The opinion of the court was delivered by: Terrence F. McVerry, United States District Court Judge
MEMORANDUM OPINION AND ORDER
Presently before the court is the MOTION TO DISMISS, with brief in support, filed by Defendant Jeffrey Ayres, and the RESPONSE in opposition, filed by Plaintiff, Conrad E. Miller, pro se. For the reasons that follow, the Motion will be granted.
On January 16, 2009, Plaintiff, Conrad E. Miller, pro se, commenced this action by the filing of a motion for leave to proceed in forma pauperis. The pro se complaint appears to raise various constitutional claims under 42 U.S.C. § 1983 against Jeffrey Ayres, a probation officer with the Pennsylvania Board of Probation and Parole.
According to the Complaint, Plaintiff is on probation for offenses other than a sex offense. He claims that Defendant Ayres is violating his constitutional rights by issuing probation conditions and stipulations that apply to sex offenders, which are inconsistent with the probation conditions issued by the Court of Common Pleas of Butler County.
Plaintiff's sentence of probation relates to the following three criminal convictions in the Court of Common Pleas of Butler County:
* CP-10-CR-0002517-202 - retail theft; 6 to 12 months incarceration and 48 months state probation;
* CP-10-CR-0000058-2003 - DUI and possession of drug paraphernalia - 6 to 12 months incarceration; and 12 months state probation; and
* CP-10-CR-00010000-2003 - DUI - 6 to 12 months incarceration and 12 months state probation.
On January 14, 2009, two days before he filed this federal lawsuit, Plaintiff filed in the Butler County Court of Common Pleas a Motion for Clarification of Conditions regarding State Probation. This Motion was docketed in all three of the criminal cases listed above. In the Motion, Plaintiff claimed that Ayres has issued him probation conditions relating to sex offenders, even though he is not on probation for a sex offense. Further, he claims that Defendant Ayres was threatening Plaintiff with violation of his probation if he did not comply. Additionally, Plaintiff argued, as he does in the instant litigation, that Defendant Ayres is preventing him from communicating with his grandchildren and is violating his rights under the Eighth and Fourteenth Amendments.
On February 6, 2009, Judge Thomas J. Doerr of the Butler County Court of Common Pleas denied Plaintiff's Motion without a hearing. The Court also scheduled a Gagnon I hearing*fn1 for February 23, 2009, pursuant to the allegation of the Pennsylvania Board of Probation and Parole (the "Board") that Plaintiff had violated his probation. As reflected in the Board's Gagnon I Hearing Request, Plaintiff was issued a written instruction on October 6, 2008 to obtain a sex offender evaluation from a certified treatment provider and to complete all treatment recommendations from the evaluation. He was also required to provide written authorization for release of confidential information from the treatment providers. When Defendant Ayres contacted the treatment provider on January 28, 2009, and asked about Plaintiff's status, the treatment provider refused to disclose any information because Plaintiff had rescinded his authorization for release of confidential information to the Board.
On February 23, 2009, Plaintiff appeared at the Gagnon I Hearing and admitted the violation. In order to further clarify the matter, on February 27, 2009, Defendant Ayres submitted a Special Field Report to Judge Doerr which explained the basis for the Board's decision to supervise Plaintiff in accordance with its Sex Offender Protocol. Defendant attached the written instructions for sex offenders that he had presented to Plaintiff on October 6, 2008, and asked that Judge Doerr acknowledge that these instructions were to be considered as special conditions of Miller's probation. The Court responded to the Report and concurred with the recommendation / request of Ayres.
Defendant Ayres has filed the instant motion under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendant requests the Court to abstain from exercising jurisdiction over Plaintiff's claims under ...