Opinion
CIVIL ACTION NO. 4:20-CV-430
09-04-2020
HAROLD W. NOEL, JR., Plaintiff v. TOM WOLF, et al., Defendants
(BRANN, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Harold W. Noel, Jr. ("Plaintiff"), a state prisoner, initiated this pro se civil suit by filing a Complaint (Doc. 1) on March 12, 2020, against the following defendants: Tom Wolf (Governor of Pennsylvania), Josh Shapiro (Pennsylvania Attorney General), and Robert Marsh (Superintendent of SCI Benner Township). Plaintiff alleges that he was convicted in state court and received an illegal sentence. Plaintiff states that he seeks a declaration regarding the legality of the statute under which he received a sentencing enhancement. However, in his Complaint, Plaintiff fails to state a claim upon which relief can be granted. For the reasons below, I recommend that the Complaint be dismissed. II. AUTHORITY TO SCREEN COMPLAINT
Plaintiff filed a document entitled, "Petition for Declaratory Judgment." (Doc. 1).
Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 10). On August 14, 2020, Plaintiff filed the civil filing fee of $350 - the amount owed once a plaintiff is granted leave to proceed in forma pauperis. Typically, when prisoner plaintiffs are granted leave to proceed in forma pauperis, the amount of the civil filing fee is paid over time through withdrawals from the plaintiff's prisoner trust fund account. Plaintiffs granted leave to proceed in forma pauperis do not have to pay the $50 administrative fee for civil actions. Here, Plaintiff paid his civil filing fee of $350 in one lump sum payment and is not required to pay the $50 administrative fee. Thus, Plaintiff is still proceeding in forma pauperis and is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 F. App'x 753, 755 (3d Cir. 2007) ("[T]he screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike."). Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) ("[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit."). III. FACTUAL BACKGROUND & PROCEDURAL HISTORY
According to the Complaint, Plaintiff's criminal jury trial took place in February 2010. (Doc. 1, p. 7). The jury found Plaintiff guilty of robbery and conspiracy to commit robbery. Id. Plaintiff received an enhanced sentence under 42 Pa.C.S.A. § 9714, resulting in an aggregate sentence of 29 to 58 years imprisonment. Id.
Plaintiff's Philadelphia County criminal docket is available at CP-51-CR-0011511-2008. This docket can be found at https://ujsportal.pacourts.us/DocketSheets/CP.aspx.
Plaintiff filed two appeals regarding his conviction to the Superior Court of Pennsylvania. Plaintiff filed his first notice of appeal on May 13, 2010. ("2010 Appeal"). Plaintiff challenged the government's discussion of defense counsel's cross-examination of a witness as prejudicial and the procedure used for jury selection as improper. Plaintiff argued that he was entitled to a new trial. On March 13, 2012, the Superior Court held oral argument regarding Plaintiff's appeal. On September 11, 2012, the Superior Court issued an opinion, affirming the decision of the Court of Common Pleas. See Commonwealth v. Noel, 53 A.3d 848 (Pa. Super. Ct. 2012) aff'd by 104 A.3d 1156 (Pa. 2014). Plaintiff appealed the Superior Court's decision regarding the jury selection procedure to the Supreme Court of Pennsylvania. On November 21, 2014, the Supreme Court of Pennsylvania affirmed the Superior Court's decision. Commonwealth v. Noel, 104 A.3d 1156 (Pa. 2014).
Plaintiff's 2010 Appeal is available at 1336 EDA 2010. Plaintiff's appellate docket is available at https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx.
Plaintiff filed another notice of appeal on May 15, 2018. ("2018 Appeal"). Plaintiff proceed pro se. On August 3, 2018, his appeal was dismissed for failure to comply with the Pennsylvania Rules of Appellate Procedure.
Plaintiff's 2018 Appeal is available at 1641 EDA 2018. Plaintiff's appellate docket is available at https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx.
Plaintiff filed this Declaratory Judgment Complaint on March 12, 2020. (Doc. 1). On May 4, 2020, I issued an Order directing Plaintiff to provide written notice to the Court on whether he intended to pursue his claim as a civil suit or a petition for writ of habeas corpus. (Doc. 7). On June 1, 2020, Plaintiff indicated that he seeks a declaratory judgment. (Doc. 8). Thus, I construe Plaintiff's original filing to be a civil complaint.
