VACTOR v. LONGSTRETH et al
Filing
54
Opinion and ORDER granting [ECF No. 40]Defendants' Motion to Dismiss for Failure to State a Claim for the reasons set forth in accompanying Opinion; Clerk shall mark this action closed. Signed by Magistrate Judge Maureen P. Kelly on 5/20/2013. A copy of the Opinion and Order has been mailed to Plaintiff this 20th day of May, 2013, at his address of record. (ndf )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN VACTOR,
)
Plaintiff,
)
)
vs.
) Civil Action No. 12-210
)
STEVEN LONGSTRETH, Unit Manager; ) Magistrate Judge Maureen P. Kelly
STEVEN BENCO; MS. PETRUS, Unit
)
Manager; MS. HAWKINBERRY, CCPM; ) Re: ECF No. 40
BRIAN COLEMAN, Supt.; DONALD
)
SEATON, DATS Counselor; MR. ERIC
)
ARMEL; MR. HAYNES; MS. RIGGIN;
)
MS. COLL; MR. MACKEY et al., PA
)
PAROLE BOARD, SUED IN THEIR
)
INDIVIDUAL AND OFFICIAL
)
CAPACITIES,
)
OPINION AND ORDER
KELLY, Magistrate Judge
Presently before the Court is a Motion to Dismiss [ECF No. 40] filed on behalf of all
Defendants seeking to dismiss Plaintiff’s Amended Complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the following reasons, the Motion to Dismiss is granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this prisoner civil rights action on February 21, 2012, against
Defendants Benco, Coleman, Hawkenberry, Longstreth, Petrus and Seaton, with an initial
Complaint alleging that he was wrongfully denied parole upon completing his minimum
sentence. [ECF No. 4, p. 3]. Construing Plaintiff’s initial Complaint broadly, Plaintiff asserted
substantive and procedural due process claims under the Eighth and Fourteenth Amendments to
1
the United States Constitution. Plaintiff also made reference to state law claims for defamation,
“administration act and mandamus.” [ECF No. 4, p. 3].
Defendants subsequently filed a
Motion to Dismiss Plaintiff’s Complaint for failure to state a claim. [ECF No. 19]. Plaintiff
responded by filing a first Amended Complaint [ECF No. 26], which was followed shortly by
Defendants’ renewed Motion to Dismiss. [ECF No. 27]. Plaintiff thereafter sought leave to file a
second Amended Complaint [ECF No. 29] (“Second Amended Complaint”), which, in light of
Plaintiff’s pro se status and in an abundance of leniency, was granted. [ECF No. 35]. Plaintiff’s
Second Amended Complaint [ECF No. 37] is the subject of the instant Motion to Dismiss.
Plaintiff appears to allege three claims: (1) substantive and procedural due process
violations with regard to the denial of parole under “Act 95”; (2) the issuance of a retaliatory
misconduct in violation of Plaintiff’s First Amendment rights; and (3) Eighth and Fourteenth
Amendment claims arising out of the failure of the Pennsylvania Board of Probation and Parole
(the “Parole Board”) to grant him an annual hearing regarding his eligibility for parole. In
support of his claims, Plaintiff has attached over 75 pages of exhibits, comprising requests to
staff members, communication with Department of Corrections employees, as well as his history
of grievances and misconducts relating to the claims at issue.
A. “Act 95” Denial of Parole Claim
Plaintiff’s first claim arises out of what he identifies as “Act 95,” a bill proposed by
Pennsylvania State Senator Stewart Greenleaf.1 [ECF No. 37, p. 7, ¶ 37]. Using this description,
the Court, as well as Defendants, understand Plaintiff to be alleging a claim under the 2010
1
See, http://senatorgreenleaf.com/legislative-update.htm, (“Greenleaf Bills Enacted – Act 95 of 2010 – Prison
Overcrowding, Sanctions for Parole Violators, Risk Assessment in Sentencing and Prison Oversight Boards - The
bill authorizes the parole board to grant parole to an inmate whose only requirement for parole is completion of
programming and provides for a graduated sanctioning system for parole violators”). This bill was subsequently
enacted into law in conjunction with the 2010 amendments to the Pennsylvania Board of Probation and Parole
statute (set forth at 61 P.S. § 6137, as amended by the Judiciary And Judicial Procedure--Prisons And Parole-Omnibus Amendments, 2010 Pa. Legis. Serv. Act 2010-95 (S.B. 1161) (West)).
2
amendments to the Pennsylvania Board of Probation and Parole statute (set forth at 61 P.S.
§ 6137, as amended by the Judiciary And Judicial Procedure--Prisons And Parole--Omnibus
Amendments, 2010 Pa. Legis. Serv. Act 2010-95 (S.B. 1161) (West)). Pursuant to the amended
terms of Section 6137:
(1) The board may parole subject to consideration of guidelines established under
42 Pa.C.S. § 2154.5 (relating to adoption of guidelines for parole) and may
release on parole any inmate to whom the power to parole is granted to the board
by this chapter, except an inmate condemned to death or serving life
imprisonment, whenever in its opinion:
(i) The best interests of the inmate justify or require that the inmate be paroled.
(ii) It does not appear that the interests of the Commonwealth will be injured by
the inmate's parole.
(2) Parole shall be subject in every instance to the Commonwealth's right to
immediately retake and hold in custody without further proceedings any parolee
charged after his parole with an additional offense until a determination can be
made whether to continue his parole status.
(3) The power to parole granted under this section to the board may not be
exercised in the board's discretion at any time before, but only after, the expiration
of the minimum term of imprisonment fixed by the court in its sentence or by the
Board of Pardons in a sentence which has been reduced by commutation.
(3.1)(i) Following the expiration of the inmate's minimum term of
imprisonment, if the primary reason for not paroling the inmate is the
inmate's inability to access and complete prescribed programming within the
correctional institution, the board may release the inmate on parole with the
condition that the inmate complete the prescribed programming while on
parole.
(ii) This paragraph shall not apply to offenders who are currently serving a term
of imprisonment for a crime of violence as defined in 42 Pa.C.S. § 9714 (relating
to sentences for second and subsequent offenses) or for a crime requiring
registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual
offenders).
61 Pa. Cons. Stat. Ann. § 6137 (West)(emphasis and italics added).
3
Plaintiff contends that after the expiration of his minimum period of incarceration, the
amendments to Act 95 require his release regardless of whether he has completed any prescribed
programming. Plaintiff alleges that he provided Defendants a copy of “Act 95,” requesting that
he be placed in an outpatient community program so that he could complete therapy required for
parole. Plaintiff alleges that his request was denied, as were all grievances arising out of the
denial, and that he was informed that he would “max out” his sentence. [ECF No. 4, pp. 3-4].
Plaintiff contends that this is a violation of his Fourteenth Amendment due process and liberty
rights.
B. First Amendment Retaliation Claim
Plaintiff also asserts a claim for a First Amendment violation arising out of alleged
retaliation he contends occurred as a result of filing the initial Complaint in this action. Plaintiff
alleges that on May 14, 2012, he was wrongfully issued a “misconduct” for violating a “nocontact separation order.” Plaintiff has attached the relevant documents regarding the misconduct
and its adjudication as exhibits to his Second Amended Complaint. [ECF No. 37-6].
The no-contact order was issued while he was incarcerated at SCI-Pittsburgh in July
2008, and forbid contact between Plaintiff and his daughter and her mother. The misconduct
form indicates that on May 14, 2012, SCI-Fayette security personnel were contacted by the
Victim Advocate Office with a report that on March 3, 2012, Plaintiff placed a four minute call
to his daughter and attempted 15 additional calls in violation of the no-contact order. [ECF No.
37-6, p.11]. Given the serious nature of the allegations, a misconduct was issued by Defendant
Haynes, and the resulting disciplinary hearing was presided over by Defendant Mackey. Id.
After assessing the credibility of the witnesses, Defendant Mackey determined that Plaintiff had
received notice of the no-contact order and therefore willfully violated the order. A penalty of
4
20 days in Disciplinary Custody was imposed. [ECF No. 37-6]. Plaintiff appealed the decision
of the Hearing Examiner to the Program Review Committee, comprised of Defendant
Hawkinberry, as well as Major Tammy Cesarino and Major Scott A. Nickelson. The Program
Review Committee determined that the evidence was sufficient to support Defendant Mackey’s
determination of guilt and therefore denied Plaintiff’s appeal. [ECF No. 37-6, p. 22]. Plaintiff
filed a second level appeal, which was reviewed by Defendant Armel. Defendant Armel denied
Plaintiff’s appeal, finding no errors in the adjudication below. [ECF No. 37-6, pp. 20-21].
Plaintiff alleges that the misconduct was issued on May 14, 2012, in retaliation for filing
his initial Complaint. Plaintiff contends that six Defendants were served with the original
Complaint on May 10, 2012, and they immediately retaliated against him by issuing the
misconduct. Plaintiff contends the misconduct was a “misuse of authority,” resulting in a denial
of due process, both with regard to notice of his underlying misconduct and with regard to the
denial of review for parole. [ECF No. 37, p. 7, ¶ 38].
In support of his retaliation claim, Plaintiff points to United States Marshal’s Form 285 Process Receipt and Return, which was filed as to each of the original Defendants in this action,
and attached as exhibits to his Second Amended Complaint. The forms indicate that the
Complaint was served by mail on May 16, 2012; two days after Plaintiff received his
misconduct. Plaintiff contends, however, that the forms were altered to make it appear that
service by mail was executed on May 16, 2012, rather than May 10, 2012 (two days before he
received his misconduct). [ECF No. 37, p. 7; ECF No. 47, p. 11]. The record reflects that
Plaintiff initially prepared the forms, with his name and address and the name and address of
each defendant to be served. Plaintiff then submitted the forms to the Court to be forwarded to
the United States Marshal’s Office. [ECF No. 37-8, pp. 6-11]. The docket confirms that on May
5
9, 2012, the Court received Plaintiff’s prepared forms along with service copies of the original
Complaint, and that it forwarded these items to the United States Marshal’s Office for service.
[ECF No. 9; and see, text entry dated 5/9/2012]. The bottom of the form was completed by the
United States Marshal’s designee and indicates that service was executed on May 16, 2012, as
shown in the “Remarks” section of the form and as reflected on the docket of this matter. [ECF
Nos. 11-16].
The date of mailing appears to have been changed; however, “the Form USM-285
is a five-copy form set designed as a control document for process served by a U.S. Marshal or
designee.”2 After initial preparation by a plaintiff, the forms, as internal control documents, are
processed and filed by the United States Marshal’s designee, and not by any party in an action.
