Opinion
Civil Action 2:23-cv-578 ECF 29
03-15-2024
KEVIN DAVIS Plaintiff, v. LINDA ROSENBERG, ANTHONY MOSCATO, C. JAMES FOX, LEO L. DUNN, KHADIJA T. DIGGS, MARCUS L. BROWN, THEODORE W. JOHNSON, MARK KOCH, EVERETT GILLISON, LESLIE GREY, MICHAEL POETTIGER, CRAIG MCKAY, EDWARD BURKE, JOHN DOE, Parole Board Member, and JOHN DOE, Parole Board Member Defendants.
District Judge Marilyn J. Horan
REPORT AND RECOMMENDATION
KEZIA O. L. TAYLOR UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss the Second Amended Complaint filed by Defendants Linda Rosenberg, Anthony Moscato, C. James Fox, Leo L. Dunn, Khadija T. Diggs, Marcus L. Brown, Theodore W. Johnson, Mark Koch, Everett Gillison, Leslie Grey, Michael Poettiger, Craig McKay, and Edward Burke be denied. ECF No. 29.
II. REPORT
A. Factual Background and Procedural History
Plaintiff, Kevin Davis (“Plaintiff”), is an inmate currently incarcerated at the State Correctional Institution at Fayette (“SCI Fayette”). Defendants are members of the Pennsylvania Parole Board. Second Am. Compl. (“SAC”), ECF No. 27 ¶¶ 4-19. All Defendants are named in their individual capacities only. Id. ¶¶ 5-19.
On September 10, 1977, Plaintiff was arrested and charged with the murder of Frank Johnson (“Johnson”), which took place in 1975. Id. ¶ 21. Plaintiff was found guilty of first-degree murder and sentenced to life without the possibility of parole. Plaintiff was 17 years old. Id.
Subsequently, in 2012, the United States Supreme Court held that a mandatory life sentence without parole for juvenile offenders was unconstitutional. See Miller v. Alabama, 567 U.S. 460 (2012). Four years later, the Supreme Court ruled that Miller should be applied retroactively. See Montgomery v. Louisiana, 136 S.Ct. 718, 734 (2016). As a result, the Philadelphia court system assigned legal counsel to Plaintiff to represent him in his resentencing after Miller and Montgomery. ECF No. 27 ¶¶ 25-26.
Plaintiff was assigned legal counsel, Attorney Susan Ricci, from the Defender Association of Philadelphia. Id. ¶ 26. She enlisted the assistance of an investigator, Gisela Garcia, to interview Plaintiff in preparation for Plaintiff's resentencing. Id. ¶ 28. During the interview, Plaintiff described the events that led up to the shooting of Johnson. He indicated that Johnson was a Black Mafia member, who recruited Plaintiff to sell drugs. Id. ¶ 30. Plaintiff admitted that initially, he and his friends participated, but that they eventually “backed out,” which triggered a heated argument. Id. ¶ 31. During the argument, Johnson slapped Plaintiff and a friend, and then pulled out a gun. Plaintiff grabbed the gun and shot Johnson. Id. ¶ 32. Plaintiff supported his description of events with newspaper articles from the 1970's reporting that the Black Mafia was preying on youth in the Philadelphia area at the time of his offense. Id. ¶ 33. In addition to relying on Plaintiff's report, Garcia conducted her own extensive investigation. Id. ¶¶ 34-35. At the completion of her investigation, Attorney Ricci prepared a comprehensive report that she submitted to the resentencing court. Id. ¶ 36. At the resentencing hearing, Plaintiff's original sentence of mandatory life without parole was vacated, and he was resentenced to 40 years to life. Id. ¶ 40.
While he was incarcerated, Plaintiff contracted the Hepatitis C virus. Id. ¶ 22. Plaintiff alleges that the Department of Corrections (“DOC”) and their medical provider, Correct Care Solutions (“CCS”), refused to treat his illness, and their deliberate indifference to his serious medical need triggered his diabetes. Id. ¶ 23. Consequently, Plaintiff filed a civil rights action in 2018 against the DOC and CCS for claims arising out of the alleged failure to treat his Hepatitis C. Id. ¶ 24.
On June 3, 2021, a third parole hearing was held which was attended by Defendant Rosenberg, Defendant John Doe Parole Board Member, and Defendant John Doe Hearing Examiner. Id. ¶ 41. At the hearing, Plaintiff was asked to explain the facts surrounding Johnson's death. Plaintiff repeated the facts he conveyed to investigator Garcia. Id. ¶¶ 44-45. In response, Defendant Rosenberg stated that the Parole Board had a report that Plaintiff was not being truthful about Johnson's death, that Plaintiff was the Black Mafia member, and that he shot Johnson because he refused to sell drugs for Plaintiff. Id. ¶¶ 46-47. Plaintiff was stunned. Id. ¶ 48. At the conclusion of the hearing, Defendant Rosenberg reminded Plaintiff to provide her with the status of his 2018 civil rights action against the DOC and CCS at the next hearing. Id. ¶ 50. Subsequently, all named Parole Board Defendants agreed that Plaintiff was not truthful regarding the facts of Johnson's death and denied parole. Id. ¶ 51.
Plaintiff notes that he had two previous parole hearings. On September 19, 2018, the first hearing was conducted by John Doe (a black male) and John Doe (a white male). Plaintiff was told during this hearing “to remain misconduct free, to get the institution's approval and parole would be granted.” ECF No. 27 ¶ 41 n.2. The second hearing was conducted on June 25, 2019. John Doe (the black male who conducted the first hearing) and Defendant Rosenberg, conducted the second hearing. Defendant Rosenberg asked why SCI Fayette did not approve Plaintiff for parole. He responded that he believed that he had the institution's approval. Rosenberg responded “No. You got the superintendent[']s approval, not the institution[']s.” Id. Plaintiff responded that the reason for not receiving the institution's approval was probably because he filed a civil action relating to the lack of medical care relating to his Hepatitis C. Defendant Rosenberg asked Plaintiff to describe the facts relating to the juvenile charges. Plaintiff complied and Defendant Rosenberg asked no further questions about the juvenile matter. Thereafter, she only asked about an unrelated criminal matter and his civil rights action relating to the alleged deliberate indifference to his Hepatitis C. At the close of the hearing, Defendant Rosenberg directed Plaintiff to provide her with the status of his unrelated legal matters at the next hearing. Id.
Plaintiff further alleges several specific instances where the Parole Board failed to follow the Parole Handbook and the Parole Code. Id. ¶¶ 41, 44, 50.
A few days later, prison guards, wearing masks, appeared at Plaintiff's cell in the middle of the night. They threatened to physically harm Plaintiff with a spray that had caused the death of another inmate if he filed a grievance, reported what was discussed at the parole hearing, or appealed the Parole Board's decision. Id. ¶¶ 52-53. The threat by these prison guards exacerbated his mental condition for which he was already receiving treatment. Id. ¶ 60. Due to the added stress of the Parole Board's decision, Plaintiff attempted suicide, but instead of prescribing mental health treatment, his visits to the mental health provider were decreased. Id. ¶¶ 62-63. Thereafter, Plaintiff threatened to kill or harm himself. Prison officials were aware of this threat but did not provide care for his mental health. In fact, they facilitated Plaintiff's opportunity for self-harm by moving him to cells without observation cameras and allowing him to possess instrumentalities that are commonly used to commit or attempt suicide in prison settings. Id. ¶¶ 64-66.
On August 26, 2021, Plaintiff contacted investigator Garcia and conveyed to her what happened at his June 3, 2021, parole hearing. He asked whether the report referenced by Defendant Rosenberg existed. Id. ¶¶ 66-68. Attorney Ricci responded to Plaintiff's inquiry and provided Plaintiff with the relevant documents regarding his juvenile conviction and investigation. Id. ¶¶ 70-71. Plaintiff contends that further investigation revealed that the alleged report referred to by Defendant Rosenberg did not exist. Id. ¶¶ 72-74. As such, Plaintiff contends that the alleged report was fabricated by all named Defendants in retaliation for Plaintiff's 2018 civil rights action against the DOC and CCS. Id. ¶ 75. He alleges that because all named Defendants fabricated the report and acquiesced in its fabrication, the Plaintiff was threatened with bodily harm if he filed grievances, reported what occurred during his parole interview, or filed an appeal. Id. ¶ 76. He continues that his mental health treatment was decreased, he was moved from cell to cell, incited to kill himself, denied the right to participate in rehabilitative programs designed to transition juvenile lifers back to society, all in retaliation for the filing of his civil action against the DOC and CCS. Id. Plaintiff further alleges that Defendant Rosenberg repeatedly questioned him about his civil rights action and required Plaintiff to provide status reports on the matter. Id. ¶¶ 74-75. Plaintiff states that other juvenile lifers who filed grievances or civil actions did not suffer these same consequences, and Parole Board members did not fabricate reports about their criminal cases. Id. ¶ 78. Instead, Plaintiff alleges that he was singled out for different treatment than other similarly situated juvenile lifers when there was no rational basis for the difference in treatment. Id. ¶ 79.
