The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Defendants' Motion to Dismiss the Amended Complaint (Doc. 7) and Plaintiffs' Motion for Leave to File a Second Amended Complaint (Doc. 33). The Court will grant Defendants' Motion to Dismiss because Plaintiffs lack standing to bring their claims and deny Plaintiffs' Motion for Leave to File a Second Amended Complaint because the proposed amendments would be futile.
Prior to 1997, Article IV, Section 9 of the Pennsylvania Constitution granted the governor the power to commute sentences and grant pardons after a majority vote was received by the Board of Pardons ("the Board") recommending that the governor take such action. (Doc. 5, Am. Compl. ¶ 16.) On November 4, 1997, a ballot initiative was passed that amended the Pennsylvania Constitution to require a unanimous vote by the Board of Pardons before a recommendation to pardon or commute the sentence of an inmate who had been sentenced to death or life imprisonment would be given to the governor. (Id. ¶ 17). Also, a "merit review" process was established that required the Board of Pardons to reach a majority vote before an application for a pardon or commutation would be granted a public presentation and hearing. (Id. ¶¶ 24-25.) Plaintiffs allege that there have been no hearings granted by the Board of Pardons for a life sentence prisoner since December 2004. (Id. ¶ 26).
Plaintiff Douglas Hollis ("Hollis") received a life sentence in 1976. (Id. ¶ 30.) Hollis has submitted applications for clemency in 1987, 1988, 1991, 1992, 1994, and 2005; he withdrew his 2005 application and also has an application filed October 5, 2007 that is currently pending. (Id. ¶¶ 32, 35-36.) In 1992, Hollis received a 4-1 vote from the Board in favor of clemency, but then-Governor Bob Casey denied the application. (Id. ¶ 37.)
Plaintiff James Taylor ("Taylor") received a life sentence in 1978. (Id. ¶ 57.) Taylor filed applications for commutation in 1981, 1987, 1993, 1994, 2000, and 2004. (Id. ¶ 63.) He was denied recommendation by the Board by a vote of 0-5 in 1981. (Id. ¶ 64.)
Plaintiff Simon Evans ("Evans") received a life sentence in 1972. (Id. ¶ 99.) Evans filed an application for commutation in 1991, 1995, and 2003; he also filed an application on March 24, 2008 that is currently pending before the Board. (Id. ¶¶ 101-102.) Evans does not allege the outcomes of any of these applications, but does allege that no action has been taken on the pending application. (Id. ¶ 103.)
Plaintiff Mitchell DiVentura ("DiVentura") received a death sentence in 1979; his conviction was overturned but he was retried and found guilty again in 1982. (Id. ¶ 138.) In 1988, the Board voted 3-0 in favor of commuting DiVentura's sentence, but the application was denied by Governor Casey. (Id. ¶ 142.) In 1989, the Board voted in favor of commuting DiVentura's sentence by a 3-1 count, but he was denied again by Governor Casey. (Id. ¶ 143.) DiVentura's subsequent applications in 2001 and 2003 were both denied; he does not allege how the Board voted in those proceedings. (Id. ¶ 144.)
Plaintiff Diane Metzger received a life sentence in 1974. (Id. ¶ 180.) She filed applications for commutation in 1984, 1986, 1987, 1988, 1994, and 2003. (Id. ¶ 182.) In both 1987 and 1988, Metzger received a 4-0 vote from the Board in favor of commutation, but had her application denied by Governor Casey. (Id. ¶¶ 183-184.) In 2005, Metzger filed another application but was denied a hearing by 0-4 vote. (Id. ¶ 185.)
Plaintiffs filed their Amended Complaint on September 10, 2008. (Doc. 5.) Each Plaintiff brings claims for violations of 42 U.S.C. § 1983 for infringement of Substantive and Procedural Due Process under the Fifth (5th) and Fourteenth (14th) Amendments of the United States Constitution (Count I) and Equal Protection under the Fourteenth (14th) Amendment to the United States Constitution (Count II). All Plaintiffs, other than Hollis, also bring claims for violations of the Ex Post Facto clause of the United States Constitution (Count III).
Defendants filed a Motion to Dismiss the Amended Complaint on October 7, 2008. (Doc. 7.) On June 26, 2009, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint. (Doc. 33.) Plaintiffs' proposed Second Amended Complaint adds class action allegations on behalf of a class consisting of all inmates who are serving life sentences without parole for crimes committed before July 31, 1995. (Doc. 33, Attach. 1, ¶ 91.) This proposed pleading also alleges that "Plaintiffs' claims are typical of the claims of members of the Class." (Id. ¶ 93.) Both motions have been fully brief and a ripe for disposition at this time.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual ...