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MCCRERY v. MARK

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 28, 1993

MICHAEL McCRERY
v.
DOMINIC MARK

The opinion of the court was delivered by: LOUIS H. POLLAK

MEMORANDUM

 Plaintiff Michael McCrery, an inmate at S.C.I. Graterford, has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the continued presence in his prison files of an erroneous 1990 psychological evaluation -- completed by defendant Dominic Mark, a corrections counselor at S.C.I. Graterford -- impinges upon a variety of plaintiff's liberty interests in violation of the Fourteenth Amendment. *fn1" Plaintiff seeks injunctive relief in the form of the expungement of the 1990 case review from his prison file and the insertion of a report into his file disclaiming the allegedly incorrect statements in the 1990 case review. Defendant has filed a motion for summary judgment.

 I. Facts

 When considering a summary judgment motion, the court must take as true the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). For purposes of this summary judgment motion, then, the facts of the case are as follows:

 In August of 1988, plaintiff was convicted of the first degree murder of his estranged wife and was sentenced to life in prison. On August 8, 1988 he was transferred to E.E.C.C. Graterford and he was soon admitted to the Mental Health Unit there for assessment and classification. On or about August 26, 1988, plaintiff received classification for S.C.I. Graterford.

 Defendant Mark has been a correctional counselor at S.C.I. Graterford since April 1989. Mark Aff. at P1. McCrery was one of the inmates assigned to Mark for monitoring. According to defendant, his responsibilities as a counselor involved preparing a prescriptive program plan about once a year, completing an annual case review, and attempting to contact the inmate at least once every six months. Id. at P3.

 At issue in plaintiff's complaint is the defendant's July 3, 1990 Annual Case Review ("ACR") of plaintiff. See Plaintiff's Ex. 13; Defendant Ex. H. The report, completed in plaintiff's absence since plaintiff refused to attend the scheduled meeting (Complaint at P4), states that defendant's "Areas of Concern" are plaintiff's "mental health," "assaultiveness," and "suicidal" tendencies. Id. The ACR further states:

 

1. McCrery continues to refuse to honor treatment passes.

 

2. Recommend Impulse Control Group.

 

3. Report any problem [to] counselor, Mental Health, or other appropriate staff member.

 

4. He has maintained a clear conduct record since reception.

 Id. In place of plaintiff's signature, defendant wrote "in absentia." Id. Defendant explains that he based plaintiff's July 3 ACR on defendant's prior contacts with plaintiff and on a review of earlier records and reports concerning plaintiff. See Mark Affidavit at P31; see also Plaintiff's Ex. 4.

 Plaintiff mailed his present complaint to the Clerk of the Court for the Eastern District of Pennsylvania on or about July 12, 1990 *fn2" -- nine days after the July 3 ACR was completed. In his complaint plaintiff contends that defendant's descriptions of plaintiff as assaultive, suicidal and in need of impulse control are "pejorative labels" that have no substantive basis. Complaint at PP5, 6, and 8. Plaintiff argues that his records do not support defendant's conclusions, particularly with regard to his supposed suicidal ideation. Plaintiff did not file a grievance with the prison officials regarding the allegedly false July 3 ACR. Cf. Defendant's Ex. L (copy of Administrative Directive: Commonwealth of Pennsylvania Bureau of Corrections Consolidated Inmate Grievance Review System).

 In the time between the filing of plaintiff's complaint and the filing of defendant's motion for summary judgment on August 2, 1991, the plaintiff has undergone two further psychological evaluations. On November 29, 1990 the Chief Psychologist at S.C.I. Graterford, Dr. Lance Couturier, examined plaintiff. And on January 17, 1991 defendant conducted a personal examination of plaintiff. Both examinations state that plaintiff does not show present signs of suicidal ideation, assaultiveness or problem with impulse control. See Plaintiff's Ex. 4; Plaintiff's Ex. 14.

 II. Discussion

 Plaintiff seeks two forms of injunctive relief: first, that defendant should enter into plaintiff's prison record a report disclaiming the false descriptions in the July 3 ACR; and second, that the July 3 ACR be expunged from the prison file. Complaint at PP D, E. I will address each of these in turn.

 A. A Disclaimer

 From this court's view, plaintiff has already received the equivalent of a disclaimer. While his prison file does not contain a report or letter specifically deeming the statements in the July 3 ACR false, there are two psychological examinations of plaintiff completed since the challenged ACR, both calling into question its reliability. These examinations both disclose that the July 3 ACR was based on a review of plaintiff's records, not on a personal examination. Moreover, both observe that plaintiff is not currently exhibiting signs of the supposed areas of concern -- assaultiveness, lack of impulse control, and suicidal ideation -- listed in the July 3 ACR.