Accordingly, the change in date was made by the United States Mashal’s designee and reflects
that the documents were mailed by her on May 16, 2012, two days after the issuance of the
misconduct.
C. Eighth and Fourteenth Amendment Claims Related to the Scheduling of Parole
Hearings
Plaintiff further alleges that his due process and Eighth Amendment rights have been
violated because parole hearings have not been scheduled annually. [ECF No. 37, p. 8].
Plaintiff’s parole history is set forth in the exhibits to his Complaint and is summarized by
Defendant Hawkinberry, a Pennsylvania Department of Corrections Parole Manager. Defendant
Hawkinberry indicated that Plaintiff’s access to hearings was dependent upon his completion of
available prescribed rehabilitation programs and/or by simply submitting a written request to the
appropriate office.
Inmate Vactor is grieving the fact that the Parole Board and the agents are
refusing to give him a Parole Hearing and is claiming that this is a violation of his
Constitutional Rights.
2
http://www.usmarshals.gov/process/usm285.htm
6
Inmate Vactor received a Board Action while at SCI-Graterford on December 8,
2010, which denied him parole and stated, “you are to be reviewed upon
completion of programming as indicated by recent DOC assessment.” Inmate
Vactor failed State Intermediate Punishment (SIP) at SCI-Pittsburgh in October
2008, after he was being staffed for removal and signed out of the program prior
to the vote sheet returning. He was then transferred to SCI-Graterford and was
placed in their TC (Jericho) on August 11, 2010. He was discharged from it on
November 12, 2010 for his unwillingness to change or be invested in his
recovery. He was then transferred to SCI-Fayette and was placed in the TC on
April 22, 2011. On June 17, 2011 he was placed on a Last Chance Intervention
for not using his headphones while using a musical instrument. In the evening on
the same night, he was observed playing his guitar and singing loudly. He was
subsequently discharged from the TC on June 20, 2011 for his actions. Inmate
Vactor has yet to reapply for the TC and is currently marked as refusing the
program. On August 8, 2012, inmate Vactor sent Institutional Agent, Ms. Riggin
an Inmate Request to Staff Member asking for an informal meeting and stating
that he is eligible for a parole hearing. She responded by stating that he needs to
complete the program and the Board will see him. As stated on his Board Action,
he may file an application for parole/reparole no sooner than 1 year after the date
the last decision denying parole/reparole was recorded. Since the Board Action is
over a year old, inmate Vactor is eligible to file an application requesting to be
seen, which can be done by writing to the address that is listed at the top of his
Board Action.
[ECF No. 37-8, 2; and see, 37-7, p. 16]. Based upon the documentation provided by Plaintiff as
attached to his Second Amended Complaint, it appears that Plaintiff’s last hearing was in 2010,
and that he has been informed repeatedly of the requirement that he successfully complete an
available rehabilitation program for future parole consideration. In addition, Plaintiff was
informed on September 12, 2011, December 12, 2011, and again on August 27, 2012, that if he
wanted a parole hearing, he needed to submit a written request to the address indicated on his
Board Action report. Id.; and see, ECF No. 37-7, p. 12. Plaintiff claims, however, that the
denial of an automatic annual hearing violates his constitutional rights.
Plaintiff seeks injunctive relief in the form an order requiring his immediate parole; a
declaratory judgment that his constitutional rights have been violated and compensatory and
punitive damages. [ECF No. 37, p. 9].
7
Defendants have filed a comprehensive Motion to Dismiss, raising a myriad of defenses
that appear on the face of the Second Amended Complaint and the exhibits attached thereto.
[ECF No. 40]. Plaintiff has filed a brief in opposition to the Motion to Dismiss. [ECF No. 47].
Defendants’ Motion to Dismiss the Second Amended Complaint is now ripe for review.
II.
STANDARD OF REVIEW
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the court must read the complaint in the light most favorable to the non-moving party and all
well-pleaded, material allegations in the complaint must be taken as true. See Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The court is bound to give the
plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded”
allegations of the complaint. In addition, the court is not limited to evaluating the complaint
alone; it can also consider documents attached to the complaint, matters of public record,
indisputably authentic documents, Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n. 2 (3d
Cir. 2006), documents that form the basis of a claim, Lum v. Bank of America, 361 F.3d 217,
221 n. 3 (3d Cir. 2004) (abrogation on other grounds recognized by In re Insurance Brokerage
Antitrust Litigation, 618 F.3d 300, 323 n. 22 (3d Cir. 2010)), and “documents whose contents are
alleged in the complaint and whose authenticity no party questions,” even though they “are not
physically attached to the pleading....” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548,
560 (3d Cir. 2002). Upon review, a complaint should be dismissed only if the alleged facts,
taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397–
98 (3d Cir. 2000).
The United States Supreme Court has recognized that “a plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
8
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In Twombly, the Supreme Court held that it would not
require a “heightened fact pleading of specifics,” but only “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570.
In 2009, the United States Supreme Court revisited the requirements for surviving a
12(b)(6) motion to dismiss in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Supreme
Court made clear that “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements [are] not suffic[ient]” to defeat a Rule 12(b)(6) motion to dismiss. Id.
at 678. Only “a complaint that states a plausible claim for relief [will] survive[ ] a motion to
dismiss.” Id. at 679.
In Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009), the United States
Court of Appeals for the Third Circuit provided a two-part test to determine whether a claim
survives a motion to dismiss. “First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for
relief.’ The plaintiff must show ‘the allegations of his or her complaints are plausible. Where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to
relief.’ [This] ‘plausibility’ determination will be ‘a context – specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556
U.S. at 679).
9
Several exhibits have been attached to the Plaintiff’s Second Amended Complaint.
However, consideration of these exhibits by the Court does not convert Defendants' motion to
dismiss for failure to state a claim into a motion for summary judgment. Pryor v. National
Collegiate Athletic Association, 288 F.3d 548, 560 (3d Cir. 2002) (“... certain matters outside the
body of the complaint itself, such as exhibits attached to the complaint and facts of which the
court will take judicial notice, will not trigger the conversion of an Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss to an Federal Rule of Civil Procedure 56 motion for
summary judgment”); and see, Spencer v. City of Philadelphia, No. 09-123, 2012 WL 1111141
(W.D. Pa. Apr. 2, 2012).
With particular relevance to Defendants’ Motion to Dismiss, Plaintiff has attached his
grievances and misconduct history to the Second Amended Complaint. Plaintiff is on notice of
the contents of each document and, therefore, the exhibits to the Second Amended Complaint
may be relied upon without converting the motion to dismiss into a motion for summary
judgment. Pension Ben. Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993).
In addition, 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).
III.
DISCUSSION
A. Plaintiff has failed to establish a cause of action for denial of parole.
1.
Requested relief in the form of immediate parole is not available.
Plaintiff has filed this action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983,
alleging the violation of his rights under the Constitution of the United States. Plaintiff alleges
10
that although he has not completed any of the programming prescribed by the Parole Board for
his release, he is entitled to parole pursuant to “Act 95” because he has served his minimum
sentence. Plaintiff alleges that the failure to release him violates his due process rights under the
Fourteenth Amendment. Plaintiff requests, inter alia, “that this Court … [i]ssue an Injunction
Ordering the Defendants to Immediately Arrange Parole Release AND to Expunge the PA
DOC’s Treatment Program.” [ECF No. 37, p. 9].
Initially it must be determined whether Plaintiff’s claim for release is cognizable under
Section 1983, for “challenges to parole decisions are frequently in the exclusive domain of
habeas corpus.” Perry v. Pennsylvania Dept. of Corr., 441 F. App'x 833, 836 (3d Cir.
2011)(citing, Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (holding that the appellant was
required to challenge the execution of his sentence, inclusive of an adverse denial of parole by
the Parole Board, under 28 U.S.C. § 2254)). Because the essence of Plaintiff’s claim for release
is a challenge to the duration of confinement, it is not the proper subject of a Section 1983 civil
rights action. See, Preiser v. Rodriguez, 411 U.S. 475, 484, 494, (1973) (habeas corpus is
available as an attack upon the legality of custody and the traditional function of the writ is to
secure release from illegal custody).
Further, under Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), a state prisoner cannot
make a cognizable claim under Section 1983 for an alleged unconstitutional conviction or to
attack the validity of incarceration unless the underlying conviction has been reversed. Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994) (citation omitted). In Wilkinson v. Dotson, 544 U.S.
74 (2005), the United States Supreme Court clarified the Heck rule, finding “that a state
prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to
11
conviction or internal prison proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Id. at 81–82. Thus, to the extent
Plaintiff requests release from prison in the form of immediate parole, that relief is not available
in a Section 1983 action and is Heck-barred. See Preiser, 411 U.S. at 484; and see Wilkinson,
544 U.S. at 81–82. Accordingly, Plaintiff’s claim for immediate parole is dismissed with
prejudice.
B. Plaintiff has failed to establish claims for the denial of procedural and
substantive due process.
Plaintiff’s claims for declaratory and compensatory relief arising out of allegations that
he was prevented from participating in a community based therapeutic program do not
necessarily demonstrate the invalidity of his continued confinement and therefore are not Heckbarred. These allegations may be interpreted as an attack on the conditions of his confinement, as
opposed to the duration of confinement, and therefore are amenable to relief pursuant to Section
1983. Frye v. McVey, 349 F. App’x 671, 674 (3d Cir. 2009). However, while these claims are
not barred by Heck, Plaintiff fails to present facts sufficient to state a plausible claim for which
relief may be obtained and therefore, Plaintiff’s due process claims arising out of the denial of
parole are dismissed.
Plaintiff alleges that Defendants denied him due process in violation of the Fourteenth
Amendment to the United States Constitution. The Due Process Clause provides that no state
shall “deprive any person of life, liberty, or property, without due process of law.” Procedural
due process is violated only if the inmate has a liberty interest in parole. However, the United
States Supreme Court has held “[t]here is no constitutional or inherent right of a convicted
person to be conditionally released before expiration of a valid sentence.” Greenholtz v. Inmates
of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). Accordingly, there is no right to parole
12
based in federal law; if Plaintiff has a protected liberty interest in the grant of parole, it must
derive from the Pennsylvania parole statute. Newman v. Beard, 617 F.3d 775, 783 (3d Cir.
2010) (citing, Sandin v. Conner, 515 U.S. 472, 483–84 (1995)).
Plaintiff cannot rely upon Pennsylvania law as a basis for relief. The relevant
Pennsylvania statute, 61 Pa. C.S.A. § 6137, does not create a mandatory expectation of parole
but, rather, it has been determined that release on parole is a matter of grace. Rogers v.
