Opinion
Civil Action 3:21-CV-01280
10-12-2022
ARMONI MASUD JOHNSON, Petitioner, v. THOMAS MCGINLEY, et al., Respondents.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Chief United States Magistrate Judge
Pro se Petitioner Armoni Masud Johnson (“Johnson”) initiated this action on July 8, 2021, by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Respondents Superintendent Thomas McGinley and the Pennsylvania Attorney General's Office (collectively, “Respondents”). (Doc. 1). Johnson is an inmate of the State Correction Institute at Coal Township (“SCI-Coal Township”) in Northumberland County, Pennsylvania. (Doc. 1). For the following reasons, it is respectfully recommended that the petition be dismissed.
On September 7, 2022, Johnson filed a motion to supplement the complaint seeking to add new Respondents Amy Wheary and Deputy V. Mirarchi. (Doc. 40, at 1).
I. Background and Procedural History
On October 11, 2013, Johnson was sentenced to 5 years, 6 months to 13 years of incarceration for violating 18 Pa.C.S. § 2702(a)(1) (aggravated assault, serious bodily injury), and sentenced to 5 years, 6 months to 13 years of incarceration, to be served concurrently, for violating 18 Pa.C.S. § 2702(a)(4) (aggravated assault, deadly weapon). (Doc. 16, at 16). On April 28, 2016, Johnson was sentenced to 1 year, 6 months to 7 years, 6 months of incarceration, to be served consecutively, for violating 35 P.S. § 780-113(a)(30) (manufacture, deliver, or possession with intent, controlled substance), and sentenced to 1 year, 4 months to 7 years, 6 months of incarceration, to be served consecutively, for violating 18 Pa.C.S. § 751 (criminal use of communication facility). (Doc 16, at 16). Johnson was initially denied parole on October 13, 2020, and upon reconsideration on July 8, 2021. (Doc. 16, at 20, 23).
The Board's decision to deny parole listed the following reasons: “your institutional behavior, including reported misconducts;” “the negative recommendation made by the [DOC];” “your prior unsatisfactory parole supervision history;” and “the negative recommendation made by the prosecuting attorney.” (Doc. 1-1, at 2).
The Board's decision to deny parole listed the following reasons: “your risk and needs assessment indicating your level of risk to the community;” “reports, evaluations and assessments/level of risk indicates your risk to the community;” “your failure to demonstrate motivation for success;” “your minimization/denial of the nature and circumstances of the offense(s) committed;” and “your refusal to accept responsibility for the offense(s) committed.” (Doc. 1-1, at 4).
On July 21, 2021, Johnson initiated this action by filing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Respondents, challenging the Pennsylvania Parole Board's decision to deny parole on July 8, 2021. (Doc. 1). Johnson claims that the Board's decision to deny parole was an act of retaliation for Johnson's exercise of his appellate rights in relation to underlying criminal cases. (Doc. 1, at 5). Further, Johnson asserts that the decision to deny parole violated his Fourteenth Amendment rights to equal protection and due process, as well as his Eighth Amendment right to be free from cruel and unusual punishment. (Doc. 1, at 6-8). On September 3, 2021, Johnson signed an electron form, stating that he chose to have the Court rule on his petition as filed under 28 U.S.C. § 2254 and understood that he may be forever barred from presenting in federal court any claim not presented in the petition. (Doc. 5). Respondents filed a response to the petition on December 1, 2021. (Doc. 16). Johnson filed a traverse on December 27, 2021. (Doc. 19).
