United States District Court, M.D. Pennsylvania
June 28, 2005.
BRIAN FURMAN, Plaintiff,
BENJAMIN MARTINEZ, et al., Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Brian Furman, formerly*fn1 an inmate at the State
Correctional Institution at Cresson, Pennsylvania, commenced this
action with a pro se civil rights complaint filed pursuant to
the provisions of 42 U.S.C. § 1983. Named as Defendants are
Benjamin Martinez ("Martinez"), Chairman of the Pennsylvania
Board of Probation and Parole ("PBPP"), and several defendants
identified only as "John Does".*fn2 Plaintiff claims that
Defendants violated the Ex Post Facto clause of the
United States Constitution by applying improper parole standards to his
parole applications. For relief he seeks declaratory judgment,
compensatory damages (for loss of wages), punitive damages, costs
of suit, and all other appropriate relief. Pending before the
Court are: (1) Plaintiff's motion for partial summary judgment (Doc. 37); (2) Martinez' motion to amend his answer to
the complaint (Doc. 43) to add affirmative defenses; (3)
Martinez' cross motion for summary judgment (Doc. 45); (4)
Plaintiff's motion to amend/correct complaint (Doc. 50) to
identify John Doe defendants; and (5) Plaintiff's motion to amend
(Doc. 54) his prior motion to amend, to comply with Middle
District Local Rule 15.1. For the reasons that follow,
Plaintiff's motion for partial summary judgment will be denied,
Martinez' cross motion for summary judgment will be granted, the
complaint will be dismissed as to the remaining defendants under
28 U.S.C. § 1915(e)(2)(B)(ii), and the motions to amend will be
denied as moot.
The facts are undisputed. On December 11, 1987, Plaintiff pled
guilty to involuntary deviate sexual intercourse, terroristic
threats, false imprisonment, and indecent assault, and he was
sentenced to a term of imprisonment of eight (8) to twenty-one
(21) years. Plaintiff's minimum sentence date was March 13, 1995,
and his maximum sentence date was March 13, 2008. Although
Plaintiff was reviewed for and denied parole a total of eight (8)
times, in March, 2004 Plaintiff was paroled by the Pennsylvania
Board of Probation and Parole ("PBPP") to a Community Corrections
Center. Plaintiff is challenging his five (5) most recent parole
denials, claiming that the PBPP applied amended parole standards
to his parole applications in violation of the Ex Post Facto
Clause. Martinez claims that Plaintiff's claim is barred by the
applicable statute of limitations as it relates to the parole
denials prior to October 9, 2001, and Plaintiff's claim is
without merit as it relates to the remaining parole denials. III. Discussion.
A. Statute of Limitations.
In reviewing the applicability of the statute of limitations to
an action filed pursuant to § 1983, a federal court must apply
the appropriate state statute of limitations which governs
personal injury actions. North Star Steel Co. v. Thomas,
515 U.S. 29, 34 (1995); Kingvision Pay-Per-View, Corp., Ltd. v. 898
Belmont, Inc., 366 F.3d 217, 220 (3d Cir. 2004). Pennsylvania's
applicable personal injury statute of limitations is two years.
See 42 Pa.C.S. § 5524(7); Kost v. Kozakiewicz, 1 F.3d 176,
190 (3d Cir. 1993). The statute of limitations "begins to run
from the time when the plaintiff knows or has reason to know of
the injury which is the basis of the Section 1983 action."
Gentry v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.
1991) (citations omitted).
Plaintiff is challenging parole denials entered on June 23,
1998 (Doc. 1, Ex. E), July 6, 1999 (Id., Ex. G), March 12, 2001
(Id., Ex. I), March 22, 2002 (Id., Ex. T), and April 30, 2003
(Id., Ex. U). However, Plaintiff did not file his complaint
until October 9, 2003, approximately five (5) years after the
first challenged review. Consequently, Plaintiff's claims related
to the first three parole reviews are barred by Pennsylvania's
applicable two-year statute of limitations for personal injury
actions, and the Court will limit review to the last two (2)
B. Summary Judgment Standard
Both Plaintiff and Martinez have filed motions for summary
judgment. Under Federal Rule of Civil Procedure 56(c), summary
judgment may be entered only "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." The
parties do not dispute the facts, and the dispute resolves to a
legal interpretation of the parole decisions.
Moreover, Rule 56 provides that the adverse party may not
simply sit back and rest on the allegations contained in the
pleadings. Rather, the adverse party must show by affidavits,
pleadings, depositions, answers to interrogatories, and
admissions on file that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). When addressing a summary judgment motion, the
inquiry focuses on "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52 (emphasis added). It is also
well-settled that pro se complaints should be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
C. Ex Post Facto Claim
As previously stated, remaining at issue are Plaintiff's parole
denials of March 22, 2002 (Doc. 1, Ex. T) and April 30, 2003
(Id., Ex. U). Plaintiff challenges each on the grounds that
they violate the Ex Post Facto Clause of the United States
Constitution. Prior to 1996, the PBPP's internal policies
required it to weigh the inmate's rehabilitation and liberty
interest with the interest of public safety in parole
evaluations.*fn3 Mickens-Thomas v. Vaughn, 321 F.3d 374, 378 (3d Cir. 2003). Specifically, the
Court noted "that the [PBPP's] Manual of Operations and
Procedures recognized that `[p]robation and parole services
must consider that offenders can change their behavior patterns
when desirous, capable, and given the opportunity, help, dignity,
and respect they deserve as human beings.'" Id. (emphasis
added). In December 1996, the Pennsylvania Legislature added new
language to the "aspirational introductory provision" of the
parole statute, requiring that the "public safety must be
considered first and foremost in the [PBPP's] execution of its
mission." Id. at 377 (internal quotation omitted).
Plaintiff correctly notes that the United States Court of
Appeals for the Third Circuit has held that the PBPP's initial
interpretation of the 1996 amendments to the Pennsylvania parole
statute, found at 61 P.S. § 331.1, violated the Ex Post Facto
Clause. Id. at 393. In Mickens-Thomas, the Third Circuit
Court of Appeals addressed a habeas corpus petition filed by a
prisoner whose life sentence had been commuted to a term of years
with parole eligibility. The petitioner claimed that application
of revised parole standards violated the Ex Post Facto Clause,
and he was entitled to review under the standards in place at the
time of conviction. The Court concluded that the revised Parole
Board policy, "although partly discretionary, is still subject to ex post facto
analysis when there are sufficiently discernable criteria to
suggest to a reviewing body that the new retroactive policies are
being applied against the offender's interest." Id. at 386. "An
adverse change in one's prospects for release disadvantages a
prisoner just as surely as an upward change in the minimum
duration of sentence." Id. at 392. The Third Circuit Court of
Appeals held that retroactive application of "changes in the
parole laws made after conviction" that adversely impacted the
likelihood of parole violated the Ex Post Facto Clause. The
Court concluded that the PBPP "mistakenly construed the 1996
statutory change to signify a substantive change in its parole
function." Id. at 391.
Notwithstanding this conclusion, the Court also acknowledged a
recent decision of the Pennsylvania Supreme Court, Winklespecht
v. Pa. Bd. of Prob. & Parole, 813 A.2d 688 (Pa. 2002), which
clarified that the amended § 331.1 did not constitute binding
language requiring the PBPP to place the greatest weight on
consideration of the public safety. Id. However, the
Pennsylvania Supreme Court concluded that the Winklespecht
decision, "made after the Board's actions on Thomas' parole,
came too late to alter the Board's view of the statutory
amendment on the outcome of the case." Id. (emphasis in
In Mickens-Thomas, as well as other non-precedential cases
subsequently addressed by the Third Circuit Court of Appeals, the
Court recognized that an ex post facto violation had occurred
in parole review, and the petitioners had established an undue
reliance on the public safety by the PBPP in its parole
decisions. Mickens-Thomas, 321 F.3d at 393; see also McLaurin
v. Larkins, 2003 WL 22147497 (3d Cir. Sept. 18, 2003);
Hallawell v. Gillis, 2003 WL 1919371, *8 (3d Cir. Apr. 23,
2003). However, except for individuals whose parole decisions were made after the adoption
of the 1996 changes, and before Winklespecht clarified the fact
that the amendment did not change the administration of parole
policies, subsequent parole reviews are made with the
understanding that the 1996 amendments did not change the
analysis used in the parole proceedings.
Attached to Martinez' counter statement of material facts (Doc.
47) is the declaration of PBPP member Allen Caster (Doc. 47, Ex.
A), submitted under penalty of perjury. Caster states that he has
been a member of the PBPP since 1992, and the "criteria used by
the [PBPP] in exercising its discretion to parole offenders has
not changed at any time since . . . 1987." (Doc. 47, Ex. A at ¶
22.) Moreover, statistics compiled by the PBPP verify that the
likelihood of parole has generally increased since 1990. (See
Id. at ¶ 12.) Further, a review of Plaintiff's parole denial on
April 30, 2003 reveals that the PBPP reviewed Plaintiff for
parole under the appropriate standards, notwithstanding the
negative outcome. The April 30, 2003 decision was rendered well
after the PBPP had the benefit of the Winklespecht decision,
and specified the following reasons for denial of parole:
1) Reports, evaluations and assessments concerning
[Plaintiff's] physical, mental and behavior and
2) [Plaintiff's] interview with the hearing examiner
and/or Board member.
(Doc. 1, Ex. U). In the decision, the PBPP not only stated that
it took the required factors into account, but also noted the
specific reasons why Plaintiff had been denied parole. These
reasons comport with the pre-1996 requirements of the Act. Thus,
the Court concludes that the PBPP, guided by Winklespecht,
returned to the pre-1996 standards for review of Plaintiff's April 30, 2003 parole application.
Accordingly, the standards utilized in Plaintiff's parole review
are not violative of the Ex Post Facto Clause, and Martinez'
motion for summary judgment will be granted.
D. Dismissal of John Doe Defendants under 42 U.S.C. § 1915
By an Order dated November 6, 2003, Plaintiff was granted leave
to proceed in forma pauperis. The Prison Litigation Reform Act
(the "Act"), Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996)
established new obligations for prisoners who file civil rights
actions in federal court, and wish to proceed in forma
pauperis. Section 1915(e)(2) of the Act states, in pertinent
part, "the court shall dismiss the case at any time if the court
determines that (B) the action . . . (ii) fails to state a claim
on which relief may be granted. . . ."
42 U.S.C. § 1915(e)(2)(B)(ii). Further, a complaint that does not establish
entitlement to relief under any reasonable interpretation is
properly dismissed without leave to amend. Grayson v. Mayview
State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
In order to prevail on a § 1983 claim, the Plaintiff must
establish that: (1) the alleged wrongful conduct was committed by
a person acting under color of state law, and (2) the conduct
deprived the plaintiff of a right, privilege, or immunity secured
by the Constitution or laws of the United States. Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000); Schiazza v. Zoning
Hearing Bd., 168 F. Supp.2d 361, 372 (M.D. Pa. 2001). Since the
Court concludes that the two parole decisions at issue did not
violate the Ex Post Facto Clause of the United States
Constitution, Plaintiff is unable to satisfy the second
requirement of a statutory or Constitutional violation to sustain
his § 1983 action, and amendment of the complaint by naming the John Doe Defendants would do nothing to cure the
deficiency. Accordingly, the case will be dismissed as it relates
to the John Doe Defendants under the provisions of
42 U.S.C. § 1915(e)(2)(B)(ii). An appropriate Order follows. ORDER
AND NOW, THIS 28th DAY OF JUNE, 2005, in accordance with the
foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for partial summary judgment (Doc. 37) is
2. Defendant's motion to amend/correct answer to complaint
(Doc. 43) is DENIED as moot.
3. Defendant's cross motion for summary judgment (Doc. 45) is
GRANTED, and the Clerk of Court is directed to enter judgment
in favor of Defendant, Benjamin Martinez, and against Plaintiff.
4. Plaintiff's motion to amend his complaint (Doc. 50) is
5. Plaintiff's motion to amend (Doc. 54) his prior motion to
amend is DENIED.
6. The complaint is DISMISSED as to the remaining defendants
under the provisions of 42 U.S.C. § 1915(e)(2)(B)(ii), and the
Clerk of Court is directed to enter judgment in favor of the John
Doe Defendants and against the Plaintiff.
7. The Clerk of Court is directed to close this case. 8. Any appeal from this Order shall be deemed frivolous,
without good cause, and not taken in good faith.