PERRY v. THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al
Filing
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ORDER granting 36 Motion to Dismiss, as more fully stated in the Order. Signed by Judge Cathy Bissoon on 5/24/2011. A copy of this order was mailed to Plaintiff at his address of record. (dad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL D. PERRY,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
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Civil Action No. 10-386
Magistrate Judge Bissoon
MEMORANDUM OPINION AND ORDER
For the reasons that follow, Defendants‟ Motion to Dismiss (Doc. 36) will be granted.
Michael D. Perry (“Plaintiff”) is a state prisoner currently incarcerated in the State
Correctional Institution at Mercer (“SCI-Mercer”), located in Mercer, Pennsylvania. Plaintiff
brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging deprivations
of his rights under First and Fourteenth Amendments to the Constitution of the United States, as
well as violations of various state laws and Department of Corrections (“DOC”).1 Compl. (Doc.
7) ¶¶ 85, 100, and 109. This suit commenced with this Court‟s receipt of Plaintiff‟s complaint,
without filing fee, on March 23, 2010.2 (Doc. 1). Leave to proceed in forma pauperis (“IFP”)
was granted on April 2, 2010. (Doc. 5). Plaintiff consented to the jurisdiction of a magistrate
1
Plaintiff also states that his rights under the Fifth, Sixth, and Eighth Amendments to the
Constitution of the United States Constitution were violated. Compl. (Doc. 7) at 1. However,
Plaintiff makes no factual allegations regarding these claims. Indeed beyond this bald assertion
on the introductory page of the complaint, Plaintiff makes no mention of these claims in the
complaint. Plaintiff clearly has failed to “nudge[] [these] claims across the line from conceivable
to plausible.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As such, they will
be dismissed.
2
Plaintiff signed the complaint on March 22, 2010. (Doc. 7) at 34.
1
judge on April 2, 2010. (Doc. 8). Defendants consented to the same on May 18, 2010. (Doc.
13).
Defendants filed a motion to dismiss on September 22, 2010. (Doc. 36). Plaintiff timely
responded to Defendants‟ motion on October 19, 2010. (Docs. 40 – 41). This issue is ripe for
disposition.
A. Plaintiff’s Factual Allegations and Legal Claims
Plaintiff‟s claims arise from a series of unfavorable parole recommendations from the
DOC, which were factors in four separate denials of parole. The following is a summary of
Plaintiff‟s factual allegations.
Plaintiff alleges that, in April of 1996, he pleaded guilty to various sex offenses “inflicted
against minor and adult victims.” (Doc. 7) ¶ 14. For these crimes, Plaintiff was sentenced to a
term of imprisonment of ten to 20 years. Id. ¶ 15. In spite of the necessity of completing a
required regimen of sex offender counseling in order to be eligible for parole, Plaintiff alleges
that such counseling was denied until roughly two years before his minimum release date. Id.
¶¶ 20, 24. Plaintiff further alleges that, prior to his first “staffing” for institutional parole
support, he had satisfactorily completed the sex offender programming required for parole. Id
¶ 25. He also alleges that he has, for years, voluntarily participated in formal and informal
therapy programs at the DOC, and has received years of ongoing sex offender therapy after he
completed the above-mentioned programming. Id. ¶¶ 25 – 26. Plaintiff also alleges that, during
the first ten years of his incarceration, he was a model inmate. Id. ¶ 26.
On November 28, 2005, while he was housed at the State Correctional Institution at
Chester (“SCI-Chester”), Plaintiff appeared before DOC officials for a “staffing” regarding
2
support for parole. Id. ¶ 29. He was informed on December 5, 2005, that he did not receive
institutional support for parole. Id. ¶ 30. When he sent a request to Defendant Dragovich asking
why his staffing was denied, Defendant allegedly responded that “Plaintiff displayed a
condescending attitude during his staffing . . . [and that] the serious nature of Plaintiff‟s offense
and criminal pattern also was a deciding factor.” Id. ¶ 32. Plaintiff filed a grievance concerning
the issue, which was denied at the initial level by Defendant Bivins. Id. ¶ 35. Plaintiff appealed
the initial denial, which was affirmed by Defendant Sunshine. Id. ¶ 36. Defendant Burks denied
Plaintiff‟s final appeal. Id. ¶ 37. On March 24, 2006, the Pennsylvania Board of Probation and
Parole (“PBPP” or “Board”) denied Plaintiff‟s request for parole. Id. ¶ 38. Listed as reasons for
the Board‟s unfavorable determination were: (1) “[t]he negative recommendations made by the
[DOC;]” (2) [r]eports, evaluations, and assessments concerning [Plaintiff‟s] mental behavior,
condition, and history that reflects ongoing risk to the community[;]” and (3) “[Plaintiff‟s] need
to participate in and complete additional institutional Sex Offender Programs.” Id. ¶ 38.
After the first denial of parole, Plaintiff transferred to SCI-Mercer. In November of
2006, the staff of that institution voted against recommending Plaintiff for parole. Id. ¶ 44.
Plaintiff alleges that this result was based on the severity of his crimes. Id. ¶ 48. Defendant
Stowitzkey, at that time the superintendent of SCI-Mercer, informed Plaintiff that “[he] needs
more therapy,” and asserted that “Plaintiff still fantasizes about his crimes.” Id. ¶ 45. Plaintiff
avers that he does not fantasize about his crimes. Id. On May 21, 2007, the PBPP once again
denied Plaintiff‟s application for parole. Id. ¶ 46. As bases for this denial, the Board cited the
three concerns raised in their response to Plaintiff‟s first parole application. They also added:
(1) “[Plaintiff‟s] minimization of the nature and circumstances of the offenses committed[;]” and
(2) “[Plaintiff‟s] interview with the hearing examiner and or board member.” Id. ¶ 46.
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Plaintiff was staffed for parole a third time on January of 2008. Id. ¶ 49. Once again, his
application did not receive support from prison staff. Id. ¶ 50. Again, citing a negative DOC
recommendation, the PBPP denied Plaintiff parole on May 22, 2008. Id. ¶ 54. Plaintiff alleges
that the Board‟s reasons were: (1) “The negative recommendation made by the [DOC;]” and
(2) “[r]eports, evaluations and assessments concerning [Plaintiff‟s] mental and behavior
condition and history that reflects ongoing risk to the community.” Id. The Board further
indicated that it would review whether Plaintiff had completed the DOC‟s “prescriptive program
plans” at Plaintiff‟s next parole hearing. Id. ¶ 55.
Plaintiff transferred to SCI-Pittsburgh, and was staffed for a fourth time on
March 13, 2009. Once again he failed to receive DOC support. Id. ¶¶ 72 – 73. Plaintiff grieved
this result. Id. ¶ 74. Plaintiff alleges that he did not receive a complete answer at the initial
level, and thus appealed to the Defendant Chamberlain, the superintendent. Defendant
Chamberlain allegedly responded that, inter alia, Plaintiff had a “sense of entitlement,” and that
she was not convinced that Plaintiff was no longer a threat to the community. Id. ¶ 78.
Additionally, she allegedly opined that Plaintiff‟s “perceived right to release outweighs any
remorse experienced.” Id. Defendant Varner allegedly addressed Plaintiff‟s final appeal to the
denial of this grievance. Id. ¶ 81. On July 24, 2009, the PBPP denied Plaintiff‟s request for
parole. Id. ¶ 82. The Board‟s reasons were as follows: (1) “[Plaintiff‟s] risk and needs
assessment indicating [his] level of risk to the community[;]” (2) “[t]he negative
recommendation made by the [DOC;]” (3) “[r]eports, evaluations and assessments/level of risk
indicates [Plaintiff‟s] risk to the community[;]” (4) “[Plaintff‟s] failure to demonstrate
motivation for success[;]” and (5) “[Plaintiff‟s] lack of remorse for the offenses committed.” Id.