On January 1, 2022, Johnson filed an “omnibus motion to compel justice,” claiming that he was found guilty without a trial and retaliated against “for attempting to exercise federally protected constitutional rights and the proof provided of institutional and systemic discrimination and modern day enslavement by the government.” (Doc. 20, at 1). Construing the motion as an additional petition for writ of habeas corpus, the Court denied Johnson's motion on March 2, 2022, because Johnson failed to proffer additional facts or request relief different from his original habeas petition. (Doc. 21, at 2). On March 11, 2022, Johnson filed the motion for immediate injunctive relief, as well as a brief in support. (Doc. 22; Doc. 23). On March 15, 2022, Johnson filed another motion for injunctive relief, as well as a supplement to the first motion for immediate injunctive relief. (Doc. 24; Doc. 25). On March 23, 2022, Johnson filed the motion for reconsideration, as well as a brief in support. (Doc. 26; Doc. 27). On May 6, 2022, the undersigned recommended that the Court deny Johnson's motions for immediate injunctive relief, which the Court adopted in full on June 10, 2022. (Doc. 32; Doc. 35). On July 20, 2022, Johnson filed a motion to “recall mandate and/or rule 60(b) motion to evaluate integrity of this court/request to be paroled via habeas corpus.” (Doc. 37). On September 7, 2022, Johnson filed a motion for injunctive relief and a motion to supplement the complaint by adding new respondents and a claim of conspiracy. (Doc. 39; Doc. 40).
In the motion to supplement, Johnson alleges Respondents acted in concert with to hinder Johnson's efforts in the underlying state action, and wrongfully and intentionally concealed information crucial to Johnson's ability to obtain redress in the Court and did so for the purpose of frustrating that right. (Doc. 40, at 1). The motion to supplement has been considered. (Doc. 40).
Having been fully briefed, this petition is now ripe for disposition.
II. Habeas Claims Presented
Johnson presents the following grounds for relief in his federal habeas petition:
1) That the Pennsylvania Parole Board's decision to deny parole was retaliation in violation of the First Amendment for the exercise of his appellate rights in his underlying criminal cases. (Doc. 1, at 5);
2) That the Pennsylvania Parole Board's decision to deny parole violates his right to equal protection and due process under the Fifth and/or Fourteenth Amendment. (Doc. 1, at 6);
3) That the Pennsylvania Parole Board's decision to deny parole constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Doc. 1, at 8); and
4) That the Pennsylvania Parole Board's decision to deny parole constitutes “selective and discriminatory enforcement of laws and rules in violation of the Equal Protection Clause.” (Doc. 1, at 9).
5) Respondents conspired to deny Johnson access to the courts. (Doc. 40, at 1-2).
The undersigned addresses each of these grounds for relief in turn.
III. STANDARD OF LAW
Johnson brings his petition pursuant to 28 U.S.C. § 2254, which permits federal courts to issue habeas corpus relief for persons in state custody. While a prisoner may properly challenge the “fact or duration” of his confinement through a § 2254 petition, see Preiser v. Rodriguez, 411 U.S. 475 498-99 (1973), the statute sets “several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.”). Rather, federal habeas review is limited to claims based “on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. As such, a writ of habeas corpus is an “ ‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the criminal proceedings.” See Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)).
The statutory text of § 2254 additionally requires that federal courts give the appropriate deference to the legal rulings and factual findings of state courts made during criminal proceedings, and provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state court decision is “contrary” to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an “unreasonable application” of clearly established federal law if “(1) ‘the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular . . . case;' or (2) ‘the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'” Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) (quoting Williams, 529 U.S. at 407).
Thus, given these deferential standards of review, federal courts frequently decline invitations by habeas petitioners to disturb the considered views of state courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
Nonetheless, with respect to § 2254(d)(1), the Supreme Court defines “clearly established federal law” as “holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. Further, to warrant relief under § 2254(d)(1), a state court's “unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Regarding 28 U.S.C. § 2254(d)(2), “a determination of a factual issue made by a State court shall be presumed to be correct” unless a petitioner can show, by clear and convincing evidence, that the finding was erroneous. 28 U.S.C. § 2254(e)(1); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Moreover, habeas relief will not be granted pursuant to § 2254(d)(2) if a reasonable basis existed for the state court to make its factual finding. See Burt v. Titlow, 571 U.S. 12, 18 (2013).
