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Warner v. McVey

July 9, 2010

RICHARD LAWRENCE WARNER, PLAINTIFF,
v.
CATHERINE B. MCVEY, STATE OF PA BOARD OF PROBATION AND PAROLE, PATRICIA LIGHTNER, AND JAMES WILLIAMS, DEFENDANTS.



The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge

District Judge Sean J. McLaughlin

Magistrate Judge Susan Paradise Baxter

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendants' motion for summary judgment [Document # 47] be granted and that Plaintiff's motion for summary judgment [Document # 51] be denied.

Also pending is Plaintiff's motion for judgment on the original pleadings [Document # 55]. Since the original pleadings have been superceded by an Amended Complaint and Answer thereto, it is recommended that that motion be dismissed as moot.

The Clerk of Courts should be directed to close this case.

II. REPORT

A. Relevant Procedural History

On February 20, 2008, Plaintiff Richard Lawrence Warner ("Warner" or "Plaintiff"), through counsel, filed this civil rights action pursuant to 42 U.S.C. § 1983. The original complaint, Document # 1, alleged that Warner's rights were being violated because the Pennsylvania Board of Probation and Parole ("the Board") had directed as a condition of probation that he attend a sex offender evaluation, and that when he refused he was required to attend sex offender treatment. He named as defendants the Board; the Board Chair, Catherine McVey; the Director of the Board's Erie Office, Patricia Lightner; and, the Director of the Board's Western Regional Office, James Williams (collectively, the "State Defendants"). Warner also named as defendants Audrey Smith, Ann Ludwig, and Chris Laythe. At the relevant time they were employees of the Community Area Response Team (collectively, the "CART Defendants").

The State Defendants waived service of the Complaint and, thereafter, filed an Answer to the Complaint, Document # 18. On June 12, 2009, Warner filed a motion for leave to file an amended complaint, Document # 37. Therein, he moved to amend the complaint to include Defendants McVey, Lightner, and Williams as acting in their individual capacities; to voluntarily dismiss the CART Defendants; and, to update the Court on the events that had occurred since the filing of the original complaint. The State Defendants did not oppose Warner's motion. See Document # 40. Warner's motion was granted by text order entered on June 29, 2009, and the Amended Complaint was docketed on September 16, 2009. Document # 43.

Next, the parties filed their cross-motions for summary judgment. [Document # 47, # 51]. Warner then filed a motion for judgment on the pleadings [Document # 55], in which he argued that the State Defendants' Answer to the original complaint was insufficient as a matter of law. On December 15, 2009, the State Defendants filed their Answer to the Amended Complaint, Document # 59, thereby rendering Warner's motion for judgment on the original pleadings [Document # 55] moot. Therefore, it is recommended that that motion be dismissed.

Warner initially sought injunctive and declaratory relief as well as monetary damages. Given that he is no longer under Board supervision and hence not subject to any conditions of probation, his requests for injunctive and declaratory relief are moot. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 248-49 (3d Cir. 2003); Degrange v. West, 196 F.App'x 91, 92 (3d Cir. 2006); Wirshing v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (citing Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997)).

The parties have completed discovery and the summary judgment issues are fully briefed and the motions are ripe for disposition by this Court.

B. Relevant Factual History

1. Warner's Criminal Proceedings In Iowa

The following relevant facts of this case are not in dispute. Warner is a resident of Pennsylvania and he lives in Crawford County. As part of his job, he traveled among Amish communities in several states and sold water treatment systems, vitamins, and nutritional supplements. Ex.*fn1 56, Warner Dep. at 32-41. In the early Spring of 2005, he traveled to Kentucky, Illinois and Iowa for this purpose. Id. at 41-57. He was subsequently criminally charged in Iowa because of an incident occurring on this trip. Id. at 13. Specifically, on August 26, 2005, the State of Iowa charged him with "Sexual Abuse in the Third Degree, a Class C felony." A second count was added to the criminal information on September 16, 2005, charging him with "Practicing Medicine Without A License, a Class D felony." See, e.g., Ex. 1, Presentence Investigation Report.

