Opinion
CIVIL ACTION NO. 04-1615.
August 27, 2004
MEMORANDUM
Plaintiff filed a Motion for a Preliminary Injunction. Following a hearing and additional briefing by the parties, I entered an order on June 7, 2004 granting the Defendants' Motion to Supplement the Record. A subsequent hearing was held on July 29, 2004, and the following findings are based upon that hearing as well as the one held on April 19, 2004.
I. FINDINGS OF FACT BASED UPON APRIL 19, 2004 HEARING
1. Plaintiff was granted commutation of his life sentence in 1995 with parole eligibility. He is now 76 years of age.
2. Ultimately, the Third Circuit and this court by its Order dated January 14, 2004, ordered that Plaintiff be released on parole within seven (7) days of receipt of the Order.
3. When, in compliance with that Order Plaintiff was released on parole, the Pennsylvania Board of Probation and Parole (the Board) imposed certain parole conditions. Of those conditions, the denial of Plaintiff's home plan is the single issue now before the court, the other two being no longer at issue. ( See Plaintiff's post hearing memorandum of law at p. 2).
4. According to Plaintiff, in seeking relief from the denial of his home plan, he is not seeking relief that will affect the fact or duration of confinement. Instead, he seeks relief to prevent irreparable injury that will follow from the imposition of unconstitutional conditions of parole. ( Id. at p. 2)
5. Specifically, the Board rejected the home plan submitted by Plaintiff wherein he would have lived with his nephew Calvin Mickens, his wife Catherine, and their 18 year-old son James in the Mickens' single family home in Tobyhanna, Monroe County, Pennsylvania. The house itself is located in a gated community known as Pocono Country Place. It contains four bedrooms, two bathrooms and is in good condition.
6. Calvin Mickens works at Kirby Forensic Psychiatric Center in New York as a safety and security officer.
7. Catherine Mickens works as a supervisor for the mentally handicapped in New York.
8. The Mickens travel together by car to New York five days a week, leaving their home in Tobyhanna around 1:00 P.M. and returning approximately 2:00 A.M. the next day.
9. Calvin Mickens does not believe there is any particular crime problem where he lives, but in some sections of the development about two to three miles from his home, there are some crime problems.
10. In Calvin Mickens' opinion, about 60 percent of the homes in the community he lives have children under 18 year of age living in them.
11. There is also a day care center five miles away and two community centers or playgrounds for children, one a mile away and another about two miles away.
12. Calvin Mickens testified that only his 18 year-old son lives with them and Plaintiff could live with them rent free.
13. Michael Baker, a parole agent in the Scranton district office, had an occasion to do an evaluation of Plaintiff's home plan with his nephew.
14. To that end, he visited with Calvin and Catherine Mickens on January 25, 2004 and discussed the home plan with them.
15. Baker also testified that he visits Pocono Country Place at least once a week. He has been in Pocono Country Place at all times of the day and observed hundreds of busloads of children coming into the community to be dropped off.
16. He is concerned, in regard to Plaintiff's proposed home plan, about the number of children who live in the community. The homes and neighborhoods are close together.
17. Baker, as part of standard procedure, contacted the local police; in this case, the Pocono Regional Police Department. Due to the nature of Plaintiff's offense, the fact that the area where his nephew lives is a rising high crime area, and the numerous children in and around the development, Baker recommended that Plaintiff's home plan be rejected.
18. Baker described the nature of the problem as far as crimes are concerned as being a great deal of drug abuse, drug dealing, some gang activity, and usual property type offenses.
19. Baker found nothing unacceptable about the Mickens family or the condition of the home.
20. His primary reason for rejecting the plan was his concern of a risk to the safety of the community.
21. Joseph Smith, the District Director of the Scranton District, agreed with Baker and also added that the number of children in the neighborhood and the five days a week that nobody is in the home with Petitioner was of concern to him.
22. Anthony Mondello, who supervises sex offenders located within Allentown City, testified that Plaintiff never requested any home plan other than the one that was rejected; i.e., living with his nephew.
23. Mondello did give Plaintiff a list of landlords where if Plaintiff were to elect to live, he would approve the home plan. These were all in Allentown where Plaintiff has no family ties.
24. Mondello also gave Plaintiff the name of an employer, a shoe repairman, and Plaintiff reported back that he just had to wait for cataract surgery so he would be able to do this job.