Thereafter, on April 4, 2023, Plaintiff commenced this civil action pursuant to 42 U.S.C. § 1983 for alleged violations of his First, Eighth, and Fourteenth Amendment rights, and for conspiracy in violation of 42 U.S.C. § 1985(3). Id. ¶¶ 83-84.
B. Legal Standards
Defendants move to dismiss Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly Corp., 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 570). Although the court must accept as true the allegations in the complaint, the court is not “‘compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.'” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc)). In other words, a “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). “Conclusory assertions of fact and legal conclusions are not entitled to the same presumption.” Id.
In addition, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “‘apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Discussion
1. Habeas Corpus
Initially, Defendants argue that to the extent Plaintiff is seeking release from prison, he has not stated a § 1983 claim. ECF No. 30 at 4. They submit that any such claim is a core habeas corpus claim because it attacks the very duration of physical confinement and ultimately seeks an immediate release from custody. As such, Defendants maintain that a habeas petition under 28 U.S.C. § 2254 is the sole vehicle for Plaintiff to raise his claim. Id.
The Court disagrees. The relief Plaintiff seeks is not release from prison. Rather, Plaintiff alleges constitutional violations by Parole Board members, and seeks money damages to compensate him for the alleged constitutional violations. Specifically, he alleges claims for First Amendment retaliation, violation of the Equal Protection Clause of the Fourteenth Amendment and the Eighth Amendment pursuant to 42 U.S.C. § 1983. ECF No. 27 ¶ 83. He also attempts to state a claim for conspiracy pursuant to 42 U.S.C. § 1985(3). Id. ¶ 84. As such, a habeas petition is not the appropriate vehicle for asserting the alleged constitutional violations alleged here. Accordingly, the Court recommends that Defendants' Motion to Dismiss on this basis be denied.
2. Heck v. Humphrey
Defendants also argue that this civil action is barred by Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 30 at 4-5. In Heck, the United States Supreme Court held that a prisoner may not bring a claim pursuant to 42 U.S.C. § 1983, even if not seeking relief from the fact or duration of confinement, for alleged unconstitutional conduct that would invalidate his underlying sentence or conviction unless that conviction has already been called into question. 512 U.S. at 486-87. In this way, individuals may not collaterally attack their underlying convictions, directly or indirectly, by bringing a § 1983 claim. In evaluating whether a § 1983 claim should be dismissed as an impermissible collateral attack on an underlying conviction, the United States Supreme Court instructed as follows:
“[A] § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87.
[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Id. at 487 (emphasis in original) (footnotes omitted).
Defendants argue that Plaintiff has not alleged that the decisions to deny him parole were expunged by executive order, invalidated by a state tribunal, or called into question by a federal court as is required to plead § 1983 claims. ECF No. 30 at 5. As such, Defendants maintain that he has failed to plead an essential element of a § 1983 claim. Id.
In response, Plaintiff argues that the SAC does not demonstrate the invalidity of any outstanding criminal judgment against him, and the claims will not result in a “speedier release” from custody, or a judicial determination that necessarily implies the unlawfulness of state custody. ECF No. 33 at 4. Instead, Plaintiff submits that the SAC asserts that he was retaliated against for engaging in protected activity. Id. Plaintiff further submits that the SAC asserts a violation of the Equal Protection Clause relating to the conditions of his confinement. Id. Therefore, he contends that the Heck doctrine is inapplicable.