Additionally, the PBPP indicated that, at Plaintiff‟s next parole interview, it would consider
4
“[w]hether [Plaintiff has] successfully completed a treatment program for Sex Offender Program
Aftercare.” Id.
Plaintiff claims that Defendants‟ actions with respect to the formulation of their
recommendations to the PBPP violated the Due Process and Equal Protections clauses of the
Fourteenth Amendment, as well as Pennsylvania state law. Id. ¶¶ 87, 100. He also claims that,
to the extent that their recommendations are based on his alleged need for additional therapy, his
Fourteenth Amendment rights were violated due to the lack of options for formal sex offender
therapy available to him prior to 2004. Id. ¶ 100. Finally, he alleges that Defendants retaliated
against Plaintiff‟s filing of his grievance in 2009 by accusing him of being “arrogant,
condescending, unremorseful, entitled, and needing more therapy.” Id. ¶ 106. Plaintiff seeks
damages, as well as declaratory and injunctive relief.
B. Standard of Review
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the
complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true,
no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim
to relief is “conceivable,” because a plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S.
, 129 S.Ct. 1937, 1949 (2009). A court need not accept inferences drawn by
a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.
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Emp.s‟ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004). Nor must a court accept
legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Furthermore, it is
not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not
alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.”
Assoc.‟d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S.
519, 526 (1983).
When ruling on a 12(b)(6) motion, a court may take into consideration information in
addition to the complaint, such as “matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). Factual allegations within documents described
or identified in the complaint also may be considered if the plaintiff‟s claims are based upon
those documents. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993). (citations omitted). Moreover, a district court may consider indisputably authentic
documents without converting a motion to dismiss into a motion for summary judgment. Spruill
v. Gillis, 372 F.3d 218, 223 (3d Cir.2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997).
Finally, if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or futile. Alston v. Parker,
363 F.3d 229, 235 (3d Cir. 2004).
C.
Analysis
In order for a claim to be cognizable under 42 U.S.C. § 1983, a plaintiff must meet two
threshold requirements. First, the alleged misconduct giving rise to the cause of action must
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have been committed by a person acting under color of state law; and second, the defendants‟
conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981),
(overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330 – 331 (1986)).
1. Due Process Claims
a. Substantive Due Process
“[T]he Due Process Clause contains a substantive component that bars certain arbitrary,
wrongful government actions „regardless of the procedures used to implement them.‟” Zinermon
v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels, 474 U.S. at 331). Official conduct violates
substantive due process if it “shocks the conscience . . . .” Newman v. Beard, 617 F.3d 775, 782
(3d Cir. 2010) (internal citations and quotes omitted). This standard “encompasses only the most
egregious official conduct.” Id. (internal citations and quotes omitted).
Prior to engaging in a substantive due process analysis of Plaintiff‟s claims, it is first
necessary to determine whether they are properly brought as substantive due process claims.
The Supreme Court has noted that it has “„always been reluctant to expand the concept of
substantive due process[.]‟” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). Consequently, it has established
the “more-specific provision rule.” Lewis, 523 U.S. at 843 – 44. Under this rule “„if a
constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process.‟” Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 259 – 60 (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)).
7
Here it is clear that the acts of which Plaintiff complains arise under the concept of
procedural due process. As such, his “substantive due process” claims should be evaluated under
this rule. However, even if Plaintiff‟s factual allegations gave rise to a claim that properly would
be brought under the theory of substantive due process, it still must be dismissed. This is
because this Court can discern nothing in Defendant‟ alleged actions that can be considered
conscience-shocking. The information with which Defendants are alleged to have provided the
Board appears to fall squarely within that which the PBPP is required, by statute, to consider
when assessing applications for parole. See 61 Pa.C.S.A. § 6135.3 Additionally, to the extent
that Plaintiff alleges that Defendants were not the proper source for this sort of information, the
Board was free to disregard the DOC‟s parole recommendation. Furthermore, it is the PBPP,
and not Defendants, who make the ultimate determination of whether Plaintiff receives parole.
