thermed-me accusation." Ashcroft v. Iqbal,

-unlawfull

556 U.S. 662, 6 8 (2009). "Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements do not
I conc

suffice." Iabal, 556 U.S. at 678.

ions and the compla

supported by factual all
plausible claim for relief.
"Factual aIle

must state a

at 679.

See

ions must be enough to raise a right to

culative level, on t

relief above the

ions must be

assumption t

all

the allegations in the complaint are true (even if doubtful in
fact) ,"

Twombly, at 555,

The reviewing court must

ermine

whether the complaint "contain[s] either direct or inferential
allegations respecting all the material elements necessary to
sustain recovery under some

able

I theory,"

Id. at 562i

see also Phillips v. County of Allegheny, 515 F.3d 224, 234
Cir. 2008) (in order to surv
must allege in his c
expectation that

a motion to dismiss, a pIa

iff

int "enough facts to raise a reasonable

scovery will reveal evidence of the necessary

element[sJ" of a particular cause of action)
se pI

(3d

gs are to be const

liberally,

U.S. 519, 520 (19 2).

7

Additionally, pro
404

Parole Board

In order to state a viable civil rights claim he must make
a showing that the conduct complained of was committed by a
person acting under color of law and that said conduct deprived
him of a right, privil

, or

i~~unity

secured by the

Constitution or by a statute of the United States.

Cohen v. City

of Philadelphia, 736 F.2d 81, 83 (3d Cir. 1984).
The United States Supreme Court has ruled that a

§

1983

action brought against a "State and its Board of Corrections is
barred by the Eleventh Amendment unless [the State] has consented
to the filing of such a suit."
782

(1978).

Alabama v. Pugh,

438 U.S. 781,

The Court of Appeals for the Third Circuit has

likewise concluded that the Pennsylvania Board of Probation and
Parole could not be sued because "

is not a 'person' within the

meaning of Section 1983."

556 F.2d 231, 232

(3d Cir. 1977).
In

491 U.S. 58

(1989), the Supreme Court established that the State and arms of
the State, which have traditionally

oyed Eleventh Amendment

immunity" are not subject to civil rights liabili
496 U.S. 356, 365 (1990).

court.

in federal
After Will,

the Third Circuit Court of Appeals directed that in determining
whether a state agency is entitled to Eleventh Amendment
i~~unity,

a federal court should cons

r:

whether the state

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
442 U.S. I, 7 (1979).
4

8

would be responsible for the pa

of any j

rendered

against the agency; the source of the agency's

; and the

degree of autonomy enjoyed by the agency, as well as other
similar factors.
Aut~.,

Bolden v. Southeastern Pennsylvania Transp.

953 F.2d 807,

8~8

(3d Cir.

tant case,

In the

991)
of any judgment rendered

against the sole named Defendant, a Pennsylvania state agency,
would have to be paid out of the Pennsylvania state treasury.
Furthermore, Defendant Parole Board receives all of its funding
from

t~e

oy any measure

state and does not

autonomy.

Will, and

ear under

Therefore, it is

0

that the

Parole Board is not a "person" for the purpose of
therefore, not a properly named defendant.

§

1983 and,
y, the

Parole Board is not a properly named Defendant in this matter.
Monetary Damages

The

U.S.

477

Court in Heck v. Humphrey,

ted States S

(~994)

5~2

ruled that a constitutional cause of action for

damages does not accrue "for allegedly unconstitutional
conviction or

risonment, or for other harm caused by actions

whole unlawfulness would render a conviction or sentence
invalid," until

t~e

s that

plaintiff

rect appeal,

sentence has been reversed on
executive order, declared

"

ction or
by

lid by a state tribunal authorized

to make such determination, or called into question by a federal
s corpus."

court's issuance of a writ of
As
monetary

at 486-87.

ously noted, Costello in part seeks an award of
s on the grounds

t he was
9

rly denied

release to a facil

y in Reading,

out of the area sex offender.

Pennsylvania because he is an

Based on the nature of

Plaintiff's allegations, a finding in his favor would imply the
invalidity of his ongoing state con

nenent.

There is no

indication that Costello has successfully challenged the alleged
inproper denial of his hone plan.
Consequently, pursuant to Heck, the Amended Complaint to
the extent that it seeks an award of nonetary damages on the
basis of improper denial of his home plan is premature because he
cannot maintain such a cause of action until the basis for his
continued imprisonment is overturned.

Injunctive Relief
As relief, Costello seek his immediate release as well as
ternination of any renaining sentence or parole t

Doc.

It is especially noted that Plaintiff does not ask for

30, 'lI V.

a change in a Parole Board policy/procedure or even that his
request for placement in the New Person Center be reconsidered.
It is well-settled that inmates nay not use civil rights
actions to challenge the fact or duration of their confinement or
to seek earl
U.S.

475

(1975).

or speedier release.

Preiser v. Rodriquez,

411

The United States Court of Appeals for the

Third Circuit has similarly recognized that civil rights claims
see

ng release from confinement sounded in habeas corpus.

Georqevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir. 1985).
In Edwards v. Balisok,

520 U.S.

641,

646 (1997),

the

United States Supreme Court concluded that a civil rights claim
for declaratory relief "based on allegations ... that necessarily
10

imply the invalidity of the punishment imposed, is not
cognizable" in a civil rights action.

. at 646.

The United

States Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, 81 82
(2005) announced that prisoners may challe
constitutionality of state parole proce
seeking declaratory and injunct

relief.

the
ngs in

§

1983 actions

However, the Court

indicated that such actions could only be employed in cases where
success of the procedural challenges would not necessarily
require

iR~ediate

or speedier release for the prisoner.

The Supreme Court clearly stated

Wilkinson that

§

1983

could still not be employed "if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration."

1d. at *6.

Pursuant to the standards announced in
Plaintiff's present requests

Wilkinson, Georgevich and

to be released and for termination of any remaining sentence or
parole time are not properly raised in a civil rights complaint.
Accordingly, those requests will be dismissed without prejudice
to any right Costello may have to pursue said relief via a
federal habeas corpus petition.

CHARD P. CONABOY
United States District Jud e

DATED: AUGUST

.p(
7L,,/t , 2015

Plaintiff, if he so elects, may file a new civil rights
action
an appropriate district court against any individual
state parole official whom he feels created a unconstitutional
parole policy or acted in an unconstitutional manner by imposing
impermissible criteria on his parole eligibility.
11