IV. Discussion
A. Exhaustion and Procedural Default
Respondents submit that Johnson failed to exhaust state court remedies with respect to the claims raised in his petition and, thus, his petition should be denied without a hearing. (Doc. 16, at 6).
Generally, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004); see also O'Sullivan, 526 U.S. at 845 (“[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . by invoking one complete round of the State's established appellate review process.”). The United States Court of Appeals for the Third Circuit has further explained that, to “fairly present” a claim for exhaustion purposes, the petitioner must advance “a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). Such notice may be conveyed through a petitioner's:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.McCandless, 172 F.3d at 261-62 (citing Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227 (3d Cir. 1992))
Exhaustion under the AEDPA also “turns on an inquiry into what procedures are ‘available' under state law.” O'Sullivan, 526 U.S. at 847. In Pennsylvania, a federal claim is deemed exhausted once it is presented to the Superior Court of Pennsylvania-either on direct appeal from a state criminal conviction or on appeal from a PCRA court's denial of postconviction relief-because the Pennsylvania Supreme Court is not considered an “available” state court remedy. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (declaring review from the Pennsylvania Supreme Court to be “unavailable” for purposes of exhausting state court remedies). However, “a claim will be deemed unexhausted if the petitioner ‘has the right under the law of the State to raise, by any available procedure, the question presented,' but has failed to do so.” Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017), cert. denied sub nom. Wilkerson v. Lane, 138 S.Ct. 1170 (2018) (citing 28 U.S.C. § 2254(c)).
On the other hand, “[w]hen a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless, 172 F.3d at 260 (quoting 28 U.S.C. § 2254(b)(1)(B)(i)); see also Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.”). In such situations, a claim is deemed “procedurally defaulted,13 not unexhausted, and . . . may be entertained in a federal habeas petition only if there is a basis for excusing the procedural default.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001); see also Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Wilkerson, 871 F.3d at 228 (“If a petitioner's federal claim was not ‘fairly presented,' and further state-court review is no longer available under state law, the claim is ‘procedurally defaulted' . . .”) (quotations omitted). Specifically, procedural default may be excused if a petitioner can demonstrate “cause” for the defaulted claim, and “prejudice therefrom,” or that a “failure to review his federal claim will result in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000); see also Coleman, 501 U.S. at 750.
Here, Johnson claims the Pennsylvania Parole Board violated his rights by denying him parole. (Doc. 1, at 1). Johnson states: “After Parole retaliated on me and denied me parole in October 2020, I filed a request for evidentiary hearing seeking release on parole see Doc 38 in civil action #1:18-CV-2359. Thereafter, I saw Parole [on] July 2, 2021 and . . . they were upset with me because I exercised protected rights such [as the] right to appeal and 5th amendment right to not self-incriminate myself.” (Doc. 1, at 5). Johnson contends “[t]here are no available state remedies for denial at parole.” (Doc. 1, at 6). Johnson claims state court remedies were not available because he was denied parole due to his “race, religion, under arbitrary or capacious rationale (e.g., past criminal history, failure to gain a doc[tor] or judges recommendation, or any reason that will never change, or because he files litigation against state officials.” (Doc. 19, at 2).