Pennyslvania Board of Probation and Parole, 724 A.2d 319 (Pa. 1999). See also, Burkett v.
Love, 89 F.3d 135, 139 (3d Cir. 1996) (parole is not a constitutionally protected liberty interest
under Pennsylvania law). While “states may under certain circumstances create liberty interests
which are protected by the Due Process Clause,” Sandin v. O’Connor, 515 U.S. 472 (1995), the
Pennsylvania Supreme Court has long held that the denial of parole does not implicate a
constitutionally protected liberty interest because parole is a discretionary matter, granted to a
prisoner who has demonstrated the ability to function in society as a law-abiding citizen. Coady
v. Vaughn, 770 A.2d 287 (Pa. 2001). The 2010 amendment to Section 6137 relied upon by the
Plaintiff does not alter the fundamentally discretionary nature of the grant of parole: “if the
primary reason for not paroling the inmate is the inmate’s inability to access and complete
prescribed programming within the correctional institution,” the parole board “may release the
inmate on parole” and “permit the inmate to complete the prescribed programming while on
parole.” 61 Pa.C.S.A. § 6137 3.1(1) (italics added). Absent any indication of legislative intent
to the contrary, the plain meaning of the word “may” implies discretion, United States v. Rogers,
461 U.S. 677, 706 (1983), and the language employed does not affect the Board’s authority to
determine whether an inmate is sufficiently rehabilitated such that he will be permitted to serve
13
the remainder of his sentence outside the prison walls on parole. Since there is no liberty
interest in parole, Plaintiff’s procedural due process claim is dismissed.
While his Second Amended Complaint is not a model of clarity, Plaintiff appears to also
claim that his substantive due process rights have been violated. “[T]he Due Process Clause
contains a substantive component that bars certain arbitrary, wrongful government actions
‘regardless of the procedures used to implement them.’” Zimmerman v. Burch, 494 U.S. 113,
125 (1990). Official conduct violates substantive due process if it “shocks the conscience…”
Newman v. Beard, 617 F.3d at 782. This standard “encompasses only the most egregious
official conduct.” Id.
Applying this standard, the United States Court of Appeals for the Third Circuit rejected
substantive due process challenges to state parole board decisions in Coady v. Vaughn, 251 F.3d
480, 487 (3d Cir. 2001), and Hunterson v. DiSabato, 308 F.3d 236, 246–47 (3d Cir. 2002). In
Coady, the prisoner insisted that the decision of the Pennsylvania Board of Probation and Parole
violated substantive due process because the board used constitutionally impermissible criteria to
deny parole, applied erroneous descriptions of the conduct underlying his offense, and
considered false information. The Court of Appeals rejected the prisoner’s claims on the grounds
that “federal courts are not authorized by the due process clause to second-guess parole boards
and the requirements of substantive due process are met if there is some basis for the challenged
decision.” Coady, 251 F.3d at 487 (emphasis added).
In Hunterson v. DiSabato, the United States Court of Appeals for the Third Circuit
reversed an order granting a writ of habeas corpus to a New Jersey inmate who claimed that a
parole board decision imposing a five-year future eligibility term was arbitrary, capricious, and
an unreasonable abuse of discretion. As the Court explained:
14
this type of constitutional challenge to a state [parole] proceeding is not easily
mounted. We have made clear that the federal courts, on habeas review, are not to
second-guess parole boards, and the requirements of substantive due process are
met if there is some basis for the challenged decision.... The relevant level of
arbitrariness required in order to find a substantive due process violation involves
not merely action that is unreasonable, but, rather, something more egregious,
which we have termed at times conscience shocking or deliberately indifferent.
Hunterson, 308 F.3d at 246–47 (citations and internal quotation marks omitted).
In this case, the exhibits attached to Plaintiff’s Second Amended Complaint are facially
sufficient to establish that the decision not to release Plaintiff was in complete accordance with
statutory directives. The provision relied upon by Plaintiff provides that release to a community
based program may occur “if the primary reason for not paroling the inmate is the inmate’s
inability to access and complete prescribed programming within the correctional institution.” 61
Pa.C.S. § 6137 3.1(1). However, the exhibits to Plaintiff’s Second Amended Complaint
establish that prescribed programming was available but that Plaintiff chose not to participate or,
indeed, failed program goals resulting in his removal. In addition, upon removal, Plaintiff was
permitted to obtain reinstatement upon application. See, e.g., ECF No. 37-1, pp. 4-5, 37-2, p. 2
(“[d]uring the approximate hours of 2200-2330 on 6/17/11. Inmate Vactor was observed to be
playing his guitar and singing loudly in his cell in violation of Block Rule #20 quiet time from
2100-600 and his Last Chance Intervention. Inmate discharged from Therapeutic Community on
6/20/11. Inmate informed that he could re-apply in 60 days by writing SATSS Benko”).
It is clear that Plaintiff presented officials with numerous legitimate reasons for
exercising discretion to deny release on parole to complete prescribed programming in his home
community. Furthermore, it is the Parole Board, and not Defendants, that renders the ultimate
determination of whether Plaintiff receives parole. As such, Plaintiff’s substantive due process
15
claim warrants dismissal on the merits. Because it is clear that leave to amend would be futile,
the claim is dismissed with prejudice.
B.
