WANAMAKER v. D.O.C. et al

Filing 50

MEMORANDUM ORDER granting 43 Motion to Dismiss for Failure to State a Claim re 34 Second Amended Complaint. The Clerk shall mark this matter closed. Signed by Magistrate Judge Keith A. Pesto on 11/2/2022. (bgs)

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARREN L. WANAMAKER,
Plaintiff
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants

:
:
: Case No. 3:17-cv-133-KAP
:
:
:

Memorandum Order
An action for damages for imprisonment beyond the term of a sentence has been a
recognized cause of action in this circuit at least since Sample v. Diecks, 885 F.2d 1099,
1110 (3d Cir.1989), and Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993). The relevant
law is the Eighth Amendment's requirement that prison officials not be deliberately
indifferent to the risk of an unjustified deprivation of a person’s liberty. Sample v. Diecks,
supra, 885 F.2d at 1110. As the Court of Appeals explained:
To establish § 1983 liability in this context, a plaintiff must first demonstrate
that a prison official had knowledge of the prisoner's problem and thus of the risk
that unwarranted punishment was being, or would be, inflicted. Second, the plaintiff
must show that the official either failed to act or took only ineffectual action under
circumstances indicating that his or her response to the problem was a product of
deliberate indifference to the prisoner's plight. Finally, the plaintiff must
demonstrate a causal connection between the official's response to the problem and
the infliction of the unjustified detention.
Plaintiff Wanamaker contends that several employees of the Department of
Corrections are liable to him for failing to correct an error in his sentence computation
and thereby causing him to spend approximately five months in custody beyond the
expiration of his sentence.
Before getting to the meat of the case I dismiss Count 4, which claims that
defendants conspired to unlawfully confine Wanamaker due to racial animus. Second
Amended Complaint, ¶106. No alleged fact supports this assertion. Allegations of official
action “as a matter of policy, solely on account of [his] religion, race, and/or national
origin and for no legitimate penological interest,” are precisely what the Supreme Court
described as inadequate “formulaic recitation” of the elements of a claim in Ashcroft v.
Iqbal, 556 U.S. 662, 680-81 (2009). The conclusory nature of the allegation disentitles it
to the presumption of truth. Id. Defendants go on to argue that Wanamaker fails to state
a claim because their decisions were correct, but the claim fails at the outset under Iqbal.
Wanamaker was sentenced on September 4, 2007 by Judge Osborne of the
1

