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Joseph W. Farmer v. Catherine C. Mcvey

February 28, 2011

JOSEPH W. FARMER, PLAINTIFF,
v.
CATHERINE C. MCVEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard P. Conaboy United States District Judge

JUDGE CONABOY

Magistrate Judge Carlson

MEMORANDUM

Here we consider Magistrate Judge Martin C. Carlson's Report and Recommendation (Doc. 54) issued on January 24, 2011, in which he recommends the Court grant Defendants' Motion to Dismiss (Doc.21) and Plaintiff's Amended Complaint (Doc. 21) be dismissed. Plaintiff filed objections to the Report and Recommendation on February 8, 2011. (Doc. 55.) Defendants filed a Brief in Opposition to Plaintiff's Objections to Magistrate Judge Carlson's January 24, 2011 Report and Recommendation (Doc. 56) on February 17, 2011. Plaintiff has not filed a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 140, 150-53 (1985). Moreover, when no objections are filed, the district court is required only to review the record for "clear error" prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990 F. Supp. 375, 378 (M.D. Pa. 1998). However, when objections are filed to a magistrate judge's Report and Recommendation, the district judge makes a de novo review of those portions of the report or specified proposed findings or recommendations to which objection is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987).

Because Plaintiff filed objections, we have undertaken a de novo review of those matters to which he objected. Having done so, for the reasons discussed below we concur in part with the Report and Recommendation (Doc. 54). We conclude that Defendants' Motion to Dismiss (Doc. 29) is properly granted except as to Plaintiff's Ex Post Facto claim related to the Violent Offenders Incarceration and Truth-In-Sentencing Act, 42 U.S.C. § 13704, et seq. The Motion to Dismiss is denied as to this claim.

I. Background

Plaintiff is a Pennsylvania state inmate. On December 11, 1981, Plaintiff was arrested and charged with "Aggravated Assault, Unlawful Restraint, and Rape, of a co-worker, . . . on the evening of December 10, 1981." Farmer v. McVey, Civ. No. 05-6383, 2007 WL 1276948, at *1 (E.D. Pa. May 1, 2007). On May 10, 1982, a jury found Plaintiff guilty of these offenses. Id. On January 24, 1983, he was sentenced to an aggregate term of 13 1/2 years to 32 years imprisonment. Id.

Plaintiff asserts that at the time of his conviction "the following Parole Acts were established law: Act of 1941, Act of 1943 and Act 501, 1965." (Doc. 45 at 8.) Plaintiff further asserts that the Pennsylvania sentencing guidelines provide that a minimum term is not to exceed one-half of the maximum term (id. (citing 42 Pa. C.S. § 9756(b))) and that parole may be granted after expiration of the minimum term (id. (citing 61 Pa. C.S. § 331.21)).

Plaintiff also avers the following.

In 1995, the defendants, implemented the 1996 Parole Amendments before its effective date. The utilization of the new procedure/policies retroactively by the defendants, affected the plaintiff's parole eligibility/suitability unfairly. The use of the unconstitutional procedure/policies violates the plaintiff's constitutional rights, and the U.S. Constitution's Due Process and Ex Post Facto Clauses. These violations took place during the plaintiff's incarceration/parole proceedings, at SCIGraterford between 1994 and 2008, and also at SCI-Dallas from December 6, 2007, to the present. (Doc. 45 at 9.)

Plaintiff also asserts claims related to the Violent Offender and Truth-In-Sentencing (VOI/TIS) Incentive Grants, 42 U.S.C. §§ 13701 and 13704. (Doc. 21 at 7-9.) He claims harm based on the retroactive application of these provisions, specifically a change in his classification and the increased length of a minimum term he must serve. (Id. at 7.)

Plaintiff claims he is seeking damages "equal to or greater than $13.5 million." (Doc. 45 at 9.) He also seeks "declaratory and injunctive relief, and a new parole hearing using procedures/policies that were in effect at the time of his conviction/sentencing. (Id.) Plaintiff is not seeking immediate or speedier release, and not challenging the denial of parole, or to overturn the results of any prior parole hearings." (Id.)

II. Procedural History

Defendants provide the following uncontested procedural history in their Brief in Support of Motion to Dismiss (Doc. 30).

Plaintiff initially commenced this litigation against some of the current defendants on January 27, 2009. This Court reviewed the Complaint and, sua sponte, dismissed it as frivolous because it concluded that Plaintiff was challenging the fact or duration of his confinement and, thus, the appropriate vehicle for litigation was a writ of habeas corpus.

Plaintiff appealed to the Third Circuit. Despite acknowledging that claims involving the fact or duration of confinement must be brought through writs for habeas corpus, the Court vacated the matter as it concluded that Plaintiff's Complaint did not provide sufficient details to determine whether his claims were cognizable under 42 U.S.C. § 1983. After remand, this Court reviewed Plaintiff's Complaint and, because this initial pleading did not provide sufficient detail to assess whether a claim had been alleged, this Court allowed Plaintiff the opportunity to file an Amended Complaint.

Plaintiff filed his Amended Complaint--adding further defendants--on or about January 26, 2010. Thereafter, Defendants received waiver of service forms dated March 30, 2010. These forms have been completed and returned. (Doc. 30 at 7-8.)

Defendants filed the pending Motion to Dismiss (Doc. 29) on April 21, 2010, asserting that Plaintiff's Amended Complaint (Doc. 21) fails to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). By Report and Recommendation dated January 24, 2011, Magistrate Judge Carlson agrees with Defendants and recommends dismissal of Plaintiff's Amended Complaint. (Doc. 54 at 31.) As noted above, Plaintiff filed objections to the Report and Recommendation on February 8, 2011 (Doc. 55); Defendants filed a Brief in Opposition to Plaintiff's Objections to Magistrate Judge Carlson's January 24, 2011 Report and Recommendation (Doc. 56) on February 17, 2011; and Plaintiff has not filed a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

III. Discussion

A. Motion to Dismiss Standard

A party may move to dismiss a claim or claims set forth in a plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted." The purpose of a motion to dismiss is to test the legal sufficiency of the complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). The defendant bears the burden of showing that no claim has been presented. See, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937 (2009).

"[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted).

McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week ...


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