As such, Plaintiff‟s substantive due process claim warrants dismissal on the merits. Furthermore,
as it is clear that leave to amend would be futile, dismissal will be with prejudice.
b. Procedural Due Process
Defendants argue that Plaintiff has failed to state a claim under the Due Process clause of
the Fourteenth Amendment because he cannot, as a matter of law, implicate a valid liberty
interest that Defendants‟ alleged acts and/or omissions violated.
In order to state a claim of a violation of procedural due process under the Due Process
Clause of the Fourteenth Amendment, Plaintiff must first set out facts that demonstrate that he
had a protected liberty interest that was impaired by the Defendants‟ actions. Hewitt v. Helms,
3
Pennsylvania currently is undertaking its first official codification of its statutes. Prior to
August 11, 2011, this statute appeared at 61 P.S. § 331.19.
8
459 U.S. 460 (1983) (overruled in part on other grounds by Sandin v. Conner 515 U.S. 472
(1995)); Morrissey v. Brewer, 408 U.S. 471 (1972). Once a court determines that the interest
asserted is protected by the Due Process Clause, the question then becomes what process is due
to protect it. Morrissey, 408 U.S. at 481.
As the Supreme Court of the United States has recognized on multiple occasions,
“prisoners do not shed all constitutional rights at the prison gate[.]” Sandin, 515 U.S. at 485
(citing Wolff v. McDonnell, 418 U.S. 539, 555 (1984)). However, “lawful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a retraction justified
by the considerations underlying our penal system.” Sandin, 515 U.S. at 485 (internal quotes
and citations omitted). One of these limitations, in the context of state laws and prison
regulations, is that a liberty interest is “generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484 (internal citations and
quotations omitted).
Under this standard, to the extent that Plaintiff asserts that Defendants have violated his
due process rights with respect to his parole application, his claim must fail as a matter of law. It
is well settled law that the Due Process Clause of the Fourteenth Amendment does not of its own
force create a liberty interest in parole. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987);
Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (stating that
“there is no constitutional or inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence” and distinguishing parole revocation, which implicates
a liberty interest, from parole release decisions, which do not). The same is true of Pennsylvania
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state law. See, e.g., Henry v. Bello, No. 92-4341, 1994 WL 27320, *1 (E.D.Pa. Feb. 1, 1994)
(“[h]owever, the Pennsylvania Probation and Parole Act gives the parole board considerable
discretion to decide whether to grant parole, 61 P.S. § 331.21; therefore, the Commonwealth has
not created a liberty interest in parole”4); Folk v. Atty. Gen. of Commonwealth of Pennsylvania,
424 F.Supp.2d 663, 670 – 71 (W.D.Pa. 2006); McFadden v. Lehman, 968 F.Supp. 1001, 1004
(M.D.Pa. 1997) (“Pennsylvania has not created an enforceable liberty interest in parole,
rehabilitative pre-release programs, or in therapy programs.”); Nieves v. Pennsylvania Bd. of
Probation and Parole, 995 A.2d 412, 418 (Pa.Cmwlth. 2010) (“a prisoner does not have a
protected liberty interest, or due process rights, in parole until the inmate is actually released on
parole”). Indeed, the courts of Pennsylvania have gone so far as to state that “parole is nothing
more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter
of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to
function as a law-abiding citizen in society.” Evans v. Pennsylvania Bd. of Probation and
Parole, 820 A.2d 904, 913 (Pa.Cmwlth. 2003) (internal citations and quotes omitted).
Consequently, Plaintiff‟s due process claims regarding the effect of Defendants‟ negative parole
recommendations will be dismissed. Additionally, as it is apparent that any attempt to cure the
deficiencies in Plaintiff‟s due process claims would be futile, this dismissal will be with
prejudice.