 In his November 29, 1990 examination of plaintiff, Dr. Courturier reported:

 

[Mr. McCrery] is an intellectually gifted individual . . . The depression and suicidal ideation which were described in Mr. McCreary's [sic] earlierreports [sic] did not appear in the present evaluation. No salient evidence of a thought or emotional disorder was noted. Nor does the inmate appear assaultive or display impulse control problems. Past ACRs of 1989 and 1990 which identified concerns in the area of suicide, impulse control and assaultive behavior were based on a review of prior records and reports. . . . [Mr. McCrery] does not appear to be suicidal or assaultive and appears to display adequate impulse control.

 Plaintiff's Ex. 4. In addition, Dr. Courturier notes that "the inmate . . . is presently suing his counselor." Id. In defendant's January 17, 1991 ACR of plaintiff -- an evaluation signed by plaintiff -- defendant indicated that plaintiff's "mental health," "assaultiveness," and "suicidal" ideation were still "Areas of Concern." Defendant's Ex. K. However, this time defendant qualified his statements. With respect to plaintiff's alleged "assaultiveness," defendant stated that this conclusion was "based on [plaintiff's] offense only." Id. Defendant further explained, "since [plaintiff's] reception, he has a clear conduct record. Staff has not reported any assaultive behavior. A recent psychological evaluation does not indicate any assaultive concerns." Id. As for plaintiff's "suicidal" tendencies, defendant made clear that the conclusion was "based on prior records," and that "[a] recent psychological evaluation does not list any suicidal concerns." Id. Plaintiff has not challenged the January 17 ACR either by presenting a grievance to prison officials or by filing suit.

 While the newer examinations do not expressly disclaim the July 3 ACR, they do the equivalent. They discredit the ACR to the extent that they point out that the earlier report is neither based on a personal examination of plaintiff nor accurately reflective of plaintiff's current condition. Moreover, Dr. Courturier's reference to the present suit against plaintiff's counselor further advises the person reviewing plaintiff's files to question plaintiff's earlier evaluations. The newer examinations make it highly unlikely that the July 3 ACR will be relied upon in any significant way.

 B. Expungement

 In certain limited circumstances, an inmate has the constitutional right, founded on the principles of due process, to have incorrect information expunged from his record. See Paine v. Baker, 595 F.2d 197, 201 (4th Cir.), cert. denied, 444 U.S. 925, 62 L. Ed. 2d 181, 100 S. Ct. 263 (1979); see also United States Ex Rel. Silverman v. Comm. of Penn., 527 F. Supp. 742, 745 (W.D. Pa. 1981), aff'd 707 F.2d 1395 (3d Cir. 1983). "Expungement is ordinarily reserved for remedying the denial of an individual's constitutional rights." Coles v. Levine, 561 F. Supp. 146, 153 (D. Md. 1983)(citing U. S. v. McLeod, 385 F.2d 734, 750 (5th Cir. 1967)), aff'd 725 F.2d 674 (4th Cir. 1984). Under Paine -- a case frequently looked to on the matter of expunging prison records *fn3" -- expungement may be appropriate where plaintiff can show that the following three conditions exist:

 

(1) that information is in his file, (2) that the information is false, and (3) that it is relied on to a constitutionally significant degree.

 Paine, 595 F.2d at 201. This three-part standard, the Fourth Circuit believed, "reflected a proper balancing of the inmates' need for some safeguard, the proper circumstances in which the safeguard may be invoked, and the potential burden on prison administrators." Id.

 Defendant argues that plaintiff has failed under Paine to claim that his constitutional rights have been violated by the presence of the July 3 ACR in plaintiff's prison file. Accordingly, defendant contends that he is entitled to summary judgment on plaintiff's § 1983 claim. Under Fed.R.Civ.P. 56(c), a district court may enter summary judgment where the moving party has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

 There is no dispute that plaintiff has satisfied the first Paine condition. Plaintiff alleges that the challenged ACR is in his prison file, and defendant appears to concede this. As for the second condition, plaintiff suggests in his legal memorandum that defendant has admitted that the information in the July 3 ACR is false. Although I do not interpret defendant's papers as making this concession, I will assume for purposes of argument that a genuine issue of material fact exists as to whether the statements made on the July 3 ACR are erroneous. *fn4" I make this assumption because I believe defendant's motion can be resolved on consideration of the third Paine condition: whether the information in plaintiff's file has been "relied on to a constitutionally significant degree."

 On review, this court finds that plaintiff has failed to satisfy the third condition in two respects. First, and most importantly, plaintiff has not claimed that the supposedly false information in his file has in fact been relied upon to any degree, let alone "to a constitutionally significant degree." Plaintiff's speculation that the false information will be used to his detriment at some future date is insufficient under Paine to trigger an inmate's entitlement to -- and a prison administrator's obligation to direct -- the expungement of the supposedly false information.

