Opinion
1:21-cv-32
07-23-2021
ANTHONY SCOTT, Plaintiff v. PA. DEPT. OR PROBATION AND PAROLE BOARD, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANŽILLO UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that the Motion for Leave to Proceed in forma pauperis [ECF 3] filed by Plaintiff Anthony Scott be granted. It is further recommended that this action be dismissed, without prejudice, for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Plaintiffs motion for leave to proceed in forma pauperis
Plaintiff, an inmate incarcerated at SCI-Albion, seeks leave to proceed in forma pauperis. ECF No. 3. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment, as well as a review of Plaintiff s institutional account statement, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, his motion for leave to proceed in forma pauperis should be granted and the Clerk should be directed to docket the Complaint.
B. Background
In his proposed Complaint, Plaintiff alleges that the Pennsylvania Board of Probation and Parole ("Parole Board") violated his Eighth and Fourteenth Amendment rights by denying him parole on January 24, 2020, after he "refused signing 'Conditions Governing Special Probation/Parole' papers which [were] not demanded by Sentencing Court during sentencing." ECF No. 1 at 4. He also alleges that Defendant Clark, the Superintendent of SCI-Albion, "refused to try obtaining a copy of the original [sentencing] order which Plaintiff was told does not exist." Id. No other allegations appear in his pleading. Plaintiff seeks $1, 200, 000.00 in punitive damages. Id. at 5.
C. Analysis
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOMRDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
Each of Plaintiff s claims in the instant case is subject to dismissal pursuant to §1915(e)(2). With respect to the Pennsylvania Board of Probation and Parole, it is well-established that the Parole Board is immune from suit under the Eleventh Amendment. See Spuckv. Pa. Bd of Prob. and Parole, 563 Fed.Appx. 156, 158 (3d Cir. 2014) (per curiam) ("As the District Court correctly determined, the Eleventh Amendment affords the [Pennsylvania Board of Probation and Parole] protection from suit in an action brought pursuant to 42 U.S.C. § 1983" (citing Harper v. Jeffries, 808 F.2d 281, 284 n.4 (3d Cir. 1986))). And, even if the Eleventh Amendment did not bar Plaintiffs claims, the Parole Board is also not a '"person' within the meaning of section 1983." Fenton v. Pennsylvania Dep 't of Corr., Civ. A. No. 18-5484, 2019 WL 398929, at *4 (E.D. Pa. Jan. 31, 2019) (citing Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977)). For each of these reasons, the Parole Board should be dismissed.
As to Clark, Plaintiff alleges only that he refused to obtain a copy of Plaintiff s sentencing order for him. This allegation is plainly frivolous. To establish a claim against Clark under 28 U.S.C. §1983, Plaintiff would have to "demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Kneipp v, Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). The Court is aware of no obligation on the part of a prison's superintendent to track down legal paperwork at an inmate's request, let alone one dictated "by the Constitution and the laws of the United States." Kneipp, 95 F.3d at 1204. Plaintiffs claim against Clark should be dismissed.
III. Leave to amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In the instant case, it is not clear that amendment would be inequitable or futile. For example, it is conceivable that Plaintiff may be attempting to argue that the procedures pursuant to which the Parole Board assessed his eligibility for parole were unconstitutional. Per the United States Supreme Court's decision in Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), such actions can proceed under § 1983 "where the success of the procedural challenges would not necessarily require immediate or speedier release for the prisoner." Mutschler v. Tritt, 2018 WL 4184320, at *5 (D.N.J. Aug. 31, 2018). See also Camilo v. Leopizzi, 2021 WL 616014, at *3 (D.N.J. Feb. 16, 2021) ("[U]nder Wilkinson, parole challenges may be brought in a civil rights action where the plaintiff seeks "to render invalid the state procedures used to deny parole eligibility ... or parole suitability" and does not seek an injunction ordering his immediate or speedier release into the community.") (emphasis in original). Such claims are ordinarily brought against "the members of the Board of Probation and Parole who have the ultimate discretionary authority to deny parole." Lindsay v. Lawler, 2012 WL 619816, at *4 n. 7 (M.D. Pa. Jan. 23, 2012). Finally, while any request for monetary damages would likely be barred by Heck v. Humphrey, 512 U.S. 477 (1994), injunctive or declaratory relief might be available pursuant to Wilkinson
Unless, that is, Plaintiff can demonstrate that the parole decision has been invalidated on appeal, through a successful habeas corpus action, or in some other manner.
The Court does not express any opinion as to whether any of these legal principles would apply to Plaintiffs amended pleading. It notes them only to demonstrate that leave to amend may not be entirely futile.
Because it is not clear that amendment would be futile, it is recommended that Plaintiff be granted leave to file an amended complaint within a specified time following dismissal. Plaintiff is reminded that an amended complaint "must be complete in all respects. It is a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed." Williams v. Ferdarko, 2018 WL 3653272, at *l n. 1 (W.D. Pa. Aug. 1, 2018) (quoting Young v. Keohane, 809 F.Supp. 1185, 1189 (M.D. Pa. 1992)).
IV. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed in accordance with 28 U.S.C. § 1915(e)(2), but that Plaintiff be provided an opportunity to amend his pleading within a reasonable time.
V. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).