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 2 of 8

Delaware County Court of Common Pleas to an aggregate 3-23 month term of
imprisonment for unauthorized use of a motor vehicle and driving under the influence.
Commonwealth v. Wanamaker, CP-23-CR-777-2007. Wanamaker served 108 days of this
sentence and was released on parole. While on parole, Wanamaker committed crimes in
Philadelphia, was arrested on April 20, 2010, and was charged, inter alia, at
Commonwealth v. Wanamaker, CP-51-CR-5754-2010. On December 3, 2012,
Wanamaker was sentenced in CP-51-CR-5754-2010 to 2½-5 years imprisonment
followed by 5 years of probation for criminal trespass, with a concurrent 2-year term of
probation for criminal mischief. Wanamaker’s new offense was a violation of his Delaware
County parole, and he was resentenced at case no. 777 of 2007 on March 28, 2013 by
Judge Pagano of the Delaware County Court of Common Pleas to “full Back time 592 days
immediate parole.” This entry, on a form titled “Delaware County Court of Common Pleas
Certificate of Imposition of Judgement of Sentence,” noted that it was a “Gagnon II”
proceeding (i.e. one for a parole violation) and it was accompanied by the entry “This case
consecutive to Phila Case #5754-10” and notes that there were post-release conditions
that Wanamaker report to the county parole department, take safe driving classes, and
perform community service. According to the exhibits to the Second Amended Complaint
and according to the District Attorney of Delaware County in the habeas matter discussed
below, this sentence formally imposed a sentence determined at the Gagnon I hearing on
November 14, 2008 by a hearing officer Gregg Parker, Esquire. See Exhibit B to the
Second Amended Complaint. At the Gagnon II hearing before Judge Pagano, he orally
ordered something slightly different from what was in the written form: he orally
sentenced Wanamaker to “his full back time of 592 days with immediate parole,
consecutive to his minimum state sentence for Philadelphia 5754-10.” Gagnon II
Transcript at 25. The transcript is part of ECF no. 17 in the habeas matter. I take judicial
notice of this court’s own records in cases to which Wanamaker has been a party and the
authenticity of which is not challenged.
Wanamaker filed a petition for a writ of habeas corpus in January 2015 in the
Middle District of Pennsylvania that was transferred to this court at Wanamaker v.
Department of Corrections, Case no. 3:15-cv-15-KRG-CRE (W.D.Pa.). Wanamaker,
housed at S.C.I. Somerset, attached the Department of Corrections sentence computation
form, “Form DC16E -Sentence Status Summary” which reflected that by June 2013 the
DOC had added the Delaware County parole revocation sentence (592 days) to the
Philadelphia sentence, resulting in a parole eligibility date of October 2, 2010 and a
maximum sentence date of December 2, 2016, based on Wanamaker the five years of the
Philadelphia sentence from April 2010 to April 2015. Wanamaker claimed that the DOC
had improperly turned his 592-day sentence into a 3-23 month sentence. The respondent
moved to dismiss on the grounds, inter alia, that Wanamaker had not exhausted his state
court remedies by using at least one available remedy, a petition for a writ of habeas
corpus to the sentencing court (Judge Pagano). Wanamaker pursued this path: he filed a
2

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 3 of 8

Motion for Credit for Time Served (also referred to in places as a Petition for Writ [of]
Habeas Corpus) in Commonwealth v. Wanamaker, CP-23-CR-777-2007, on August 14,
2015. Magistrate Judge Eddy stayed the habeas petition in September 2015, then
dismissed it as moot in January 2016 because Judge Pagano vacated his sentencing order
on September 24, 2015, and Wanamaker was released from custody on September 26,
2015. Wanamaker had attempted to morph his stayed habeas petition into a complaint
for damages, but Magistrate Judge Eddy rejected that attempt.
Wanamaker filed three civil complaints for damages at Wanamaker v. Department
of Corrections, Case no. 3:15-cv-171-KRG-KAP (W.D.Pa.), Wanamaker v. Department of
Corrections, Case no. 3:15-cv-283-KRG-KAP (W.D.Pa.), and this case, Wanamaker v.
Department of Corrections, Case no. 3:17-cv-133-KAP (W.D.Pa.). The complaint at Case
no. 3:15-cv-171 was filed in the Eastern District of Pennsylvania and transferred here: in
June 2015 I recommended that it be dismissed under the rule in Heck v. Humphrey, 512
U.S. 477 (1994), because at that point Wanamaker’s claim had not accrued. Judge Gibson
agreed and dismissed the complaint in September 2015, only days before Wanamaker was
released. The following month Wanamaker filed the complaint at Case no. 3:15-cv-283
in the Eastern District of Pennsylvania, which again transferred the matter here: in
November 2015 I recommended that it be dismissed with leave to amend to allege a claim
of deliberate indifference. Wanamaker filed an amended complaint, but did not follow
through on providing directions for service, and in October 2016 I recommended that the
complaint be dismissed for lack of prosecution. Without objection, Judge Gibson
dismissed the complaint without prejudice in late October 2016. The following month,
Wanamaker sent correspondence titled “Notice of Apprisal” advising that he had been
homeless, had just received “Order,” and “wishes to proceed for he is destitute and
without home.” He closed with “please respond.”
In June 2017, Wanamaker filed a third complaint in the Eastern District of
Pennsylvania, and it was transferred here as the instant case. I screened the complaint
and recommended it be dismissed with leave to amend. ECF no. 7. Before the objections
were ruled on, Wanamaker filed an amended complaint in August 2018, which I screened
and found adequate to state a claim as to one defendant, Bloom. I ordered service on
Bloom pending a ruling on the adequacy of the complaint as to rest of the defendants.
Service on Bloom was protracted because Wanamaker had her first name wrong and
because of the government shutdown. Wanamaker was also imprisoned on a probation
violation of his Philadelphia sentence for some of this time. Finally, in February 2020
Wanamaker moved for and was granted appointment of counsel, who appeared by early
2021. After time to familiarize themselves with the matter, counsel filed a second
amended complaint, ECF no. 34, that was served on all defendants by early this year. The
defendants’ motion to dismiss followed, and the matter has been briefed. Both sides filed
consents to my jurisdiction in 2021 or 2022, making any further action on my
3

