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Ort v. Rendell

March 26, 2009

JAMES ORT, PLAINTIFF
v.
EDWARD RENDELL, GOVERNOR, AND CATHERINE C. MCVEY, CHAIRPERSON DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Pro se state prisoner James Ort claims that his denial of parole violated his Fourteenth Amendment due process rights and speculates that Governor Rendell's parole moratorium will preclude him from being considered for parole in 2009. BecauseOrt has alleged no due process violation and the parole moratorium is irrelevant, I will dismiss his complaint without prejudice.

I. BACKGROUND

Ort is an inmate at SCI Waymart, serving a sentence for three crimes he committed in March 2006: simple assault, recklessly endangering another person and making terroristic threats. Complaint ¶ 6.Ort was eligible for parole in 2008, but was denied and told he would be re-considered in or after February 2009. Id.; Plaintiff's Ex. 1.

Governor Rendell suspended the Parole Board's authority to parole on September 29, 2008. A few weeks later,*fn1 the moratorium was lifted for non-violent offenders. Complaint ¶ 14. Ort speculates that he will be deemed a violent offender and not considered for parole this year.

Yet, according to Ort's own complaint, the Parole Board does not consider him a violent offender. Plaintiff's complaint, Ex. 3 (Parole Moratorium Update stating "Attached is a complete list of violent offenses; anything not on this list is considered non-violent;" none of Ort's crimes is listed).

II. DISCUSSION

Defendants filed a motion to dismiss Ort's complaint because it fails to state a claim.*fn2 As will be explained below, the motion is granted because Ort has alleged no due process violation and the parole moratorium is irrelevant to his parole status.*fn3

A. The Parole Board's Denial of Parole Did Not Amount to a Due Process Violation

Ort does not have a right - constitutional or inherent - to be paroled. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976) which states "given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty" therefore there is no liberty interest in being conditionally released before a valid sentence expires). Pennsylvania has not created a liberty interest in parole. Zuniga v. Pennsylvania Bd. of Probation and Parole, 2008 WL 4115143, 2 (M.D. Pa. 2008) (stating that "Pennsylvania law does not create a liberty interest in parole"). In the absence of any protected liberty interest in parole, therefore, the due process protection does not apply. See, e.g., Wright v. Cuyler, 517 F.Supp. 637, 640 (E.D. Pa. 1981)(citing Greenholtz, 442 U.S. at 11). To the extent Ort asserts a substantive due process claim, that claim also is must be presumed correct under Hunterson, 308 F.3d at 250. Therefore, Ort has stated no claim against Chairperson McVey.

B. The Parole Moratorium is Irrelevant to Ort's Parole

Ort may have a liberty interest, under Pennsylvania law, in the consideration of parole. Zuniga, 2008 WL 4115143 at 2. But his claim against Governor Rendell is based only on baseless speculation that he will be denied because he will be deemed a violent offender under the moratorium rubric. Ort's own complaint, however, shows that the Parole Board does not consider him a violent offender. Complaint, Plaintiff's Ex. 3. None of the crimes for which Ort was convicted is on the Parole Board's list of violent offenses. Therefore Ort has not stated a claim against Governor Rendell.

C. There is No Basis for a Declaratory Judgment Because Ort is Not a "Prospective Defendant"

The Declaratory Judgment Act provides early adjudication to one uncertain of his rights before his adversary files suit and before damage is incurred. In other words, declaratory judgments allow prospective defendants to establish their non-liability. Travelers Ins. Co. v. Davis, 490 F.2d 536, 543 (3d Cir. 1974) (quoting E. Edelmann & Co. v. Tripe-A Specialty Co., 88 F.2d 852, 854 (7th Cir. 1937) and stating that the "objectives of the Federal Declaratory Judgment Act are: . . . to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damage had accrued"). Ort is not a prospective defendant. He is a plaintiff who asks this court to declare that his rights were violated. Complaint ΒΆ 1. Declaratory judgment ...


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