 Second, the ways in which plaintiff predicts the July 3 ACR will be relied upon, assuming it will be some day, are not constitutionally significant. Plaintiff suggests that the report could affect his eligibility for parole, commutation or pardon. See Plaintiff's Mem. in Opp. at 16. In addition, plaintiff contends in his complaint that the July 3 ACR will "preclude plaintiff from certain programs and considerations in the institution wherein he is confined." Complaint at P 6. *fn5"

 Because plaintiff is an inmate, the inquiry into what interests are liberty interests entitled to due process protection is somewhat unusual since, where there is "a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Meachum v. Fano, 427 U.S. 215, 224, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). This is not to say that a validly convicted inmate loses all claim to due process protection. A state may confer by statute enforceable liberty interests in the prison setting. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989)(citing Board of Pardons v Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) (recognizing state-created liberty interest in parole); Greenholtz v. Nebraska Penal Institution, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979)(same); Wolff v. McDonnell, 418 U.S. 539, 556-72, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)(recognizing state-created liberty interest in good-time credits); Vitek v. Jones, 445 U.S. 480, 487-94, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980)(recognizing state-created liberty interest in freedom from involuntary transfer to mental hospital); Hewitt v. Helms, 459 U.S. 460, 468, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (recognizing state-created liberty interest in freedom from more restrictive forms of confinement)). Specifically, "a State creates a protected liberty interest by placing substantive limitations on official discretion" such that the inmate may reasonably form an expectation of entitlement. *fn6" Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). See also Thompson, 490 U.S. at 462. I will address each of the interests plaintiff claims to be at stake to determine whether any is a liberty interest as that term has been defined by the Court.

 Plaintiff argues that under Greenholtz, in which Nebraska inmates were found to have a liberty interest in parole, he has a protected interest in parole. However, Greenholtz does not stand for the proposition that a general liberty interest exists in the right to release on parole. To the contrary, the Court states: "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7. See also Board of Pardons v. Allen, 482 U.S. 369, 373, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987). The Court recognized that in some cases, though, states may construct a parole system that creates not just the possibility of parole, but rather the reasonable expectation of parole. In that situation, the prospect of release on parole is a liberty interest entitled to due process protection. In the Court's opinion, the Nebraska parole statute established an expectation of parole since the statute used mandatory language directing the grant of parole unless one of four disqualifying conditions was found by the board to exist. Id. at 12.

 By contrast, the Pennsylvania Probation and Parole Act, 61 Pa. Cons. Stat. Ann. § 331.21 cannot be said to create an expectation of parole. Most importantly, under 61 Pa. Cons. Stat. Ann. § 321, inmates sentenced to life imprisonment, such as plaintiff, are not even eligible for parole. Thus, plaintiff cannot seriously argue that he reasonably anticipates release on parole.

 Still, plaintiff suggests that the law might change some day such that he might be considered for parole-release. Even if this occurred, plaintiff would have no reasonable expectation of parole. As compared to the Nebraska statute with its mandatory language, the Pennsylvania Probation and Parole Act gives the parole board broad discretion to:

 

release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment, whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby.

 Accordingly, Pennsylvania courts considering the issue in the wake of Greenholtz have concluded that the statute has not created a liberty interest in parole. See, e.g. Counts v. Penn. Board of Probation and Parole, 87 Pa. Commw. 277, 487 A.2d 450, 453 (Pa. Cmwlth. 1985)(citing Commonwealth of Penn. v. Brittingham, 442 Pa. 241, 275 A.2d 83 (Pa. 1971); Blair v. Penn. Board of Probation and Parole, 78 Pa. Commw. 41, 467 A.2d 71 (1983), cert. denied, 452 U.S. 977, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1984)).

 Nor does plaintiff have a liberty interest in the possibility of a pardon or commutation. Like the decision to grant release on parole, the decision concerning pardon or commutation is not a purely fact-based calculation wherein an inmate could derive a sense of entitlement, but it is a discretionary and predictive determination. Noting this similarity of processes, the Supreme Court stated in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981):

 

Greenholtz. . . compels the conclusion that an inmate has "no constitutional or inherent right" to commutation of his sentence. . . . In terms of the due process clause, a . . . felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation that he will be transferred to another prison; it is simply a unilateral hope.

 452 U.S. at 464-65 (citing Greenholtz, 442 at 11). See also Brooks-Bey v. Reid, 1992 WL 121703 (E.D. Pa.), aff'd 983 F.2d 1049 (3d Cir. 1992)(finding no liberty interest in modification of sentence through pardon or commutation).

 Finally, there is also no liberty interest in obtaining certain work assignments or in participating in certain prison programs. According to the Fourth Circuit in Paine :

 

an allegation that false information was relied on to make . . . a decision [regarding internal matters like work assignments] would not be constitutionally significant.