Respondents aver that Johnson “had the option of filing a petition for writ of mandamus in the Commonwealth Court's original jurisdiction to challenge the Board's decision to deny him parole because Commonwealth Court considers constitutional claims in its original jurisdiction relating to Board decisions denying parole.” (Doc. 16, at 4). Thus, Respondents contend Johnson's petition should be denied without a hearing because he has the present ability to challenge the parole refusal at issue in the Commonwealth Court of Pennsylvania. (Doc. 16, at 5-6). Respondents request that the Court decline to follow the Third Circuit's precedent set forth in Defoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), cert. denied, 125 S.Ct. 2970 (2005), which held that a state prisoner challenging the denial of parole on constitutional grounds, other than a violation of the Ex Post Facto Clause, is not required to exhaust state court remedies before pursuing federal habeas review. (Doc. 16, at 5-6 n.1). In 2005, in Defoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), the United States Court of Appeals for the Third Circuit held that, aside from litigating an ex post facto claim, Pennsylvania law does not provide a mechanism by which a prisoner can challenge a parole denial. Defoy, 393 F.3d at 445. Therefore, it held, a Pennsylvania prisoner who is challenging the denial of parole is exempt from the exhaustion requirement with respect to all other types of constitutional claims. Defoy, 393 F.3d at 445. Respondents suggest that the Court and the Third Circuit reassess the exhaustion doctrine as it applies to the Parole Board's parole refusal decisions as based in a post-Defoy reality that Commonwealth Court routinely entertains challenges to parole refusal in contexts other than ex post facto claims. (Doc. 16, at 5-6 n.1). Respondents also requested that the Court direct further briefing on this issue. (Doc. 16, at 56 n.1).
A review of the record before the Court does not reveal that Johnson challenged the Pennsylvania Parole Board's decision to deny parole prior to initiating this action. However, because Johnson's claims have no merit and it is more efficient for the Court to deny them for that reason, the undersigned will not address the issue of exhaustion further. Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (a federal court “may bypass the exhaustion issue altogether should [it] decide that the petitioner's habeas claim fails on the merits”).
B. Merits
1. Fourteenth Amendment Due Process and Equal Protection Claims
Johnson claims Respondents violated his right to due process. (Doc. 1, at 6). It is well-established that “[t]here is no constitutional right or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Nor does he have any right based upon Pennsylvania law to parole. See Weaver v. Pennsylvania Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997) (finding that under Pennsylvania law, parole is a favor, and the prisoner has no protected liberty interest in being released before a legitimately imposed sentence has expired); see also Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996) (parole is not a constitutionally protected liberty interest under Pennsylvania law); Rauso v. Vaughn, 79 F.Supp.2d 550, 552 (E.D. Pa. 2000); Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319 (1999). While “states may under certain circumstances create liberty interests which are protected by the Due Process Clause,” Sandin v. Conner, 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, 289, opinion after certified question answered, 251 F.3d 480 (3d Cir. 2001); Rogers, 724 A.2d 319. Thus, an inmate has no right to parole. questions
A federal court's review of a state parole board decision is limited to an abuse of discretion inquiry. Block v. Potter, 631 F.2d 233, 235 (3d Cir. 1980). Specifically, the state may not deny parole on unconstitutionally impermissible grounds, such as race, religion, ethnicity, or retaliation for exercising constitutional rights. Morrissey v. Brewer, 408 U.S. 471 (1972). “When the Parole Board bases its decision on factors that bear no rational relationship to rehabilitation or deterrence, it transgresses the legitimate bounds of its discretion.” Block, 631 F.2d at 237. The Third Circuit has stressed that a substantive due process claim based upon alleged arbitrary and capricious actions is not easily mounted because the relevant level of arbitrariness required involves not merely action that is unreasonable, but rather, something more egregious, at times “conscience shocking.” Hunterson v. DiSabato, 308 F.3d 236, 246-47 (3d Cir. 2002); see also Evans v. Secretary, Pa. Dep't of Corrs., 645 F.3d 650, 659 (3d Cir. 2011).
Pennsylvania law grants the Parole Board vast discretion to refuse or deny parole. See 61 Pa.C.S. § 6137. The law authorizes the Board, in its discretion, to consider various factors in granting or denying parole. See 61 Pa.C.S. § 6135. Pennsylvania courts have affirmed the Board's complete discretion to parole a convict. See, e.g.,Rogers, 724 A.2d at 319; Reider v.Commw. Pa. Bd. of Prob. & Parole, 514 A.2d 967, 971 (Pa. Cmwlth. Ct. 1986). More importantly, for purposes of the instant matter, “[f]ederal 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 v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001).