Additionally, Plaintiff argues that Defendants‟ actions denied him his “right” to an
“effective and meaningful parole consideration.” (Doc. 7) ¶ 86. To the extent that such a right
exists, Plaintiff has made no factual allegations which, if true, plausibly would lead to that
4
61 P.S. § 331.21 was repealed in August of 2009. This provision may now be found at
61 Pa.C.S.A. § 6137.
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conclusion. First, it is the Board, and not any of the named Defendants, that makes the ultimate
determination of whether Plaintiff will or will not receive parole. Even if, for the sake of
argument, this Court would credit Plaintiff‟s assertion that Defendants provided the PBPP with
information that was not required by the applicable parole statutes, the Board was free to
disregard it as they saw fit. Second, the information allegedly provided by Defendants to the
Board is exactly of the sort that they are required to consider under Pennsylvania law. See
61 Pa.C.S.A. §§ 6135 – 37.5 Thus, not only has Plaintiff failed to show the personal
involvement of Defendants in the allegedly deficient parole hearings, his allegations actually
support the conclusion that the PBPP provided him will all the process he was due. See
Newman, 617 F.3d at 783 – 84. Consequently, this claim will be dismissed. Furthermore, as it
is clear that the grant of leave to amend would be futile, dismissal will be with prejudice.
With respect to Plaintiff‟s claims that his constitutional rights were violated because
Defendants did not timely provide him with enough therapy to achieve parole, because Plaintiff
has no liberty interest in being released on parole prior to the completion of his full sentence, he
cannot challenge the procedures used to deny him parole under section 1983. Cf. Olim v.
Wakinekona, 461 U.S. 238, 250 (1983). Compare this to Leamer v. Fauver, in which the Court
of Appeals for the Third Circuit found that, under Sandin, New Jersey had statutorily created a
liberty interest in sex offender treatment, holding the “the state has created a scheme in which
therapy is both mandated and promised, and the Department of Corrections is without discretion
to decline the obligation.” 288 F.3d 532, 545 (3d Cir. 2002). Plaintiff has produced no authority
even implying that such an interest has been created by Pennsylvania law, and this Court was
unable to locate any in its independent research. Moreover, Plaintiff‟s own factual allegations
5
Formerly 61 P.S. §§ 331.19 – 331.21.
11
indicate that he has been able to participate in years of sex offender treatment. He explicitly
stated in his complaint that he was able to complete the DOC‟s Sex Offender Programming prior
to his first parole hearing in 2006, and was given special permission to participate in ongoing sex
offender therapy for multiple years after that (Doc. 7) ¶¶ 24 – 25, 56. Plaintiff also indicates that
he has taken part in numerous additional formal and informal therapy programs during his time
as an inmate. Id. ¶¶ 21 – 23, 41. As such, it is facially clear from his factual allegations that
Plaintiff is not entitled to relief on this claim, and that any leave to amend would be futile.
Consequently, Plaintiff‟s claims that Defendants violated his constitutional rights by allegedly
not providing him with timely access to therapy programs for the purposes of receiving parole
will be dismissed with prejudice.
2. Equal Protection Claims
The Equal Protection Clause of the Fourteenth Amendment exists to protect similarly
situated individuals from disparate treatment under the law or by some other state action.
Artway v. Att‟y Gen. of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996). The Equal Protection
Clause “is not a command that all persons be treated alike but, rather, „a direction that all persons
similarly situated should be treated alike.‟” Id. (quoting City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 439 (1985)). “Treatment of dissimilarly situated persons in a dissimilar
manner by the government does not violate the Equal Protection Clause.” Klinger v. Dep‟t of
Corrs., 31 F.3d 727, 731 (8th Cir.1994).
In order to state a claim under the Equal Protection Clause, a plaintiff must, as a threshold
matter, allege facts supporting the conclusion that:
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(1) the complaining person, compared with others similarly
situated, was selectively treated, and (2) the selective treatment
was motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, to punish or
inhibit the exercise of constitutional rights, or by a malicious or
bad faith intent to injure the person.