25. Jim McCloskey testified on behalf of Plaintiff. He confirmed essentially that there was a good chance that Plaintiff would have a job as a shoe repairman after his surgery. He would wait on customers of all ages.
26. McCloskey described the area of the shoe shop as being residential with a grade school about 20 yards up the street.
27. McCloskey also visited two of the landlords recommended by Mondello and described the living conditions which were basically a single room with a shared hallway bathroom with other tenants. He described the rooms as dismal and depressing. The one that had a kitchenette and its own bathroom was not in good condition.
28. The neighborhood consisted of apartment buildings adjoined and some retail outlets. A three-story Children's Center was nearby. Another possible landlord owned a building in a neighborhood teeming with children according to McCloskey.
29. While the Mickens' neighborhood and the housing neighborhood in Allentown are dramatically different in their respective settings (Rural v. City), both settings experience significant crime, are the homes to hundreds of children under 18 and are near schools and day care centers. Like the Mickens home, there is no supervision in the Allentown residences.
30. The personal living conditions are better at the Mickens home, but opportunity to work at his old trade exists for Plaintiff in Allentown.
31. In Plaintiff's post hearing memo, counsel states that if Plaintiff lives in the Poconos, the Pennsylvania Prison Society has guaranteed that it will find employment and provide transportation for Plaintiff.
II. FINDINGS OF FACT BASED UPON JULY 29, 2004 HEARING
32. Plaintiff presently lives in an apartment at 627 Hamilton Street in Allentown, across the street from the Allentown Community Corrections Center.
33. The apartment has a kitchenette, living room, bedroom, small pantry and little entryway.
34. The apartment is clean and well kept. The outside hallways, the main common areas, and the elevator is clean.
35. Plaintiff's parole supervision consists of visits by his parole officer three or four times a month. Other than that, no one supervises him in any sense of the word.
36. A witness with a doctorate in clinical psychology, who is a licensed psychologist in Pennsylvania, and a witness who is a board certified psychiatrist testified on behalf of Defendants and Plaintiff, respectively. Essentially, they were supportive of the respective positions taken by their clients in this case. In the case of Defendants, the witness opined that the placement in the Allentown area is better than with Plaintiff's family for many reasons, including the safety of the community where Plaintiff will not be living with a support system in denial which can facilitate the Plaintiff's increase in risk. Plaintiff's witness disagreed with this and opined that the relatively best position given Plaintiff's particular circumstances is with the family.
37. Both opinions in #36 above were offered for litigation and did not form the basis for Defendants' rejection of Plaintiff's home plan.
38. The Plaintiff himself did not testify at either hearing. Parole Officer Mondello testified that Plaintiff likes where he is staying now and told Mondello he was considering not even moving because he likes it so much. Apparently, he expressed a different thought to his advocate, Mr. McCloskey, to whom he stated that since he is living at 627 Hamilton, for the first time in his life he feels free and that's a blessing, but at the same time, he would love to be free and also living with his family.
III. CONCLUSIONS OF LAW
In the Third Circuit opinion granting Plaintiff's motion for habeas relief and directing the Board to release him on parole, the court stated:
The combination of willful/noncompliance, bad faith, and a sufficient inference of retaliation or vindictiveness on the part of the Board convinces us that it would be futile to further remand Thomas's parole application to the Board for a fair disposition under the pre-1996 regime of parole laws and guidelines.
Thus, there is an underlying position which the Board has taken in the past which, in my judgment, must be factored into any consideration of the present Board action.
The Board argues that Baker, who made the recommendation against the Mickens' home, had no association with prior habeas corpus litigation. I have no reason to doubt that. Whether Plaintiff's particular cases is nevertheless known throughout the community of parole officers, especially those with long careers as Baker, is another matter. There was no direct evidence on this issue.
Nevertheless, the denial of Plaintiff's home plan for the reasons stated strikes me as somewhat reminiscent of what the Third Circuit found in the parole application hearings. The inference of retaliation or vindictiveness could arise from what appears to be a distinction without a substantial difference in the home plan the Board rejected and the one it would approve.
However, but for the history of this case, I do not think the Board's rejection of the home plan, as unreasonable as it may appear, would rise to the level of a constitutional depravation. As the Third Circuit instructed in its initial opinion in this case, a court must be exceedingly reluctant to substitute its own judgment for that of the Board's. The reasons for that are obvious.