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 4 of 8

recommendation from July 2017 unnecessary.
To state a claim against any defendant, Fed.R.Civ.P. 8(a) requires a plaintiff to set
out a short and plain statement containing sufficient factual matter that if accepted as
true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In the Supreme Court’s words, plaintiff must allege enough facts in the
complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S.
at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Whether a complaint is screened sua sponte under the Prison Litigation Reform
Act or, as here, the defendants have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the courts use the same standard. See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir.2000). This standard is met “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. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)) This requires allegation of each defendant’s personal
involvement, either by describing the defendant's participation in the wrongful conduct
or the defendant’s actual knowledge of and acquiescence in the alleged wrongful conduct.
See Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir.
2015).
The first point to consider is that to state a claim Wanamaker must allege facts that
if proved would establish not only that the defendants erred in computing his sentence,
but they were also deliberately indifferent to that error. Even making an error of law that
is subsequently deemed to be “unreasonable” is not enough to be considered deliberate
indifference. Campbell v. Florian, 972 F.3d 385, 397 (4th Cir. 2020). Rejecting a claim
that a Department of Corrections’ attorney’s interpretation of South Carolina law that
lengthened Campbell’s time in prison was deliberately indifferent to Campbell’s right to
liberty because the interpretation was later overturned in court, the Fourth Circuit wrote:
An incorrect legal opinion often occurs without some negligent (much less
reckless) act or omission. In our adversarial legal system, roughly 50% of litigants
lose—and thus have pressed an incorrect legal opinion. Competent administrative
agencies and lower courts are often overturned despite careful and thoughtful legal
interpretations. Indeed, the South Carolina Administrative Law Court (an
independent body) first upheld Florian's reading of the Omnibus Act. And even at
the highest levels of the law, four colleagues at times share an “incorrect” or
“unreasonable” opinion. See Brett M. Kavanaugh, Fixing Statutory Interpretation,
129 HARV. L. REV. 2118, n.4 (2016) (listing recent “divides in statutory
interpretation cases”). An unreasonable outcome in that context cannot support an
inference that the dissenters were negligent or criminally reckless in their analysis.
Id., 972 F.3d 385, 397.
4