In his Complaint, Plaintiff argues that the "ambiguous wording of Section 9714 was misinterpreted - specifically the use of the word "or" as to his convictions of robbery and criminal conspiracy. (Doc. 1, pp. 7, 11). As relief, Plaintiff requests that this Court vacate his sentence and remand the matter to the state court for resentencing. Id. at p. 11.
On July 13, 2020, I issued a Screening Order (Doc. 11) concluding that Plaintiff failed to state a claim upon which relief may be granted. In that Order, I granted Plaintiff leave to file an amended complaint. At this time, Plaintiff has not filed an amended complaint. On August 13, 2020, Plaintiff filed a "Motion to Proceed on the Original Record" (Doc. 14). Plaintiff reiterates that he "merely seeks a Federal Declaration under Federal Law whether the word 'OR' contained in statute 42 Pa.C.S. § 9714(g) is exclusive and must be read in the disjunctive as this ruling has the potential to render Plaintiff Noel's sentence highly illegal and unconstitutional." (Doc. 14, p. 1). I construe this Motion to be Plaintiff's indication that he wishes the Court to move forward with his original Complaint and that no amended complaint will be filed. If Plaintiff disagrees with this interpretation of his Motion, he should object to my report and recommendation. IV. LEGAL STANDRD FOR REVIEWING COMPLAINTS FILED BY PRO SE PLAINTIFF PROCEEDING IN FORMA PAUPERIS
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id. at 211. It also "has to 'show' such an entitlement with its facts." Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and '"however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are sufficient to raise the Plaintiff's claimed right to relief beyond the level of mere speculation. The complaint must set forth in a "short and plain" statement a cause of action. With that explanation of the legal standards to be applied to cases of this type I now turn to an analysis of the claims. V. ANALYSIS
A. SUBJECT MATTER JURISDICTION
Plaintiff cites to both the Pennsylvania Declaratory Judgment Act (42 Pa.C.S. § 7540(a)) and the Federal Declaratory Judgment Act (28 U.S.C. § 2201) in his Complaint. In doing so, Plaintiff correctly notes that Heck v. Humphrey, 512 U.S. 477 (1994) bars recovery unless he has received a favorable decision regarding his conviction or sentence.
I first address whether this Court has jurisdiction over Plaintiff's claim. Plaintiff does not explain how this Court has jurisdiction over a claim under the Pennsylvania Declaratory Judgment Act.
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co of Am., 511 U.S. 375, 377 (1994). "[T]hey have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Federal district courts have subject matter jurisdiction over two types of cases: diversity jurisdiction cases and cases that raise federal questions. Gosch v. Int'l Chptr. Of Horseshoers & Equine Trades, 200 F.Supp.3d 484, 489 (M.D. Pa. 2016). "Subject-matter jurisdiction can never be waived or forfeited." Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Thus, the Court has an obligation to satisfy itself that it has subject-matter jurisdiction, and the court may raise the issue sua sponte. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77-78 (3d Cir. 2003). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
Diversity jurisdiction exists where the matter in controversy exceeds the sum of $75,000, and the parties are citizens of different states. 28 U.S.C. § 1332(a)(1). Plaintiff does not allege diversity as a basis for the Court's jurisdiction. Plaintiff is currently confined at SCI Benner Township in Centre County, Pennsylvania. Defendants are Tom Wolf (Governor of Pennsylvania), Josh Shapiro (Attorney General of Pennsylvania), and Robert Marsh (Superintendent of SCI Benner Township). Plaintiff and Defendants are all domiciled in Pennsylvania. Thus, Plaintiff has not established diversity of citizenship. Accordingly, I turn to whether the Court has federal question jurisdiction.
Federal question jurisdiction exists when the civil action arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. A case arises under federal law within the meaning of 28 U.S.C. § 1331 "if a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690 (2006). When the claim is "so insubstantial, implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court," no resolution of federal issue exists. Oneida Indian Nation of N.Y. State v. Oneida County, New York, 414 U.S. 661, 666 (1974).
Plaintiff argues that the sentencing judge improperly sentenced him. In challenging his sentence, Plaintiff cites to both Pennsylvania state law and federal law regarding declaratory judgment. Plaintiff also indicates that jurisdiction is conferred in this case under 28 U.S.C. § 1331 - i.e., federal question jurisdiction. If Plaintiff's claim is under the Federal Declaratory Judgment Act, federal question jurisdiction is clearly met. If Plaintiff's claim is under Pennsylvania's Declaratory Judgment Act, then his claim does not touch a federal question. This Court does not have jurisdiction over a claim under the Pennsylvania Declaratory Judgment Act.