The charges against Warner were based on statements made by an 18-year-old woman who is a member of an Amish community in Iowa. She reported that on or around April 1, 2005, Warner, under the guise of performing a medical examination, digitally penetrated her vagina and fondled her breasts. The investigation further indicated that another victim, a 21-year-old Amish woman from Missouri, reported a similar incident with Warner in February of 2004. See id.

On December 1, 2006, before the Iowa District Court for Davis County (the "trial court"), Warner pled guilty to Count II, Practicing Medicine Without A License, pursuant to a plea agreement. In exchange for his plea, the State of Iowa agreed that, among other things, it would dismiss Count I and recommend that Warner receive a five-year suspended sentence with no jail time and probation, which would be transferred subsequently to Warner's home state of Pennsylvania. The trial court accepted the plea, set sentencing for hearing, and ordered the Eighth Judicial District Department of Correctional Services to complete a presentence investigation. State v. Warner, 706 N.W.2d 209 (Table), 2008 WL 5009279 at *1 (Iowa App. 2008) (setting forth procedural history of Warner's criminal case).

Warner then filed a motion for judicial review of preparation of presentence investigation. He asserted that, in preparing the presentence investigation, the Department of Correctional Services was improperly including a sexual history report when he had not pled guilty to a sexual crime. Consequently, he requested that the trial court direct that the Department of Correctional Services not prepare a sexual history report as part of its presentence investigation. Id.

On December 15, 2007, a hearing on Warner's motion for judicial review was held before the trial court. At the hearing, the State of Iowa and Warner stipulated that Counts I and II "were out of the same incident that occurred at the same time in the same place." Id. Additionally, Sue Boggs, a probation/parole officer for the Department of Correctional Services, testified regarding the sexual history report she was asked to complete in Warner's presentence investigation. She acknowledged that Warner had pled guilty to a charge that was not associated with any sexual act or sex-related crime, but stated that pursuant to Iowa Code section 901.3 subsections (3), (5), and (7), the investigator was required to inquire into, inter alia, the circumstances of the offense and harm to the victim. Consequently, Boggs testified that based upon the minutes of testimony in this case, she was asked to complete a sexual history report. She further noted that the sexual abuse charge was still pending in the case, but that it was scheduled to be dismissed at sentencing. Id.

Following the hearing, the trial court denied Warner's motion, holding: Here, there is sufficient nexus between Warner's admitted conduct in Practicing Medicine without a License and the surrounding circumstances of that offense -- alleged to have been sexual in nature -- to warrant inquiry into his sexual history. The presentence investigation, including a sexual history investigation, should continue.

Id. at *2 (quoting the trial court). See also Ex. 10 to Amended Complaint, Document # 43.

On March 9, 2007, the sentencing hearing was held. The trial court imposed a suspended sentence of incarceration not to exceed five years, a fine of $750, and three years' probation, and the State dismissed the sexual abuse charge. Additionally, the trial court imposed special conditions of probation, one of which ordered that Warner "shall comply with any evaluation and participate in all treatments and programs recommended by his supervising officer." Id. (emphasis added); see also Ex. 2, Judgment Entry. After announcing Warner's sentence and the conditions of probation, the following exchange took place:

[WARNER'S COUNSEL]: I did have a question, Your Honor. You mention that Mr. Warner complete all evaluations that the Department of Corrections recommends. I guess I'm not clear as to does this include [participation in the Sex Offender Treatment Program]? I guess what's your order about that?

- - - [COUNTY ATTORNEY]: Your Honor, I talked to [Sue Boggs], and it's my understanding that [Warner] -- if this works the ways it's planned, [Warner's] probation will be transferred to the State of Pennsylvania. So the Eighth Judicial District is not asking for or planning on doing any kind of an evaluation with [Warner] for this purpose of the [Sex Offender Treatment Program].

