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PRESLEY v. MORRISON

December 10, 1996

MARVIN PRESLEY, Plaintiff,
v.
CLIFFORD MORRISON, Defendant.



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 December , 1996

 Plaintiff Marvin Presley filed this action pro se on September 9, 1994, claiming that Defendant Clifford Morrison had violated his Fourth, Eighth and Fourteenth Amendment rights. Presley alleges that he was unlawfully arrested, subjected to cruel and unusual punishment, and denied due process of law when Morrison, a probation officer, arrested him for an alleged violation of his probation. Morrison has moved for summary judgment. After considering the facts in light most favorable to Plaintiff, the non-moving party, I will grant Morrison's motion.

 FACTS:

 On August 1, 1990, Presley entered a guilty plea in the Philadelphia Court of Common Pleas to a charge of the robbery of his ex-girlfriend Mary Byrd. He was sentenced to a term of time served to 23 months, to be followed by one year of probation. Presley was subsequently paroled and placed under the supervision of the Philadelphia Adult Probation Department. Morrison was his probation officer.

 In April, 1992, Presley's parole was revoked after a hearing at which it was found that he had harassed and threatened Byrd. However, on January 13, 1993, Presley was again paroled, so that he might complete his G.E.D. The sentencing judge, the Honorable Legrome Davis, explicitly conditioned Presley's parole and probation on his leaving Byrd alone, maintaining employment, and pursuing a G.E.D. Presley claims that Morrison was not his probation officer at the time of this release.

 On May 17, 1993, Byrd called Morrison by telephone complaining that Presley had assaulted her. The next day Morrison left a message at Presley's home instructing him to report to the probation department within 24 hours. On May 19, Presley reported to Morrison and denied having assaulted Byrd.

 On May 25, 1993, the day before Presley's next scheduled appointment with the probation department, Morrison received a phone call from Detective Raymond Behl of the Philadelphia Police Department, reporting that an arrest warrant had been issued for Presley on the basis of the assault on Byrd. Behl followed this by faxing a copy of the arrest warrant to Morrison. Morrison told Behl that Presley was scheduled to report to the Probation Department on the following day. On May 26, 1993, when Presley reported to the probation department, he was handcuffed by Morrison and detained for several hours until the arrival of Philadelphia police officers, who then formally arrested him.

 On June 24, 1993, after a hearing and finding that Presley had failed to abide by the conditions of his release, the court revoked his parole and sentenced him to 2-1/2 to 5 years imprisonment. This sentence was affirmed on appeal by the Pennsylvania Superior Court. Presley did not seek a petition for allocatur to the Pennsylvania Supreme Court. However, he filed a petition under the Post Conviction Relief Act that was denied by the Court of Common Pleas. An appeal to the Pennsylvania Superior Court of that denial is now pending.

 Presley now brings this action, claiming that Morrison arrested him "acting on an unsupported accusation by plaintiff's ex-girlfriend and without any investigation...although no criminal charges were filed against plaintiff...." Presley further alleges that he had complied with the conditions of his parole and was not in violation at the time of his arrest.

 DISCUSSION:

 I. Cruel and Unusual Punishment Claim

 To make out a claim for cruel and unusual punishment under the Eighth Amendment, a plaintiff must show that punishment has been imposed which included "elements of severity, arbitrary infliction, unacceptability in terms of contemporary standards, or gross disproportion...." Ingraham v. Wright, 430 U.S. 651, 658, 97 S. Ct. 1401, 1405, 51 L. Ed. 2d 711 (1977). Not only has plaintiff failed to demonstrate that any of these elements were present, he has failed to allege that Morrison punished him at all. He has alleged only that: (a) Morrison arrested him without probable cause; (b) his incarceration subjected him to overcrowded prison conditions and a hostile environment; and (c) his probation was revoked and he was resentenced to two to five years. Therefore, as to punishment, no Eighth Amendment claim lies against Morrison.

 With regard to his arrest, Presley does not have an Eighth Amendment cruel and unusual punishment claim. "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Ingraham, at 671, n. 40, 97 S. Ct. at 1412, n. 40; Graham v. Connor, 490 U.S. 386, 398, 109 S. Ct. 1865, 1873, 104 L. Ed. 2d 443 (1989). Presley has failed to explain what connection Morrison has to either the conditions of his ...


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