Sabatini v. Reinstein, No. 99-2393, 1999 WL 636667, at *2 (E.D.Pa. Aug. 20, 1999) (internal
quotations omitted); see also Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995). It is
incumbent on one asserting a Fourteenth Amendment equal protection claim to show the
existence of some purposeful discrimination. McClesky v. Kemp, 481 U.S. 279, 292 (1987).
Plaintiff does not allege that he is being treated differently from similarly situated
individuals because he is a member of a protected class or because he exercises some
constitutional right.6 Indeed, Plaintiff has not alleged any facts that, if true, would support the
conclusion that he is being treated differently from any similarly situated individual. To the
contrary, Plaintiff explicitly alleges that he is aware of other sex offenders who have been denied
parole because they needed more therapy – thus supporting the conclusion that he is, in fact, not
being treated differently by Defendants at all. Consequently, his allegations are insufficient to
support a claim for relief under the Equal Protection Clause. As it is clear from the face of the
complaint that any leave to amend this claim would be futile, it will be dismissed with prejudice.
3.
First Amendment Retaliation
“Government actions, which standing alone, do not violate the Constitution, may
nonetheless be constitutional torts if motivated in substantial part by a desire to punish an
6
Prisoners are not a suspect class for the purposes of Equal Protection. See, e.g., Abdul-Akbar
v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001).
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individual for exercise of a constitutional right.” Allah v. Seiverling, 229 F.3d 220, 224 – 25 (3d
Cir. 2000) (internal quotes and citation omitted); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003). In order to succeed on a claim of retaliation, a prisoner must demonstrate:
1) the conduct in which he was engaged was constitutionally
protected;
2) he suffered “adverse action” at the hands of prison officials;
and
3) his constitutionally protected conduct was a substantial or
motivating factor in the decisions to discipline him.
Carter v. McGrady, 292 F.3d 152, 157 – 58 (3d Cir. 2002) (quoting Rauser v. Horn, 241 F.3d
330, 333 (3d Cir. 2001)). To show an “adverse action,” Plaintiff must demonstrate that
Defendants‟ acts were “„sufficient to deter a person of ordinary firmness from exercising his
[constitutional] rights.‟” Allah v. Al-Hafeez, 208 F.Supp.2d 520, 535 (E.D. Pa. 2002) (quoting
Allah v. Seiverling, 229 F.3d at 225).
If a plaintiff proves the above elements, the burden shifts to the state actor to prove that it
would have taken the same action even without the unconstitutional factors. Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). In the prison context, the state actor
may rebut a plaintiff's claim by showing that his actions were motivated by legitimate
penological objectives. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Defendants argue that Plaintiff has failed to allege facts that, if true, would support a
prima facie case of retaliation. This is because Plaintiff‟s complaint, on its face, demonstrates
that the Plaintiff‟s constitutionally protected activity – i.e., the filing of his grievance with
respect to the denial of institutional support for his fourth parole application in 2009 – came after
Defendants recommended that he not seek parole. As such, any unflattering statements that
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Defendants provided in response to this grievance and its subsequent appeals could not have
been motivated by Plaintiff‟s constitutionally protected activity. (Doc. 37) at 19. In his
response, Plaintiff counters that the “adverse action” taken by Defendants was that they sent
these grievance responses to the PBPP. (Doc. 41) at 12.
Addressing Plaintiff‟s claim, as he narrows it in his response, this Court is unable to
conclude that the alleged delivery of grievance responses that characterize Plaintiff as being
“arrogant, condescending, unremorseful, entitled, and [in] need [of] more therapy[,]” (Doc. 7)
¶ 109, as being an “adverse action” for the purposes of a First Amendment retaliation analysis.
