McCain v. Wetzel et al
MEMORANDUM re REPORT AND RECOMMENDATIONS 36 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 5/11/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMIR HAKIM MCCAIN a/k/a JOHN :
JOHN E. WETZEL, et al.,
Civil No. 3:14-cv-2141
Judge Sylvia H. Rambo
Magistrate Judge Schwab
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.
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.
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
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
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
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.
The report and recommendation will be adopted. An appropriate order
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: May 11, 2017
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