Plaintiff has failed to make out a cause of action for retaliation
1. First Amendment
Plaintiff next alleges that Defendants retaliated against him by filing a false misconduct
after learning that Plaintiff had commenced this lawsuit. It is well settled that retaliation for the
exercise of a constitutionally protected activity is itself a violation of rights secured by the
United States Constitution, which is actionable under Section 1983. Rauser v. Horn, 341 F.3d
330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990). However, the mere
allegation of retaliation is insufficient to establish such a claim. In order to prevail on a
retaliation claim, a plaintiff must show three things: (1) that the conduct in which he engaged
was constitutionally protected; (2) that he suffered “adverse action” at the hands of prison
officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in
the defendants' conduct. Rauser, 241 F.3d at 333 (adopting Mount Healthy Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977)).
The crucial third element, causation, requires a plaintiff to prove either: (1) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory action,
or (2) a pattern of antagonism coupled with timing to establish a causal link. See Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co.,
126 F.3d 494, 503–04 (3d Cir. 1997)). Once a plaintiff has made his prima facie case, the burden
then shifts to the defendant to prove by a preponderance of the evidence that he or she “would
have made the same decision absent the protected conduct for reasons reasonably related to
16
penological interest.” Rauser, 241 F.3d at 334 (incorporating Turner v. Safley, 482 U.S. 78, 89
(1987)); Verbanik v. Harlow, No. 09-448, 2012 WL 4378198 (W.D. Pa. Sept. 25, 2012).
Even assuming Plaintiff could satisfy the first two elements of a prima facie retaliation
claim, Plaintiff cannot establish the third required element, causation. To infer a causal
connection between his Complaint and the misconduct charged against him, Plaintiff alleges that
the Complaint was served on Defendants two days before the issuance of the misconduct.
However, the United States Marshal Form 285 prepared in conjunction with service of Plaintiff’s
Complaint, as well as the docket entries in this matter, reflect that the Complaint was not served
until two days after the misconduct was issued. [ECF No. 37-8, pp. 6-11; ECF Nos. 11-16].
Plaintiff’s protestation to the contrary, the docket carries a presumption of accuracy and the entry
of the date of service on May 16, 2012, is accepted by this Court as sufficiently trustworthy.
U.S. v. Helwig, 159 F.2d 616, 617 (3d Cir. 1947) (“It is fundamental that the record imports
verity.”); United States v. Aviles, 623 F.2d 1192, 1198 (7th Cir. 1980) (“the presumption of
regularity attends official acts of public officers and the courts presume that their official duties
have been discharged properly.”) Further, the form at issue is “a control document for process
served by a U.S. Marshal or designee” and is not executed or signed by Defendants or their
counsel but is exclusively maintained by the United States Marshal’s office. See, fn 1, supra.
Thus, Plaintiff cannot establish that the service of his initial Complaint, occurring two days after
the issuance of the misconduct, has a causal relationship upon which his retaliation claim may be
predicated.
The exhibits to Plaintiff’s Second Amended Complaint also establish that Defendants
would have made the same decision with regard to the misconduct for reasons related to a
legitimate penological interest. The exhibits confirm that the misconduct was issued to
17
discipline Plaintiff for his repeated failure to obey an outstanding “no contact” order. [ECF No.
37-6, pp. 11, 20-22].
The misconduct states:
[o]n May 14 2012 P Behr from the victim advocate office contacted FYT Security
office … on a no contact order issue[d] to inmate Vactor HM_0070 9ie;) ant
violation. Vactor hm-0070 was given a no contact order by SCIP office on July
15 2008. On the above date and time Vactor violation this order by placing a call
on 3/3/2012 to phone number [xxx-xxx-xxxx] 4 min in duration he also has (15)
other calls attempts in violotation of this order
[ECF No. 37-6, p. 11 (sic passim)]. Given the serious nature of the allegations, including
Plaintiff’s 15 other attempts to violate the no-contact order; the matter was referred to a Hearing
Examiner for disposition. Defendant Mackey determined that based upon the evidence presented
to him, the report prepared by Defendant Haynes was “more credible.” Defendant Mackey
therefore concluded that Plaintiff had received the no-contact order prior to making the telephone
calls at issue and was guilty of the charges. [ECF No. 37-6, p. 12]. Plaintiff’s first and second
level appeals were denied, with findings that Plaintiff had received and failed to obey the nocontact order, and that he failed to present any arguments of merit on appeal. [ECF No. 37-6, p.
20-22].
The finding of guilt is sufficient to show that Defendants’ issuance of the misconduct was
reasonably related to a legitimate penological interest and that Plaintiff would have been charged
regardless of any protected activity. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002)
(affirming summary judgment in favor of defendants on retaliation claim when “the quantum of
evidence” concerning the prisoner's misconduct showed that he would face disciplinary action
regardless of his protected activity), Rauser, 241 F.3d at 334; see also; Henderson v. Baird, 29
F.3d 464, 469 (8th Cir. 1994) (stating that a finding of “some evidence” in support of a
disciplinary determination “checkmates” a retaliation claim).
18
A review of the exhibits attached to Plaintiff’s Second Amended Complaint reveals that
Plaintiff cannot maintain a cause of action for the violation of his First Amendment rights based
upon alleged retaliation. Therefore, Plaintiff’s claim is dismissed. Further, because it is apparent
on the record that permitting amendment of his claim would be futile, Plaintiff’s First
Amendment retaliation claim is dismissed with prejudice.
2. Eighth and Fourteenth Amendment Claims
Plaintiff’s claims arising from the misconduct issued on May 14, 2012, also appear to
encompass allegations that his rights arising under the Eighth and Fourteenth Amendments have
been violated; first, because his classification was changed from a level 2 inmate to a level 4
inmate, which Plaintiff alleges was “cruel and unusual punishment striking down parole
eligibility,” and, second, that the use of legal standards of proof in a disciplinary hearing is
“unfair,” because the hearings are “one-sided.” [ECF No. 37, pp. 7-8].
With regard to Plaintiff’s Eighth Amendment claim, it is true that the Eighth Amendment
protects an inmate from being incarcerated beyond the term of his sentence. See, Sample v.
Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989). However, Plaintiff has not alleged that he has been
incarcerated beyond his maximum sentence, and therefore any change in his parole eligibility
status does not state a claim arising under the Eighth Amendment. Id.; see, also, Sharard v.
Berks County, No. 12-2393, 2012 WL 6838952 *8-9 (M.D. Pa. Dec. 6, 2012)(Eighth
Amendment claim dismissed with prejudice where denial of parole does not result in
incarceration beyond expiration of sentence). Because there is no constitutional right to be
conditionally released before the expiration of a valid sentence, and further amendment of his
complaint would be futile, Plaintiff’s Eighth Amendment claim arising out of the denial of parole
is dismissed with prejudice.
19
Plaintiff’s Fourteenth Amendment due process claim challenging the standard of proof
required at a misconduct hearing is also dismissed with prejudice. It is certainly true that
inmates have the right not to be deprived of a protected liberty interest without due process of
law. However, the threshold question presented by Plaintiff’s claim is whether the sanction
imposed, twenty-days of disciplinary confinement, impacted a constitutionally protected liberty
interest sufficient to invoke additional procedural protections. In this regard, the United States
Supreme Court has held that prison conditions deprive a prisoner of a protected liberty interest
when they result in “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483 (1995). Applying this test, the
Supreme Court concluded that the prisoner in Sandin did not have a protected liberty interest in
remaining free of disciplinary detention or segregation because his thirty-day disciplinary
detention, though punitive, did not present a dramatic departure from the basic conditions of his
sentence. In making this determination, the Supreme Court looked at two basic factors: (1) the
amount of time the prisoner was placed into disciplinary segregation; and (2) whether the
conditions of his confinement in disciplinary segregation were significantly more restrictive.
After reviewing these two factors, the Supreme Court concluded that thirty days in disciplinary
detention, which was similar in many respects to administrative custody, did not present the type
of atypical, significant deprivation in which a state might conceivably create a liberty interest.
In the case at issue, Plaintiff cannot show that his twenty-day disciplinary confinement
impacted a constitutionally protected liberty interest entitling him to additional due process
protection. Courts within this Circuit and the Commonwealth of Pennsylvania, applying Sandin
in various actions, have found no protected liberty interest implicated by placement in
disciplinary custody for longer amounts of time, and therefore no requirement that inmates be
20
afforded additional due process protection. See Smith v. Mensinger, 293 F.3d 641, 652 (3d Cir.
2003) (seven months disciplinary confinement did not implicate liberty interest); Griffin v.
Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (fifteen months in administrative custody did not
deprive plaintiff of a liberty interest); Young v. Beard, 227 F. App'x 138, 141 (3d Cir. 2007)
(holding that absent allegations showing that conditions in disciplinary confinement for 930 days
imposed atypical and significant hardship on an inmate in relation to ordinary incidents of prison
life, the inmate was not entitled to additional procedural protections during prison disciplinary
proceedings).
Accordingly, to the extent Plaintiff alleges that he was entitled to some additional
procedural due process protections with regard to his misconduct hearing, he has not and cannot
make out a Fourteenth Amendment claim. Plaintiff’s claim is dismissed with prejudice.
C. Plaintiff cannot establish a claim for the denial of parole hearings.
Plaintiff’s final claim arises out the alleged denial of annual parole hearings to determine
his eligibility for release. Plaintiff alleges that prison officials are objectively cruel and
deliberately indifferent to the “conditions of [his] confinement” because annual hearings have
not occurred. The Court construes these allegations as a denial of Plaintiff’s Eighth Amendment
rights. However, in the absence of allegations of incarceration beyond his maximum sentence,
Plaintiff has made no factual allegations which plausibly would lead to the conclusion that his
Eighth Amendment rights have been violated. Plaintiff’s Eighth Amendment claim regarding the
denial of parole will be dismissed. It is apparent from the exhibits attached to the Second
Amended Complaint that any attempt to cure the deficiencies in Plaintiff’s Eighth Amendment
claim would be futile; accordingly this dismissal is with prejudice.
21
Plaintiff also alleges that the failure to schedule an annual parole hearing constitutes a
denial of his procedural due process rights, presumably arising under the Fourteenth
Amendment. However, as set forth supra, procedural due process is violated only if the inmate
has a liberty interest in parole, which does not exist under federal constitutional or state law.
The Pennsylvania Supreme Court has considered the nature of a prisoner’s interest in parole
arising under state law and has held “[a] prisoner has only a right to apply for parole at the
expiration of his or her minimum term and to have that application considered by the Board. If
the Board denies the prisoner's application, the period of confinement can be the maximum
period of incarceration specified by the sentencing court, although the prisoner may continue to
reapply with the Board for parole. See 42 Pa.C.S. § 9756; 61 P.S. §§ 331.21-331.22.” Rogers v.