First, it is clear that, by emphasizing that Defendants allegedly made the grievance responses
available to the Board, Plaintiff‟s argument that it constitutes an adverse action is based on an
implicit assertion that these responses somehow influenced the Board to deny Plaintiff‟s fourth
parole application. This is extremely implausible, given that Defendants had already
recommended that Plaintiff not receive parole prior to the filing of the initial grievance in 2009.
Second, it is the Board, and not Defendants, who had the power to grant or deny parole to
Plaintiff.
Furthermore given that Plaintiff‟s “conduct . . . while in prison and his physical, mental
and behavioral condition and history, his history of family violence and his complete criminal
record” are relevant to the Board‟s determination, see 61 Pa.C.S.A § 6135(7), these responses
contain information that is germane to the disposition of Plaintiff‟s 2009 application. Thus, even
if the submission of these grievance responses could, in some way, be considered an “adverse
action,” there was a valid penological reason for the submission. Thus, Plaintiff‟s retaliation
15
claim must fail. Furthermore, as it is clear that it would be futile to grant leave to amend,
dismissal of this claim will be with prejudice. 7
4. State Law Claims
Plaintiff‟s complaints that Defendants failed to meet certain standards set forth in various
DOC guidelines or state law, if true, are not of constitutional significance, and thus, are not
cognizable under section 1983. “„In a suit under § 1983 the plaintiff must show a violation of
the Constitution or laws of the United States, not just a violation of state law. The two are not
the same.‟” Brown v. Dep‟t of Corrs., No. 05-347, 2007 WL 4322980 at *6 (W.D.Pa. Aug. 29,
2007) (Hay, Mag.J) (adopted by Brown v. Beard, No. 2:05cv347, 2007 WL 3274145, at *1
(W.D.Pa. Nov. 5, 2007) (Cercone, J.)) (quoting Gramenos v. Jewel Companies, Inc., 797 F.2d
432, 434 (7th Cir.1986)). See also Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“there is
no federal constitutional liberty interest in having state officers follow state law or prison
officials follow prison regulations”). Here, Defendants‟ alleged violations of their proper
functions under the law of Pennsylvania, or the policies of the DOC, create no basis on which
relief may be granted under section 1983.
To the extent that Plaintiff attempts to raise some as-yet-unnamed cause of action under
state law for Defendants‟ alleged acts or omission, jurisdiction is predicated under the principle
7
The above reasoning also is applicable to Plaintiff‟s claims to the extent that he bases them on
the grievances that he filed with respect to the denial of institutional support for his 2005 parole
application. Additionally, to the extent that Plaintiff alleges that the responses to his grievances
and appeals were, in and of themselves, violations of his constitutional rights, his claims must be
dismissed as a matter of law. Mere responses to administrative grievances are recognized not to
constitute the personal involvement necessary to state a claim under section 1983. See e.g.
Jefferson v. Wolfe, No. 04-44, 2006 WL 1947721, at *17 (W.D.Pa. July 11, 2006) (citing
Watkins v. Horn, No. CIV.A. 96-4129, 1997 WL 566080, at *4 (E.D.Pa. Sept. 5, 1997)).
16
of supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Under that statute, it is proper for a
court, possessing original jurisdiction over related claims, also to exercise jurisdiction over
“other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a). However, under circumstances where a court has dismissed all claims that
give it original jurisdiction, the court may choose to decline supplemental jurisdiction over the
remaining claims as well. 28 U.S.C. § 1367(c)(3). Accordingly, as all federal law claims will be
dismissed, this Court declines to extend jurisdiction over Plaintiff‟s state law claims, to the
extent that he makes them. Dismissal of those claims will be without prejudice to Plaintiff
raising them in state court.
AND NOW, this 24th day of May, 2011,
IT IS HEREBY ORDERED that Defendants‟ Motion to Dismiss (Doc. 36) is
GRANTED.
s/Cathy Bissoon
CATHY BISSOON
UNITED STATES MAGISTRATE JUDGE
cc:
MICHAEL D. PERRY
DA 3194
S.C.I Mercer
801 Butler Pike
Mercer, PA 16137
17
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