What I think needs to be understood is, if [Warner] does get transferred to Pennsylvania ..., he's going to have to do whatever their requirements are. And if that's the requirement to do the [Sex Offender Treatment Program], or I'm sorry, to do any kind of an evaluation to determine if [the Sex Offender Treatment Program] is necessary, then ... [Warner's] going to have to do that or [Pennsylvania's] not going to supervise him and he's going to be shipped back to the Eighth. And we don't want to do that. So in Iowa, we're not asking for that to happen, but Pennsylvania could very well. And if they do, he's going to have to do what they're asking for or else he's going to have to come back to Iowa for his probation.... [WARNER'S COUNSEL]: Your Honor, we have no problem with an evaluation to be done as long as the Court isn't sentencing him to [the Sex Offender Treatment Program].

THE COURT: I don't think there is a problem. [WARNER'S COUNSEL]: Okay.

Id. (quoting from sentencing hearing) (emphasis added, bracketed text in Iowa Court of Appeal's decision).

The trial court then issued its Judgment Entry Order and stated: The court notes the further suggested special probation conditions listed on page 24 of 25 of the Presentence Investigation Report filed January 31, 2007, that includes a requirement that 1) defendant Warner have no further dealings with any member of the Amish community without permission; and 2) that he complete all requirements for an evaluation to determine his appropriateness for placement in a Sex Offender Treatment Program.

At this time, the court declines to impose the foregoing two special conditions of probation for the reasons set forth in the record made at sentencing. Ex. 2, Judgment Entry, ¶ 3.

On March 9, 2007, Warner signed and executed a document entitled Eighth Judicial District Department of Corrections Services Probation Agreement. Ex. 3. He agreed, inter alia, to "participate and cooperate fully with any treatment plan and in any professional counseling program as directed." Id., ¶ 6.

2. Warner Requests That His Parole Supervision Be Transferred To the Board So That He Can Live In Pennsylvania

Immediately after he was sentenced, Warner sought to have his probation supervision transferred from Iowa to Pennsylvania pursuant to the Interstate Compact for the Supervision of Adult Offenders Act (the "Interstate Compact"). The Interstate Compact provides offenders the opportunity to transfer their probation or parole supervision to the community where they have family, confirmed employment, specialized treatment programs, and/or educational or vocational opportunities. See Iowa Code § 907B.2; 61 PA.CONS.STAT. § 7111 et seq.*fn2

As participants of the Interstate Compact, both Iowa and Pennsylvania have agreed that "[a]ll lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states." Iowa Code § 907B.2, Article XIII(2)(a); 61 PA.CONS.STAT. § 7112, Article XIV(B)). Importantly, Rule 4.101 of the Interstate Compact provides: "A receiving state shall supervise an offender transferred under the interstate compact in a manner determined by the receiving state and consistent with the supervision of other similar offenders sentenced in the receiving state." Interstate Compact For Adult Offender Supervision Rules (Mar. 2010) at 37.*fn3 Additionally, Rule 4.103(a) provides:

At the time of acceptance or during the term of supervision, the compact administrator or supervising authority in the receiving state may impose a special condition on an offender transferred under the interstate compact if that special condition would have been imposed on the offender if sentence had been imposed in the receiving state.

Id. at 39.

In Pennsylvania, the Board is responsible for providing probation supervision services and one of its many functions is to supervise offenders sentenced by other states where, as was the case here, a request is accepted pursuant to the Interstate Compact. Within this responsibility, the Board has the authority to designate conditions of probation for an offender under its supervision. See 61 PA.STAT. § 331.33 (2007) (repealed and replaced by 61 PA.CONS.STAT. § 7122); see also 61 PA.STAT. §§ 331.17-17a (2007) (repealed and replaced by 61 PA.CONS.STAT. § 6133(a)); 37 PA.CODE ...


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