The Court agrees with Plaintiff. Plaintiff is not seeking to overturn the decision of the individual Defendant members of the Parole Board to deny him parole. Rather, he is seeking damages for the denial of his parole based upon constitutionally impermissible reasons. Those reasons include the fabricated report created and relied upon by Defendants; the retaliation by Defendants in fabricating the report because he filed a civil action against the DOC and CCS; and conspiracy because Defendants agreed to use the fabricated report. Moreover, even if Plaintiff is successful in pursuing this civil action, he will not demonstrate the invalidity of any criminal conviction or sentence imposed, nor would he receive an earlier release from custody. Thus, the Heck doctrine is inapposite to this case. Accordingly, the Court recommends that Defendants' Motion to Dismiss based on the Heck doctrine be denied.
3. Absolute Immunity
Defendants argue that because the SAC is based on the denial of parole to Plaintiff, and the only interaction between Plaintiff and Defendants was in the context of parole review, they are entitled to absolute immunity. ECF No. 30 at 6. In support, Defendants cite several cases for the proposition that parole officials are entitled to absolute immunity when engaged in adjudicatory functions, such as hearing evidence, making recommendations as to whether to grant parole, and making decisions to grant, revoke, or deny parole. See, e.g., Wilson v. Rackmill, 878 F.2d 772 (3d Cir. 1989); Simon v. Ward, Civ. A. No. 99-1554, 2001 WL 41127, at *2 (E.D. Pa. Jan. 16, 2001).
In response, Plaintiff submits that Defendants Rosenberg, John Doe Parole Board Member, John Doe Hearing Examiner, and the individual Parole Board Defendants were not functioning in an adjudicatory capacity because in fabricating and acquiescing in the fabricated report, they were not engaged in an “integral part of the judicial process.” ECF No. 33 at 5.
Public officials are entitled to absolute immunity from § 1983 liability for the performance of judicial acts. See Stump v. Sparkman, 435 U.S.349, 355-56 (1978). The Court of Appeals for the Third Circuit has held that parole officers are “quasi-judicial officers” and entitled to absolute immunity when they perform adjudicatory duties. See Wilson, 878 F.2d at 775; Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986) (hearing evidence against prisoner and making recommendation to the parole board is “plainly an adjudicatory function[.]”). The Third Circuit has “suggested that one could identify adjudicatory acts as those that were an ‘integral part of the judicial process.'” Simon, 2001 WL 41127, at *3 (quoting Thompson v. Burke, 556 F.2d 231, 237 (3d Cir. 1997)).
Parole officers, however, are not entitled to absolute immunity for acts taken in their executive, administrative, or ministerial capacities. Wilson, 878 F.2d at 775-76. No absolute immunity will attach when a parole officer investigates allegations of parole violations and crimes. Id. at 776. Nor will absolute immunity apply when they provide false information that a parolee violated the terms of parole or committed a crime. Harper, 808 F.2d at 283-84.
Here, Plaintiff alleges facts to plausibly suggest that Defendants were not acting in an adjudicatory function. He alleges that all Defendants fabricated a report, and that all Defendants acquiesced in that report in retaliation for Plaintiff's civil rights action against the DOC and CCS. These functions are not adjudicatory in nature. See Harper, 808 F.2d at 283-84; Wilson, 878 F.2d at 776. Cf. Burkett v. Love, 89 F.3d 135, 142 (3d Cir. 1996) (recognizing “that an allegation that parole was denied in retaliation for the successful exercise of the right of access to the courts states a cognizable claim for relief.”).
Thus, the allegations of the SAC, taken as true and viewed in the light most favorable to the pro se Plaintiff, do not indicate at this stage of the litigation that Defendants are entitled to absolute immunity. Therefore, it is recommended that Defendants' Motion to Dismiss on the grounds of absolute immunity be denied.
D. CONCLUSION
It is respectfully recommended that the Motion to Dismiss the Second Amended Complaint filed by Defendants Linda Rosenberg, Anthony Moscato, C. James Fox, Leo L. Dunn, Khadija T. Diggs, Marcus L. Brown, Theodore W. Johnson, Mark Koch, Everett Gillison, Leslie Grey, Michael Poettiger, Craig McKay, and Edward Burke be denied. ECF No. 29.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: March 15, 2024
BY THE COURT
s/Kezia O. L. Taylor
KEZIA O. L. TAYLOR
United States Magistrate Judge cc: Kevin Davis
QQ0944
SCI Fayette50 Overlook Drive
LaBelle, PA 15450