Pennsylvania Bd. of Prob. & Parole, 724 A.2d 319, 326 (Pa. 1999)(internal citations omitted).
See, also, Long v. Pennsylvania Bd. of Prob. & Parole, No. 08-0943, 2009 WL 249468 (M.D.
Pa. Feb. 2, 2009) (because there is no constitutional or inherent right of a convicted person to be
conditionally released before expiration of a valid sentence, an inmate is entitled only to
consideration for parole).
Plaintiff does not allege that he properly submitted a renewed application for parole in the
time frame at issue. Indeed, as is made clear by the exhibits attached to his Second Amended
Complaint, after the 2010 denial of parole, Plaintiff failed to submit an application for parole,
even after repeatedly being instructed to do so. [ECF No. 37-8, p.2; and see, ECF No. 37-7, pp.
12, 16]. Accordingly, because a Section 1983 action must be predicated upon state action and
the record establishes that fault for the failure to conduct an annual parole hearing lies with
Plaintiff, his Fourteenth Amendment claim must fail. Because it is clear that it would be futile to
grant leave to amend, dismissal of this claim will be with prejudice.
22
D. Plaintiff cannot maintain a claim for supervisory liability or against
Defendants in their official capacities.
Defendants also seek dismissal of certain of Plaintiff’s claims on additional grounds, in
particular the immunity provided each of the Defendants pursuant to the Eleventh Amendment,
as well as the absence of any allegations of personal involvement on the part of Defendant
Coleman. These grounds will be briefly addressed.
As a general proposition, a suit by private parties seeking to impose a liability which
must be paid from public funds in a state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the state itself or by federal
statute. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment
protects states and their agencies and departments from suit in federal court regardless of the
type of relief sought. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100
(1984). Similarly, absent consent by a state, the Eleventh Amendment bars federal court suits for
money damages against state officers in their official capacities. See Kentucky v. Graham, 473
U.S. 159, 169 (1985). Section 1983 does not override a state's Eleventh Amendment immunity.
Quern v. Jordan, 440 U.S. 332 (1979).
In addition, neither states, nor governmental entities that are considered arms of the state
for Eleventh Amendment purposes, nor state officers sued in their official capacities for money
damages, are persons within the meaning of Section 1983. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 64, 70–71 and n. 10 (1989). For the foregoing reasons, all damages claims
against the Parole Board and against the individual defendants in their official capacities are
dismissed.
With regard to Plaintiff’s claims against the individual Defendants, federal civil rights
claims brought under Section 1983 cannot be premised on a theory of respondeat superior. Rode
23
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Rather, 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. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained by the United States
Court of Appeals for the Third Circuit in Rode:
A defendant in a civil rights action must have personal involvement in the alleged
wrongs.... [P]ersonal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made with appropriate
particularity.
Rode, 845 F.2d at 1207.
Defendants contend that Plaintiff’s claims against Defendant Coleman
arise solely from his supervisory capacity or as a result of receiving or responding to Plaintiff’s
complaints and, thus, are insufficient to state a claim.
Plaintiff’s only factual allegation with respect to Defendant Coleman is that on December
15, 2011, Plaintiff forwarded a letter to Defendant Coleman regarding the dismissal of Plaintiff’s
grievances to be paroled pursuant to “Act 95.” [ECF No. 37, p. 5, ¶ 27]. However, failure to
review or respond to a grievance is insufficient to establish personal involvement. See Rode, 845
F.2d at 1208; Simonton v. Tennis, 437 F. App'x 60, 62 (3d Cir. 2011) (“[A] prison official's
secondary review of an inmate's grievance or appeal is not sufficient to demonstrate the personal
involvement required to establish the deprivation of a constitutional right”); Brooks v. Beard,
167 F. App'x 923, 925 (3d Cir. 2006) (holding that allegations that prison officials and
administrators responded inappropriately, or failed to respond to a prison grievance, did not
establish that the officials and administrators were involved in the underlying allegedly
unconstitutional conduct).
24
Because Defendant Coleman’s alleged involvement is insufficient to establish personal
involvement for liability under Section 1983, Plaintiff's Complaint is dismissed in its entirety
against him.3
IV. CONCLUSION
For the foregoing reasons, the Motion to Dismiss Second Amended Complaint [ECF No.
40] is granted. Furthermore, as it is clear that it would be futile to grant leave to amend,
dismissal of Plaintiff’s Second Amended Complaint is with prejudice.
ORDER
AND NOW, this 20th day of May, 2013, upon consideration of Defendants’ Motion to
Dismiss Amended Complaint, and the briefs filed in support and opposition thereto, it is
HEREBY ORDERED that the Motion to Dismiss is GRANTED.
It is FURTHER ORDERED that the Clerk shall mark this action closed.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, if the Plaintiff wishes to appeal from this Order he must do so within
3
Defendants have also raised qualified immunity, as well as the unavailability of mandamus, declaratory relief,
compensatory and punitive damages as additional grounds for dismissal of certain of Plaintiff’s claims. Given the
disposition of the Motion to Dismiss, these additional grounds for relief are not addressed and, therefore, are denied
without prejudice.
25
thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk
of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:
All counsel of record via CM/ECF
Steven Vactor
HM-0070
SCI Fayette
Box 9999
50 Overlook Drive
Labelle, PA 15450-0999
26
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