McCain v. Wetzel et al

Filing 40

MEMORANDUM re REPORT AND RECOMMENDATIONS 36 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 5/11/17. (ma)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA AMIR HAKIM MCCAIN a/k/a JOHN : : MCCAIN, : : Plaintiff, : : v. : : JOHN E. WETZEL, et al., : : Defendant. Civil No. 3:14-cv-2141 Judge Sylvia H. Rambo Magistrate Judge Schwab MEMORANDUM Before the court is a report and recommendation filed by the magistrate judge in which she recommends that Petitioner Amir McCain’s (“McCain”) amended complaint filed under 42 U.S.C. § 1983 be dismissed for failure to state a claim. The magistrate judge screened the complaint pursuant to 28 U.S.C. § 1915A and recommended that the amended complaint be dismissed with prejudice. I. Background McCain initially filed his action on November 7, 2014, naming numerous defendants from the Pennsylvania Department of Corrections, SCI-Forest, and the Pennsylvania Board of Probation and Parole. The original complaint alleged violations of the Fifth Amendment guarantee against self-incrimination and violations of the Ex Post Facto Clause of the United States Constitution. After the preliminary screening, the magistrate judge granted McCain leave to file an amended complaint as to his ex post facto claim only. (Doc. 28.) In disregard of that order, McCain’s amended complaint not only contained the names of the original defendants plus two additional defendants but it also continued to raise his Fifth Amendment claim and added a due process claim. McCain was convicted of rape in April 1991 and was sentenced to 21 to 60 years in jail. (Doc. 31.) He alleges certain deficiencies in his trial, conviction, sentencing, and denial of his parole. (See Doc. 36, p. 4.) The magistrate judge examined the allegations in the complaint in accordance with the standard for pleading as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250 (3d Cir. 1994), and Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997). The magistrate judge concluded that McCain failed to allege facts from which it could reasonably be inferred that the defendants violated the Fifth Amendment, the Ex Post Facto Clause, or the Due Process Clause of the United States Constitution. II. Discussion A. Ex Post Facto Clause The Ex Post Facto Clause of the United States Constitution generally prohibits Congress and the states from enacting any law that imposes a punishment for an act which is not punishable at the time it was committed, imposes additional punishment to that then prescribed, or deprives one charged with a crime of any 2 defense available according to the law at the time it was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). McCain claims that 42 Pa.C.S. § 9718.1 and Department of Corrections Policy DC-43, which mandate that convicted sex offenders participate in a sex offender treatment program, are ex post facto as they went into effect in 2000, well after he was convicted and sentenced for rape. The magistrate judge noted that there are two prongs to an ex post facto inquiry: “(1) whether there was a change in the law or policy which has been given retrospective effect, and (2) whether the offender was disadvantaged by the change.” (Doc. 36, p. 11 (citing Richardson v. Pa. Bd. of Prob. and Parole, 423 F.3d 282, 287-88 (3d Cir. 2005).) In Coles v. Folino, 2014 WL 5685547, at *4 (W.D. Pa. Nov. 4, 2014), the court held that a petitioner alleging an ex post facto claim must demonstrate a particularized disadvantage. The magistrate judge opined that McCain has failed to meet that burden. McCain argues in his objections that he had a significant likelihood of parole under the pre-1996 policy. Defendant appears to argue that he was denied a Megan’s Law sexually violent predator hearing once he was convicted of rape in December 1990. On January 28, 2010, McCain was advised by the Executive Director of the Sexual Offenders Adjustment Board that the board can only do an assessment 3 of him at the request of the Pennsylvania Board of Probation and Parole, and then only of the convicted offender and not of a victim or member of the jury. (Doc. 391.) An assessment was done in March 2011. McCain claims he should have been assessed after his convictions and before sentencing. (Doc. 31, p. 17 ¶ 61.) He claims if he had had such a hearing, he would have been paroled under the pre1996 policy instead of the 2002 policy. However, this is conclusory, as is his conclusion that the parole board paroled other inmates who were similarly situated. B. Fifth Amendment Claim The Third Circuit in Roman v. DiGuglielmo, 675 F.3d 204, 214 (3d Cir. 2012) concluded that denial of parole for the refusal to participate in a sex offender program requiring an admission of guilt outside of a criminal trial does not implicate the Fifth Amendment. Furthermore, the Notice of the Board Decision on November 3, 2011 (Doc. 31-1, Ex. 3) stated many reasons that supported the denial of parole. C. Due Process McCain raises issues concerning deficiencies associated with his trial, conviction and sentencing. The magistrate judge opined that these claims in essence challenge the validity of his conviction and sentence and are appropriately raised in a habeas corpus petition. This court agrees. 4 The report and recommendation will be adopted. An appropriate order will issue. s/Sylvia H. Rambo SYLVIA H. RAMBO United States District Judge Dated: May 11, 2017 5

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