Johnson specifically challenges the Board's denial of parole on October 13, 2020, and upon reconsideration on July 8, 2021. (Doc. 16, at 20, 23). In the October 13, 2020, Notice of Board Decision, the Board advised Johnson that he was denied parole for the following reasons: “your institutional behavior, including reported misconducts;” “the negative recommendation made by the [DOC];” “your prior unsatisfactory parole supervision history;” and “the negative recommendation made by the prosecuting attorney.” (Doc. 1-1, at 2). In the July 8, 2021, Notice of Board Decision, the Board advised Johnson that he was denied parole for the following reasons: “your risk and needs assessment indicating your level of risk to the community;” “reports, evaluations and assessments/level of risk indicates your risk to the community;” “your failure to demonstrate motivation for success;” “your minimization/denial of the nature and circumstances of the offense(s) committed;” and “your refusal to accept responsibility for the offense(s) committed.” (Doc. 1-1, at 4).
Johnson has not established that the Board's decisions to deny parole constituted an unreasonable exercise of the Board's discretion. Rather, Johnson merely disagrees with the Board's decision and the criteria upon which the Board relied to deny parole. (Doc. 1, at 6). Such a challenge to the Parole Board's administrative decision to deny parole release is unavailing. See 61 Pa. C.S. § 6137 (granting the Parole Board vast discretion to refuse or deny parole); McGinnis v. Royster, 410 U.S. 263, 277 (1973) (it is a “legitimate desire of the state legislature to afford state prison officials an adequate opportunity to evaluate both an inmate's conduct and his rehabilitative progress before he is eligible for parole.”). As reflected in Notices of Board Decision, Johnson was denied parole after an interview, a review of his file, and consideration of the matters set forth in the Prisons and Parole Code. (Doc. 1-1, at 2, 4); see 61 Pa. C.S. § 6135. Further, the record reflects that the Board based its parole determination on factors that it is statutorily required to consider in accordance with 61 Pa. C.S. § 6135. Specifically, the Board determined that Johnson was not suitable for parole because he presented an unacceptable risk to the community, he did not demonstrate that he was motivated to succeed on parole, he minimized or denied the nature and circumstances of the offenses he committed, and he refused to accept responsibility for his criminal conduct. (Doc. 1-1, at 2, 4). Johnson has not demonstrated that any of the factors considered by the Board shock the conscience, or that such factors constitute behavior intended to injure him in a way that is not justified by any legitimate government interest. See Prevet v. Barone, 428 Fed.Appx. 218, 220 (3d Cir. 2011) (DOC's negative recommendation is a legitimate penological concern); Gordon v. Wenerowicz, No. 1:10-CV-1257, 2011 WL 5509538, at *4 (M.D. Pa. Nov. 10, 2011) (denying parole because petitioner poses a risk to the community is not “conscience shocking”).
Under 61 Pa. C.S. § 6135, the Board must evaluate, among other factors: (1) the nature and circumstances of the offense, (2) any recommendations made by the trial judge and prosecuting attorney, (3) the general character and background of the inmate, (4) the notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature and circumstances of the offense committed for which sentence was imposed, and (5) the conduct of the person while in prison and his physical, mental and behavioral condition and history and his complete criminal record.
In addition, Johnson claims that the Board's denial of parole violates his equal protection rights. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. U.S. Const. amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). To state an equal protection claim, a litigant must allege that: (1) he or she was a member of a protected class, (2) he or she was treated differently from similarly situated persons outside of his or her protected class, and (3) the resultant discrimination was purposeful or intentional rather than incidental. Tillman v. Lebanon County Corr. Fac., 221 F.3d 410, 423-24 (3d Cir. 2000).
