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Keller v. Pennsylvania Board of Probation and Parole

March 29, 2006


The opinion of the court was delivered by: Judge Conaboy


Background Wayne Keller, an inmate presently confined at the State Correctional Institution, Dallas, Pennsylvania (SCI-Dallas), filed this pro se civil rights action. By Memorandum and Order dated September 8, 2004, this Court partially granted the Defendants' motion for summary judgment.

Specifically, the Pennsylvania Board of Probation and Parole (Parole Board) was granted summary judgment on the basis that is was not a properly named Defendant, Plaintiff's pre-October 22, 2000 claims were dismissed as being time barred and his claims for monetary compensation against the Defendants in their official capacities were determined to be barred by the Eleventh Amendment. Summary judgment was also granted in favor of Chief Hearing Examiner Robert Bitner, SCI-Dallas Superintendent Thomas Lavan and Hearing Examiner Donald Jones.*fn1

The Remaining Defendants are Secretary Kathleen Zwierzyna and Sean Ryan of the Parole Board and SCI-Dallas Correctional Officer William Higgins. Keller alleges that he was improperly denied release by the Parole Board in 1997, 2001, and 2002 in violation of his due process and equal protection rights. Specifically, Plaintiff asserts that he has been subjected to a retaliatory denial of parole since 1997 due to his refusal to pay a thirty dollar ($30.00) offender's fee and because of his threats to initiate litigation against the Parole Board. See Doc. 1, ¶¶ 10 & 18.

Keller's second claim argues he was subjected to additional retaliation when Correctional Officer Higgins issued him a falsified misconduct charge on September 6, 2001. The misconduct charged Plaintiff with threatening an employee or their family with bodily harm, using abusive language to an employee and failure to obey an order. Plaintiff indicates that the disciplinary charge was retaliatory in that its purpose was to support the ongoing denial of his parole. His complaint seeks nominal and punitive damages, as well as declaratory and injunctive relief.

By way of background, Keller was convicted of Third Degree Murder in the Philadelphia Court of Common Pleas. As a result, he was sentenced to an eight (8) to twenty (20) year term of imprisonment. Plaintiff was granted parole on April 20, 1991. During February, 1992, he failed to report to his supervising parole officer. The following month, Keller was arrested on charges of Robbery, Receiving Stolen Property, Theft, Simple Assault, and Recklessly Endangering Another Person by police in Philadelphia. He was released after posting bail. Following his release, Keller's whereabouts were unknown until April 24, 1992, when he was arrested in Allentown, Pennsylvania on charges of Attempted Homicide, Violation of the Uniform Firearms Act, Aggravated Assault, Theft by Receiving Stolen Property, Terroristic Threats, Recklessly Endangering Another Person, and Simple Assault.

Following an August 1992 revocation hearing, Plaintiff was determined to be a technical parole violator and ordered to serve nine (9) months back time. In January, 1993, he was convicted of Robbery, Resisting Arrest and being a former convict in possession of a firearm. On May 11, 1993, Keller had a second revocation hearing where he was recommitted as a convicted parole violator and ordered to serve thirty-six (36) months back time.

Plaintiff was denied reparole on January 23, 1996 for a variety of reasons, including his need for counseling and treatment; poor prison adjustment; unfavorable recommendation from the Pennsylvania Department of Corrections (DOC); and factors associated with his new criminal conduct. He was denied reparole for a second time on February 19, 1997 based on many of the same factors enumerated by the Parole Board following his 1996 parole proceedings.

On November 26, 1997, Plaintiff was granted reparole to his detainer sentence provided that he: remain misconduct free; pay $30.00 of court costs in accordance with 71 P.S. § 180-7.17 (Act 27); complete required institutional programming; and submit a DNA sample. Keller refused to pay the Act 27 fee based on his belief that its application in his case violated the Ex Post Facto Clause. He also refused to sign an acknowledgment of the conditions for his reparole. As a result, Plaintiff was not granted reparole.

Keller was again considered for reparole on August 21, 2001, at which time he requested that correctional officials provide him with proof of his obligation to pay the Act 27 fee. After confirmation of the Plaintiff's obligation to pay the Act 27 fee was given, Keller was scheduled to be reconsidered for reparole on September 27, 2001. However, on that date Keller was in the prison's Restricted Housing Unit (RHU), having been found guilty of an institutional misconduct charge.*fn2 His request for reparole was denied.

The Parole Board received a letter from Keller on October 17, 2001, wherein he threatened to file a lawsuit because he had not been granted release. A written response from a Parole Board official informed Plaintiff that the denial of reparole decision was non-appealable and no further action would be taken.

During a September, 2002 reparole interview, the Plaintiff refused to cooperate apparently on the grounds that his interviewers were biased. The resulting September 30, 2002 written decision issued by the Parole Board denied Keller reparole and ordered him to serve his unexpired maximum sentence. On April 30, 2003, the September 30, 2002 decision was modified and Plaintiff was provided with specific reasons for the denial of reparole.

Presently pending is the Remaining Defendants' motion for summary judgment. See Doc. 91. The motion has been briefed and is ripe for consideration.


I. Standard of Review

The three (3) Remaining Defendants argue that they are entitled to entry of summary judgment on the grounds that: (1) Secretary Zwierzyna did not have personal involvement in the purported constitutional misconduct; (2) a viable retaliation claim has not been raised against Correctional Officer Higgins; and (3) Defendant Ryan is entitled to quasi-judicial immunity.

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with 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." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with ...

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