  595 F.2d at 202. See also Brooks-Bey, 1992 WL 121703 (finding plaintiff's liberty interests not implicated because he was denied a "trust job" in the prison).

 C. Failure to file a grievance

 Even if plaintiff had alleged the deprivation of certain liberty interests, this court would still be compelled to dismiss plaintiff's § 1983 claim. Defendant has argued that this court lacks jurisdiction to hear plaintiff's claim since plaintiff failed to file a grievance with defendant or the prison authorities. As support, defendant cites Paine in which the Fourth Circuit explained:

 

as a jurisdictional predicate to filing an action under § 1983, the inmate must allege that the prison officials have deprived him of this right [to the expungement of erroneous information in prison files]. This means that the application for expunction must be made in the first instance to prison authorities.

 

This is not a requirement of exhaustion, but rather a requirement of jurisdiction. State prison authorities cannot be said to have denied an inmate's right to have erroneous information expunged from his file, unless they have been requested to do so and have refused.

 

...

 

An inmate who believes his file to contain false information should notify prison officials in writing, specifying what information he believes is false and what the true facts are. *fn7"

 Paine, 595 F.2d at 202. (citations omitted). Accord D. Haskins v. Lears, 547 F. Supp. 869, 870-71 (D. Md. 1982)(citing Bukhari v. Hutto, 487 F. Supp. 1162 (E.D. Va. 1980)). Cf. Farinaro v. Coughlin, 642 F. Supp. 276, 282 (S.D.N.Y. 1986)(making note of fact that inmate filed grievance with prison before filing § 1983 suit to expunge record). I am not persuaded that the plaintiff's failure to file a grievance acts as a jurisdictional bar to plaintiff's claim. Nonetheless, I consider plaintiff's failure to ask the prison authorities for an appropriate correction of his records as relevant to the question of whether plaintiff has properly stated a claim under § 1983.

 "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person action under color of state law." West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). Plaintiff alleges that the continued presence of the allegedly false July 3 ACR in his prison files violates his due process rights under the Fourteenth Amendment. However, as discussed above, an inmate does not have a generalized constitutional right to a prison file free of inaccurate information. The continued presence of false information in an inmate's records may be a constitutional violation in those limited circumstances in which the inmate has demonstrated that the erroneous information in an inmate's file has been relied upon to deprive an inmate of a constitutional right. See Paine, 595 F.2d at 201; United States Ex Rel. Silverman, 527 F. Supp. at 745. See also Coles v. Levine, 561 F. Supp. 146, 153 (D. Md. 1983)(citing U. S. v. McLeod, 385 F.2d 734, 750 (5th Cir. 1967)), aff'd 725 F.2d 674 (4th Cir. 1984). Notably, there are two constitutional rights at play here: the act of relying on false information to deprive an inmate of one constitutional right gives rise to a second constitutional right to have false information corrected.

 The right to have false information eliminated from a prison file is deprived in a manner actionable under § 1983 when a defendant refuses under color of state law to remove or make right the erroneous information. Necessarily, a party can not have refused to correct the inmate's files if he has not first been asked to do so. It is in this way that I agree with the court's holding in Paine that an inmate must ask the defendant(s) or prison authorities for the appropriate modification of his prison files before bringing a § 1983 claim.

  In the present matter, defendant contends that plaintiff never presented his objections to the July 3 ACR to defendant or other prison officials. Defendant swears in his affidavit that plaintiff neither filed a formal grievance nor recommended to defendant that the July 3 ACR should be changed. Plaintiff does not dispute these assertions. Rather, plaintiff contends that he did not have to file his objections with prison officials. According to plaintiff, the prison policy restricting inmate access to prison records "unless production is pursuant to a court order" suggests that no extrajudicial path may be used. Plaintiff's Mem. in Opp. at 18 (quoting administrative directive BC-ADM 003, V, D, 1).

 Plaintiff's argument is inapposite *fn8" for it ignores the basic problem with his complaint. Plaintiff has neither alleged that he made his objections concerning the July 3 ACR known to defendant, nor, more importantly, has plaintiff alleged that defendant refused to modify the supposedly erroneous ACR from plaintiff's file despite plaintiff's objections. Without these allegations, plaintiff's complaint fails to assert that defendant acted to deprive plaintiff of his constitutional right to have his file free of false information. Thus, plaintiff has failed to state a claim under § 1983.

 III. Conclusion

 For the foregoing reasons, defendant's motion for summary judgment will be granted.

 MAY 28, 1993

 POLLAK, J.

 ORDER

 For the reasons stated in the accompanying memorandum, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED.

 MAY 28, 1993

 POLLAK, J


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