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 5 of 8

A second point is that government officials are shielded by qualified immunity
from liability for money damages when their conduct does not violate clearly established
legal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If official defendants
“reasonably but mistakenly conclude[]” that their conduct conformed to the law they are
entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). To be
liable an official must have “fair warning” that “specific acts were unconstitutional.”
Taylor v. Riojas, 141 S. Ct. 52, 53, 208 L. Ed. 2d 164 (2020)(per curiam).
Defendants make five arguments in support of dismissal. They first assert that the
relevant two year statute of limitations ran before the filing of the complaint. This is
incorrect. Under Heck v. Humphrey, Wanamaker’s claim accrued not when he claimed
that his confinement was wrongful, but when his release was obtained. One can quibble
whether that was the date of Judge Pagano’s order or the day he walked out of prison, but
both dates were in September 2015, Wanamaker’s complaint was filed in June 2017, and
Wanamaker filed no earlier complaints that were dismissed on the merits.
Defendants next assert that there is no claim against the Department of
Corrections. That is correct. A state is not a person that can be sued for a violation of civil
rights under Section 1983, Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), and
barring waiver or valid Congressional abrogation of immunity under the Eleventh
Amendment, states, state agencies, and individuals sued in their official capacities are
immune from suit for damages in federal court. See Pennsylvania Federation of
Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
Third, defendants assert there is no due process claim due to the more specific
provision rule. In part, they are correct. Wanamaker’s claim arises under a specific
guarantee of the Eighth Amendment, and where there is a textual source of protection
against governmental conduct in the Constitution, there is no duplicate claim under a
“substantive due process” theory. See DeLade v. Cargan, 972 F.3d 207, 210 (3d Cir. 2020);
Graham v. Connor, 490 U.S. 386, 395 (1989). Plaintiff’s counsel correctly note that
procedural due process claims are not subject to the more specific provision rule.
However, Wanamaker does not plead a viable procedural due process claim. What
counsel refer to as defendants’ failure to investigate and address Wanamaker’s
complaints about his sentence computation, Brief at 6, are elements of the established
Eighth Amendment claim and not a duplicate procedural due process claim.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) and its progeny hold that the
existence of a procedural due process claim requires consideration of 1) the private
interest that will be affected by the official action; 2) the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and 3) the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or
5

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 6 of 8

substitute procedural requirement would entail. Assuming for the moment that the
defendants’ were wrong in their computation of Wanamaker’s sentence, Wanamaker’s
experience- he obtained relief in approximately a month after bringing his plight to Judge
Pagano’s attention- makes it clear that there is a speedy remedy already in existence, in
addition to the action in the Commonwealth Court for a writ of mandamus that I have
previously discussed and that Magistrate Judge Eddy discussed in the habeas matter. If
some further remedy were called for, its novelty alone would provide the defendants with
the defense of qualified immunity to a damages suit. But the chief obstacle to a procedural
due process claim is that Wanamaker’s problem was with the substance of the defendants’
computation, not the procedure used to reach it. That procedure was simple: look at the
sentence, discard the part that was not valid under state law, and follow the result.
Wanamaker is aggrieved by the fact that the Department of Corrections did not follow
Judge Pagano’s probable intent, but he does not allege that there is any process, extant or
hypothetical, that would plausibly improve the sentence computation process. As the
Fourth Circuit discussed in Campbell v. Florian, to argue that deliberate indifference
exists because something “more” could have been done must “give us pause.” Id., 972 F.3d
at 398. The same applies to a due process claim. Suppose every one of the thousands (and
probably tens of thousands) sentence computations performed each year by the
Department of Corrections became an adversarial proceeding, would the addition of an
unrepresented inmate to the process add any expertise? Do we require counsel? Counsel
is already involved in the sentencing process, and if there is an ambiguity that might lead
to problems in sentence computation a defendant is guaranteed effective assistance of
counsel in the sentencing court and in the direct appeal. And as this case illustrates, the
Department of Corrections does not keep its sentence computation secret, so Wanamaker
had at least two pre-deprivation remedies: the motion he eventually filed with Judge
Pagano and an action in mandamus in the Commonwealth Court.
Fourth, defendants argue that on the pleadings, their computation of
Wanamaker’s sentence was correct. If their construction of Pennsylvania law is correct,
they could not be deliberately indifferent even if Judge Pagano later indicated what he
really meant by vacating Wanamaker’s sentence, because up to that day in September
2015, Wanamaker’s sentence was what Judge Pagano did impose in March 2013, not what
he meant to impose. The same problem arises in federal sentencing: a district judge
sentences a federal defendant to a federal sentence, after which a Common Pleas judge
sentences the defendant to a concurrent state sentence. When that defendant comes into
federal custody, regardless of the state court judge’s intent that the two sentences will be
concurrent, that intended sentence will certainly not be binding on the Bureau of Prisons.
Galloway v. Warden of F.C.I. Ft. Dix, 385 Fed.Appx. 59, 63 (3d Cir. 2010). The inmate
cannot change that by suing the prison officials.
Pennsylvania law is analogous. Under Pennsylvania law, sentences up to two years
6