The petition does not allege that Johnson was treated differently from other similarly situated parole candidates. Instead, Johnson contends that another inmate, “whom has been in and out of jail which on parole,” was granted parole while Johnson was denied. (Doc. 1, at 9). However, in order to state a violation of equal protection, Rodriguez must allege that he was treated differently than similarly-situated persons. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (a party must demonstrate that he “‘received different treatment from that received by other individuals similarly situated'” in order to pursue an equal protection claim) (quoting Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d 676, 677 n. 1 (3d Cir. 1980)). With respect to this issue, it is well-settled that prison inmates are not a suspect class. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (stating that prisoners are not a suspect class).
Johnson has not identified any other similarly-situated individuals who the Board treated more favorably without a rational basis. Further, as discussed supra, the Board's decisions denying parole listed reasons grounded in the Board's legitimate discretion, applying the legitimate factors established by the Pennsylvania Legislature. See 61 Pa. C.S. § 6135. Consequently, Johnson has not demonstrated that he is entitled to habeas corpus relief under the Equal Protection Clause and this claim will be denied.
Accordingly, Johnson's claim that the Board's decision to deny parole violated his Fourteenth Amendment claims should be denied.
2. First Amendment Retaliation Claim
Johnson claims that the Board violated his First Amendment rights by retaliating against him because he filed other federal matters in this Court, including Johnson v. McGinley, No. 4:18-CV-01714. (Doc. 1, at 6). To prevail on a retaliation claim, the petitioner must show that he engaged in constitutionally-protected activity and that he suffered, at the hands of the Board, adverse action. See, e.g., Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citing, inter alia, Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Once these two threshold criteria are met, the petitioner must then show that the protected activity was “a substantial or motivating factor” in the Board's decision to deny him parole. Rauser, 241 F.3d at 333 (quoting Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)). If the petitioner had established a prima facie case, which he did not, the burden would then have shifted to the Board to prove by a preponderance of the evidence that it would have taken the same action even in the absence of the protected activity. Rauser, 241 F.3d at 333 (citing Mount Healthy, 429 U.S. at 287). The Third Circuit has “repeatedly emphasized that ‘bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing' on a habeas petition.” Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010).
Johnson has not demonstrated that the Board's decision was in retaliation for filing his other federal actions. Johnson makes the conclusory assertion that the persons who interviewed him for parole appeared upset that he exercised his right to appeal and not incriminate himself. (Doc. 1, at 5). However, Johnson fails to identify any active appeal of his criminal convictions, nor does he allege that the persons who interviewed him for parole were aware of those matters. (Doc. 1, at 5-6). Johnson has not explained why any person involved in the parole evaluation would have discriminated against him for filing the other federal actions. His conclusory allegation that the Board retaliated against him is not sufficient to establish it did so. See, e.g., Gibson v. Overmyer, No, 1:17-CV-188, 2018 WL 889026, *3 (W.D. Pa. Feb. 14, 2018) (inmate's bald assertion that the Board retaliated against him was not sufficient to prevail on a First Amendment retaliation claim). Moreover, the undersigned notes that the Board's decision denying parole was rendered before Johnson filed the instant habeas petition. (Doc. 1; Doc. 1-1, at 2, 4). Therefore, the Board's decision to deny parole was in no way rendered in retaliation for filing this federal habeas petition. It is Johnson's burden to demonstrate that his constitutional rights have been violated and he has not met his burden here. See, e.g.,Rauser, 241 F.3d at 333
Accordingly, Johnson's claim that the Board's decision to deny him parole violated his First Amendment rights because it was retaliatory should be denied.
3. Eighth Amendment Cruel and Unusual Punishment Claim
Johnson asserts an Eighth Amendment claim of cruel and unusual punishment “in so much that parole boards retaliation against [Johnson] to keep [Johnson] in jail is traumatizing.” (Doc. 1, at 8).