In the case now before me then, seeking a preliminary injunction, I must determine if the Plaintiff has shown that he will likely prevail on the merits of his claims that the denial of his home plan violated any constitutional rights he may have. As Plaintiff argues, there is a basic right to be free from arbitrary action by the government. As applied to the facts of this case, Plaintiff argues that his choice to live with a loving, caring family after 40 years of incarceration, particularly where there is almost no alternative given the restrictive conditions imposed by the Board, implicates substantive due process concerns.
But the problem with Plaintiff's argument is that he does have a viable alternative. It appears that it is not the choice he would make, but living in Allentown where he is now living is a viable alternative. In the final analysis of the facts, this decision is not arbitrary. Of course, if I could find that the decision of the Board was made in retaliation or vindictively, the plaintiff would be entitled to relief, but a hunch in that regard is not sufficient to make such a finding. The evidence presented at the hearings simply does not support it.
Plaintiff next argues that denial of his home plan implicates his due process liberty interest and cites United States v. Loy, 237 F. 3d 251 (3d Cir. 2001) as support for his argument. Loy is not particularly on point, with the exception of footnote 5 quoted in Plaintiff's brief, which essentially points out that the liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime ( citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972) — and restrictions on his freedom must be finetuned; 237 F.3d at 267, and the deprivation of a constitutional right must be no greater than necessary to meet the goals of parole (in this instant case, protection of children under 18). Plaintiff argues that prohibiting him from living with his family in the Poconos because there are children in the neighborhood is an exaggerated and unconstitutional response to the alleged risk he poses to children. But the fact is that Plaintiff was convicted of the rape and murder of a 12 year-old girl. It is hard to say that it is an exaggerated response to reject a home plan where the home is located in a neighborhood where 60 percent of the homes have children under 18 years of age and where busloads of children are dropped off every day, compared to Plaintiff's present approved home plan located across the street from the Community Confinement Center in Allentown. To be sure, there are schools, day care centers and young children around where Plaintiff presently resides. But, the communities are clearly different and the concerns expressed by Agent Baker and Director Smith are based upon reasons which they as experienced parole officers deemed important. The age of Plaintiff may make him less of a threat, but there is no evidence that it removes the threat.
Fine tuning or a deprivation no greater than necessary are issues which Defendants have resolved by the explanations of experienced Parole Officers Baker, Mondello and Smith. The opinion of the clinical psychologist, while after the home plan was rejected, supports that decision. The deprivation here is fine tuned to affect only living in Plaintiff's home in Tobyhanna.
Plaintiff's principal argument is that he has a fundamental constitutional right to live with his family. There is no case which says that a person in Plaintiff's status has such an unfettered right. Plaintiff cites Doe v. Miller, 298 F. Supp. 2d 844 (S.D. Iowa 2004) in support of his argument. That case, dealing with an Iowa statute prohibiting a person who had committed a sex offense against a minor from residing within 2000 feet of a school or child care facility, is not the issue before this court.
As previously suggested in this opinion, there is insufficient evidence to show retaliation or vindictiveness on the part of the Board. There is also no unconditional constitutional right for Plaintiff to live with family members of his choice.
To the extent that Plaintiff is arguing denial of substantive due process in the rejection of his home plan, the Board's conduct simply does not reach the threshold of conduct which shocks "the contemporary conscience"( see County of Sacramento v. Lewis, 118 S.Ct. 1708 (1998) discussion beginning on page 1716 (part B) through 1721).
Because Plaintiff has not shown a likelihood of success on the merits, he is not entitled to injunctive relief.
As a final note, as stated in Finding of Fact 38, Plaintiff did not testify. The implication from that finding, based upon the statements from both Mondello and McCloskey, which I find to be truthful, is that Plaintiff himself is clearly ambivalent about what he really wants. This ambivalence is certainly understandable when one considers the significant difference between the home plan rejected and the one he is now part of. In this regard, see discussion at July 29, 2004 Notes of Testimony, p. 89, line 17 through 92, line 4. This, however, does not suggest irreparable harm to Plaintiff, absent the deprivation of any constitutional right, a finding not supported by this record.
An order follows.
ORDER
AND NOW, this 27th day of August, 2004, it is hereby ORDERED that Plaintiff's Motion for a Preliminary Injunction (Docket No. 2) is DENIED.