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 7 of 8

imprisonment are “county sentences” served in county prison, and control over parole
decisions rests with the Court of Common Pleas. Sentences beyond two years are “state
sentences.” For sentences between two and five years, the defendant may be housed either
at a county prison or a Department of Corrections prison; for sentences greater than five
years the defendant must be housed in a DOC facility. 42 Pa.C.S.A.§ 9762. Control over
parole for all state sentences rests with the Pennsylvania Parole Board, formerly the
Pennsylvania Board of Probation and Parole. For state sentences, the Department of
Corrections computes the defendant’s aggregate sentence and custody credit to determine
when the defendant is eligible to be considered for parole. Consecutive sentences are
aggregated. If an aggregate sentence is a state sentence the Parole Board and not the
Common Pleas Court makes the decision to parole. Commonwealth v. Tilghman, 673 A.2d
898 (Pa.1996). Judge Pagano’s direction that Wanamaker be immediately paroled was a
legal nullity.
It is clear from the Gagnon II hearing that Judge Pagano was grasping for some
way to give Wanamaker an incentive to take some rehabilitative program while in custody
that would make him eligible for parole. He literally said: “someone help me out here so
I can put the correct sentence on there.” Gagnon II Transcript at 25. Judge Pagano’s use
of the word “minimum” in his oral sentence does not appear to have made it onto the
written form. According to Melissa Myers, who averred in the habeas proceeding that she
computed Wanamaker’s sentence, see ECF 27-1 in the habeas matter, that did not make
any difference because once the word “consecutive” was used, the DOC aggregates the
sentences, and if the aggregate maximum is over two years the judge has no control over
parole. Wanamaker has argued for the last seven years that Judge Pagano’s words
“immediate parole” meant that he should have done no additional time for the Delaware
County Parole violation and should have been released when he served the Philadelphia
sentence in full. Having read the Gagnon II transcript, I seriously doubt Judge Pagano
intended that. But what is legally certain for purposes of a motion to dismiss is that if
Judge Pagano intended that, he did not do it properly. He could not both sentence
Wanamaker to a consecutive sentence and retain control over Wanamaker’s parole
eligibility. When confronted with that fact in September 2015, Judge Pagano opted for
eliminating the sentence he imposed in March 2013. But the defendants are not and were
not deliberately indifferent to Wanamaker’s rights, because their interpretation of Judge
Pagano’s March 2013 sentence was correct under Pennsylvania law.
Sample v. Diecks has been limited to those cases where prison officials
substantially refused to investigate a credible claim of sentence expiration or
miscalculation. That did not happen here: prison officials interpreted Judge Pagano’s
sentence, and did so correctly. But if the defendants had interpreted Judge Pagano’s
sentence incorrectly, Moore v. Tartler and Campbell v. Florian illustrate that the Eighth
Amendment does not give inmates a cause of action for incorrect interpretations of state
7

Case 3:17-cv-00133-KAP Document 50 Filed 11/02/22 Page 8 of 8

law.
Finally, Wanamaker’s state law claim for false imprisonment against the individual
defendants is barred by their immunity under 1 Pa.C.S.§ 2310: Commonwealth officials
and employees acting within the scope of their duties are immune from lawsuits except in
the ten categories of claims specified in 42 Pa.C.S.§ 8522(b). See Schutzeus v.
Pennsylvania Bd. of Prob. & Parole, No. 20-2031, 2022 WL 58541, at *4 (3d Cir. Jan. 6,
2022). False imprisonment is not excepted from immunity.
The defendants’ motion to dismiss for failure to state a claim, ECF no. 43, is
granted.
The Clerk shall mark this matter closed.

DATE: November 2, 2022
Notice by ECF to counsel of record

Keith A. Pesto,
United States Magistrate Judge

8