v. Button, 332 Pa. Super. 239, 247-48, 481 A.2d 342, 346 (1984).
Thus, under Pennsylvania law, the granting of parole is not a constitutionally protected liberty interest. See e.g. McCrery v. Mark, 823 F. Supp. 288, 293-94 (E.D. Pa. 1993) ("the Pennsylvania Probation and Parole Act [cite] cannot be said to create an expectation of parole"); Tubbs v. Pennsylvania Bd. of Probation and Parole, 152 Pa. Commw. at 630, 620 A.2d at 586 ("it is well settled under Pennsylvania law that a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his sentenced maximum term"); Reider v. Comm., Bd. of Probation and Parole, 100 Pa. Commw. 333, 342-43, 514 A.2d 967, 971 (1986) (same).
It is important to recognize that the issue in this case is whether at a preliminary interview for a parole decision, certain offhand comments made by a parole official served to vest the plaintiff with certain due process rights which were subsequently infringed upon by an official decision to deny parole. Such a scenario is clearly distinguishable from cases in which parole is actually granted at a final parole hearing, and then is either rescinded or revoked. If plaintiff had been officially granted parole, and then had his parole rescinded, plaintiff would have some minimal due process protections under Pennsylvania law. See e.g. Tippins v. Luther, 869 F. Supp. 331, 337-38 (W.D. Pa. 1994) (due process guarantee of a timely hearing). If plaintiff had actually been released on parole and then had his parole revoked, plaintiff would have a legitimate liberty interest in parole with significant due process protections. See Morrissey v. Brewer, 408 U.S. 471, 484-89, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) (enumerating due process protections for parolees at revocation hearings, including notice, timely hearing, right to present witnesses, right to confront evidence and adverse witnesses, etc.). However, the case at bar does not invoke the due process protections of either the rescission or revocation scenarios.
In summary, neither the Federal Constitution nor state law provides plaintiff with any grounds for relief for his first claim. Plaintiff's § 1983 must be dismissed accordingly.
III. MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(1)
Rule 12(b)(1) permits the court to dismiss an action for lack of jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1). Defendants move to dismiss plaintiff's second claim on 12(b)(1) grounds, claiming that this court lacks jurisdiction to consider it.
Plaintiff's second claim is based on the allegation that PBPP, in denying him parole, failed to inform him of his right to appeal its decision. Plaintiff also argues that, by not creating or maintaining an appeal system, defendants violated the Pennsylvania Constitution's provision that ensures a right to appeal a decision of an administrative agency. See Complaint, § IV, P1, 3 (basing claim on "Pennsylvania Constitution Article 5 § 9 Right of Appeal"). In his complaint, plaintiff does not indicate the intended meaning of the terms "appeal" and "appeal system". It is unclear whether plaintiff is referring to an administrative appeals system (for example, a higher level parole board reviewing the decisions of the PBPP), or a judicial appeals system (in other words, an immediate appeal to the courts rather than an appeal within the administrative system). I therefore will discuss plaintiff's claim under both interpretations.
If plaintiff is referring to administrative review procedures, Pennsylvania law does not support his claim. Under Pennsylvania law, all decisions made by PBPP to deny parole are submitted to a Pardon Board for review. Upon review, the Pardon Board has the authority to overturn a decision to deny parole, and can order immediate parole when it deems appropriate. See Pennsylvania Probation and Parole Act, 61 Pa. Stat. Ann. § 331.21 (1989). The decision of the Pardon Board is final; under Pennsylvania law, a prisoner does not have the right to administratively appeal its determination. See Pennsylvania Administrative Agency Law, 2 Pa. Cons. Stat. §§ 101, 505-508, 701-704 (1978).
Therefore, if plaintiff is arguing that he has been denied to the right to an administrative appeal, his claim fails under Pennsylvania law.
If plaintiff is referring to his right to judicial review, this claim fails as well. Pennsylvania law clearly provides that a denial of a parole application by PBPP is not subject to judicial review. See Johnson v. Comm. Pennsylvania Bd. of Probation and Parole, 110 Pa. Commw. 142, 149, 532 A.2d 50, 53-54 (1987); King v. Comm., Pennsylvania Bd. of Probation and Parole, 111 Pa. Commw. 392, 394, 398, 534 A.2d 150, 151, 153 (1987); Reider v. Comm., Pennsylvania Bd. of Probation and Parole, 100 Pa. Commw. 333, 339-41, 514 A.2d 967, 970-71 (1986). Therefore, there is no basis for relief under the second interpretation of plaintiff's claim either.
Finally, I note that, because plaintiff has not presented a viable federal claim under § 1983, plaintiff's second claim can be dismissed for lack of jurisdiction. Plaintiff's second claim is a state law claim based on the Pennsylvania Constitution, and thus does not present an independent federal question.
This court is not bound to entertain such claims. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim...if the district court has dismissed all claims over which it has original jurisdiction"); Fed. R. Civ. P. 12(b)(1).
I therefore dismiss plaintiff's second claim on both state law and jurisdictional grounds.
Plaintiff's first claim is dismissed due to failure to satisfy the requirements for a § 1983 claim. Plaintiff's second claim is dismissed due to Pennsylvania law and lack of jurisdiction. I therefore order the following:
AND NOW, this 26th day of February, 1996, for the reasons stated in the Memorandum accompanying this Order, IT IS ORDERED that defendants' Motion to Dismiss is GRANTED.
Anita B. Brody, J.