Thus, I will construe Plaintiff's claim to be only under the Federal Declaratory Judgment Act.
B. THE DECLARATORY JUDGMENT ACT
The Declaratory Judgment Act states:
In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.28 U.S.C. § 2201.
The Third Circuit has stated:
The objectives of the Federal Declaratory Judgment Act are ". . . to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damage had accrued." An additional purpose is to clarify legal relationships before they have been disturbed or a party's rights violated. The granting of a declaratory judgment is discretionary and not mandatory.Travelers Ins. Co. v. Davis, 490 F.2d 536, 543 (3d Cir. 1974).
Plaintiff asks this Court to determine whether his state criminal sentence was the product of an improper interpretation of Pennsylvania law. Specifically, Plaintiff argues that his sentence is illegal because "the word 'or' contained in statute 42 Pa.C.S. § 9714(g) required [Plaintiff] to be sentenced under statute § 9714 enhancement to either robbery 'or' conspiracy but not both as the word 'or' as used in said statute is exclusive and must be read in the disjunctive." (Doc. 1, p. 7) (emphasis in original).
The controversy in this case is whether Plaintiff is entitled to having his state sentence vacated. Plaintiff asks the Court to declare his sentence illegal. Had Plaintiff brought a timely federal habeas claim, he undoubtedly would have obtained a determination as to the legality of his state criminal sentence. Instead, it appears that Plaintiff seeks to have that question answered before initiating a federal habeas action. In other words, Plaintiff is seeking an advance ruling of an issue that may arise from a federal habeas action.
In his Notice to the Court (Doc. 8), Plaintiff states, "Plaintiff Noel is merely seeking to have this Honorable Court answer the question, under Federal Law, raised by the Supreme Court of Pennsylvania Chief Justice Saylor in his Dissenting Opinion in the case of Commonwealth v. Griffin, J-91-2018, Pa. Apr. 26, 2019. . . Dependant (sic) upon adjudication of Noel's argument/question, from this Honorable Court, under Federal Law, will determine Noel's next course of future action. (Doc. 8, p. 4). --------
The Supreme Court addressed a similar issue in Calderon v. Ashmus. In Calrderon, the Court stated:
The disruptive effects of an action such as this are peculiarly great when the underlying claim must be adjudicated in a federal habeas proceeding. For we have held that any claim by a prisoner attacking the
validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841-1842, 36 L.Ed.2d 439 (1973). As that opinion pointed out, this means that a state prisoner is required to exhaust state remedies before bringing his claim to a federal court. Id., at 489-491, 93 S.Ct., at 1836-1837. But if respondent Ashmus is allowed to maintain the present action, he would obtain a declaration as to the applicable statute of limitations in a federal habeas action without ever having shown that he has exhausted state remedies. This aberration illustrates the need . . . to prevent federal-court litigants from seeking by declaratory judgment to litigate a single issue in a dispute that must await another lawsuit for complete resolution.Calderon v. Ashmus, 523 U.S. 740 (1998).
Plaintiff may not use the Declaratory Judgment Act to appeal his criminal conviction or sentence. See Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966) ("The [Declaratory Judgment] Act does not provide a means whereby previous judgments by state or federal courts may be reexamined, nor is it a substitute for appeal or post conviction remedies."). Thus, Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff's claim under the Federal Declaratory Judgment Act, his sole claim, should be dismissed.
If Plaintiff seeks to challenge his state sentence, he may do so by filing a separate habeas corpus petition pursuant to 28 U.S.C § 2254.
VI. LEAVE TO AMEND
Plaintiff should not be granted leave to amend his Complaint. "District courts are to offer amendment in pro se civil rights cases unless doing so would be 'inequitable or futile.'" Flynn v. Dep't of Corr., 739 Fed. Appx. 132, 136 (2018) (quoting Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)). On July 13, 2020, I granted Plaintiff leave to file an amended complaint. Plaintiff did not file an amended complaint and, instead, filed notice with the Court that he wished to proceed on the original Complaint. Thus, granting Plaintiff leave to amend would be futile.
VII. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
(1) Plaintiff Harold W. Noel, Jr.'s Complaint (Doc. 1) be DISMISSED for failure to state a claim; andDate: September 4, 2020
(2) The Clerk of Court be directed to close the case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3 which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: September 4, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge