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Menifee v. McVEy

February 17, 2009


The opinion of the court was delivered by: Magistrate Judge Bissoon

Judge Fischer


On February 10, 2009, the preliminary injunction hearing scheduled in this case was cancelled because the Court "ha[d] identified substantial issues of law that . . . should be resolved" in advance of the hearing. See Order (Doc. 20) at 1-2. The same day, consistent with the District Court‟s instruction (see Doc. 7), Defendant the Pennsylvania Board of Probation and Parole (at times, "the Board" or "the State Board") filed a Motion to Dismiss. See Def.‟s Mot. to Dismiss (Doc. 21).

Defendant‟s Motion addresses some of the same issues that gave the Court pause in proceeding immediately with the preliminary injunction hearing. Most salient is Defendant‟s assertion that Plaintiffs have sued the wrong party or, alternatively, that they have failed to join necessary and/or indispensable parties. Compare Def.‟s Br. in Opp‟n to TRO (Doc. 9) at 3 ("Plaintiff[s] seek to enjoin the Board and require it to take action that is [exclusively] within the [power] of the sentencing court") with Def.‟s Br. in Supp. of Mot. to Dismiss (Doc. 22, hereinafter "Def.‟s Br.") at 20 (arguing that, "[s]hould the Court [reject the Board‟s arguments regarding] abstention . . ., it will be necessary to address whether plaintiffs have named the proper defendants").

While Defendant‟s Motion also presents arguments regarding venue, Younger and Pullman abstention, and the failure to exhaust administrative remedies, Plaintiffs‟ pleadings and moving papers most readily beg the question of whether their claims properly may be remedied through suit against this Defendant, or at least this Defendant alone. Although the inquiry may be viewed through different lenses, the challenges in question often arise within the context of "redressability," as required for the purposes of Article III standing. See generally Anthony v. Council, 316 F.3d 412, 416 (3d Cir. 2003) (citation omitted).

Much like subject matter jurisdiction, Article III standing is a threshold inquiry that federal courts are "under an independent obligation to examine." Id. (citation and internal quotations omitted). It follows that the Court may move this issue to the fore. See id. (addressing standing "[b]efore turning to the merits of abstention"); see also generally Wilbur v. Locke, 423 F.3d 1101, 1106 (9th Cir. 2005) ("[i]It is hardly novel for a federal court to choose among threshold grounds," including Article III standing, "for denying audience to a case on the merits").

Whether framed in terms of standing or otherwise, the Court believes that this case cannot appropriately proceed until the above issues are resolved.


Plaintiffs are three individuals who were charged with crimes in the Court of Common Pleas of Allegheny County. See generally Compl. (Doc. 1) at ¶¶ 19, 31, 38. Although sentenced by the Court of Common Pleas, Plaintiffs were placed on "special probation," subject to the supervision of the State Board. See id. at ¶¶ 10-12. Special probation is targeted at "more serious offender[s]" than those typically monitored by local supervisory agencies, and it is effectuated when "any judge of a court having criminal jurisdiction" in Pennsylvania "by special order direct[s] supervision by the [State B]oard." See Com. v. Mitchell, 955 A.2d 433, 439 (Pa. Super. 2008) (citations and internal quotations omitted); see also 61 Pa. Cons. Stat. § 331.17a (statutory authority for special probation).

The Board‟s function regarding special probationers is supervisory, and it "does not have the power to grant[ or] establish the terms of or [to] revoke probation." Compl. at ¶ 9; Mitchell, 955 A.2d at 441 ("Section 331.17a [does] not give the Board jurisdiction or power to determine if [a probationer] ha[s] violated his probation, to revoke his special probation, or to re-sentence [him] following revocation of his special probation") (citations omitted). Rather, "the trial court retain[s] the power, authority, [and] jurisdiction to determine whether [a probationer] violated his special probation, to revoke it, and to re-sentence." Mitchell, at 441 (emphasis added).

Plaintiffs claim that, despite Defendant‟s inability to determine by force of law that any probationer has violated his conditions of special probation, Defendant acted unconstitutionally by arresting and detaining Plaintiffs without ensuring that they received prompt "notice and a preliminary hearing [incident to their] arrest and detention" for potential probation violations. See Pls.‟ Mot. for TRO (Doc. 2) at ¶ 3. Although Plaintiffs admit that Defendant is without authority to conduct an initial probable cause (or Gagnon I) hearing,*fn1 they nevertheless seek injunctive relief compelling Defendant to promptly secure notice and a Gagnon I hearing before the sentencing judge. See, e.g., Pls.‟ proposed order of court on TRO (filed under Doc. 2-2) at 2; see also id. ("Defendant shall provide . . . notice within two (2) days of this order and shall schedule the [Gagnon I] hearing by the sentencing court promptly thereafter") (emphasis added).

As referenced above, Plaintiffs seem well aware that Defendant lacks the power to compel the relief requested, i.e., timely notice and provision of a Gagnon I hearing.*fn2 See Pls.‟ Br. in Supp. of TRO (Doc. 11) at 6 (arguing that Pennsylvania‟s statutes, Rules of Criminal Procedure, and Administrative Code have no procedures compelling timely Gagnon I hearings).*fn3

The Pennsylvania Administrative Code, as referenced in Plaintiffs‟ brief, delineates the scope of the Board‟s actual authority:

The Board may, during the [special] probation . . . period, in case of violation of the conditions of probation . . ., detain the special probationer or parolee in a county prison and make a recommendation to the court, which may result in the revocation of probation . . . and ...

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