As the Court explained:
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. However, inmates have no right to be released before the expiration of a valid prison term. Greenholtz v. Inmates of Nebraska Penal &Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “[T]he mere failure to allow the Petitioner to be released on parole before his maximum sentence expires in 2019 does not state a valid Eighth Amendment claim.” Joseyv. Pa. Board of Probation and Parole, et al., 2014 WL 310448, *4 (M.D. Pa.) (citing Sharard v. Berks County, 2012 WL 6838952, *8 (M.D. Pa. Dec. 6, 2012; Corlissv. Pa. Bd. of Prob. & Parole, 2006 WL 2927270, *5 (M.D. Pa. Oct. 11, 2006))).
Urruita v. PA Atty. Gen., 4:13-CV-0577, 2014 WL 6982993, at *5 (M.D. Pa. Dec. 9, 2014).
Johnson's Eighth Amendment claim fails because he has no right to be released prior to the expiration of his maximum sentence and the Board's decision to deny parole does constitute cruel and unusual punishment. See Greenholtz, 442 U.S. at 7; Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989) (imprisonment beyond one's term constitutes punishment within the meaning of the Eighth Amendment).
Accordingly, it is recommended that the Court deny the instant habeas petition as Johnson has failed to meet his burden of demonstrating that the Board abused its discretion.
4. Conspiracy to Deny Access to the Courts Claim
In the supplement to the complaint, Johnson contends Respondent McGinley acted in concert with other Respondents to hinder Johnson's efforts in the underlying state action. (Doc. 40, at 1). In addition, Johnson contends Respondent Wheary wrongfully and intentionally concealed information crucial to his ability to obtain redress in the Court and did so for the purpose of frustrating that right, failed to serve legal documents to Respondents, withheld legal documents that were forwarded to her, and failed to return such legal documents, hindering Johnson's efforts to pursue this legal action. (Doc. 40, at 1). Further, Johnson claims Respondents conspired to violate his access to the courts and that Respondents' actions “will [and] does cause a chill effect on [Johnson's First A]mend rights in which a pattern [and] practice of these [D]efendants has been ongoing in violation of multiple constitutional rights to [Johnson and] is very detrimental to [Johnson] in which [Johnson] seek relief.” (Doc. 40, at 2).
Regarding the civil conspiracy claim, the Court previously noted:
[I]n order to plead a civil rights action based upon a claim of conspiracy, a plaintiff must plead allegations that are:
supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each defendant allegedly played in carrying out those objectives. Bare conclusory allegations of “conspiracy” or “concerted action” will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.
Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D.Pa.1992). Furthermore, when pleading a conspiracy claim, a plaintiff cannot rely upon subjective suspicion and speculation. Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.1991). Quite the contrary, “to properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred. D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir.1992); see also Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir.2008) (stating that a conspiracy requires a ‘meeting of the minds') (further citation omitted). This holding remains good law following Twombly and Iqbal, which, in the conspiracy context, require ‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.' Twombly, 550 U.S. at 556, 127 S.Ct. 1955, 167 L.Ed.2d 929.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.2010) cert. denied, 131 S.Ct. 1798, 179 L.Ed.2d 655 (U.S.2011). We are mindful of these pleading requirements, which are considered together with the standards
of pleading applicable to all civil actions in federal court as defined in Twombly and Iqbal, supra.
Victor v. Huber, No. 3:12-CV-282, 2012 WL 7463723, at *14 (M.D. Pa. Nov.29, 2012) report and recommendation adopted sub nom. Victor v. Hubbard, No. 3:12- CV-00282, 2013 WL 704654 (M.D. Pa. Feb.26, 2013).
Here, Johnson's complaint fails to meet the pleading standards for a civil conspiracy claim. The claims of conspiracy set forth in the supplement to the complaint are speculative and conclusory. (Doc. 40, at 1-2). In the absence of other well-pleaded factual assertions, Johnson's conspiracy claim amounts to little more than labels and conclusions, and a formulaic recitation of the elements of a cause of action, and, as such, fails as a matter of law. See Palmer, 592 F.3d at 395. Therefore, Johnson's conspiracy claim, which is pleaded in a conclusory fashion without supporting factual detail, fails to state a claim upon which relief may be granted.
As for the bases for the access-to-courts claim, Johnson claims Respondents hindered his ability to litigate the underlying criminal matter and other federal court actions. (Doc. 40, at 1-2). “Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts.” Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008) (quoting Lewis v. Casey, 518 U.S. 343, 346 (1996)). “An inmate's right of access to the courts encompasses the right to contact visits with his or her attorney.” Lane v. Tavares, No. 3:14-CV-00991, 2015 WL 435003, at *8 (M.D. Pa. Feb. 3, 2015) (quoting Young v. Larkin, 871 F.Supp. 772, 783 (M.D. Pa. 1994)). “Contact visitation with an attorney,” however, “is merely one aspect of the broad and fundamental right of meaningful access to the courts.” Lane, 2015 WL 435003, at *8 (quoting Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir.1993)). “Moreover, this right does not ‘entail unfettered or totally unrestricted visitation with counsel, for it must yield to legitimate penological interests.'” Lane, 2015 WL 435003, at *8 (quoting Moore v. Lehman, 940 F.Supp. 704, 708 (M.D. Pa. 1996)). “Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered ‘an actual injury'-that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim; and (2) that they have no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Monroe, 536 F.3d at 205 (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
“[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe, 536 F.3d at 205 (citing Lewis, 518 U.S. at 354-55). In Lewis, the Supreme Court analyzed this principle as it was applied in an earlier case, Bounds v. Smith, 430 U.S. 817 (1977). According to the Lewis Court:
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.Lewis, 518 U.S. at 355 (emphasis in original).
“Although Casey ‘limits the types of cases in which the prison must provide affirmative assistance, it does not give free reign to prison authorities to interfere with and impede a prisoner's pursuit of other legal actions.'” Sanders v. Rose, 576 Fed.Appx. 91, 94 (3d Cir. 2014) (per curiam) (quoting Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010)); accord Prater v. City of Philadelphia, 542 Fed.Appx. 135, 138 (3d Cir. 2013) (per curiam) (quoting Cohen, 621 F.3d at 1317).
In this case, the undersigned finds that Johnson did not lose his right to pursue his legal claims. Johnson claims Respondents failed to serve legal documents, failed to return legal documents to Johnson, and concealed information crucial to obtain redress through the courts. (Doc. 40, at 1). However, Johnson does not submit any evidence to indicate that Johnson could not timely litigate his actions or that Respondents allegedly withheld legal documents. Even giving Johnson every benefit of the doubt, his access-to-courts claim, which is pleaded in a conclusory fashion without supporting factual detail, fails to state a claim upon which relief may be granted.
V. Certificate of Appealability
Pursuant to28 U.S.C. § 2253(c)(1)(A), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under28 U.S.C. § 2254. A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right.28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.”Miller-El v. Cockrell, 537 U.S. 322 (2003). Because reasonable jurists could not disagree with the resolution of this petition, there is no basis for the issuance of a certificate of appealability.
VI. Recommendation
Based on the foregoing reasons, it is respectfully recommended that Johnson's motion to supplement the complaint (Doc. 40) be GRANTED, Johnson's petition for a writ of habeas corpus (Doc. 1) be DENiED, and that no certificate of appealability shall issue, as Johnson has not demonstrated “a substantial showing of the denial of a constitutional right.” 28 U.S.C § 2253(c)(2). In addition, it is recommended that Johnson's pending motion “to recall mandate and/or rule 60(b) motion to evaluate integrity of this court/request to be paroled via habeas corpus” (Doc. 37) and motion for injunctive relief (Doc. 39) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 12, 2022. Any party may obtain a review of the Report and Recommendation pursuant to 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.