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Michael D. Perry v. Pennsylvania Department of Corrections

May 24, 2011

MICHAEL D. PERRY, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Bissoon

MEMORANDUM OPINION AND ORDER

For the reasons that follow, Defendants‟ Motion to Dismiss (Doc. 36) will be granted. Michael D. Perry ("Plaintiff") is a state prisoner currently incarcerated in the State Correctional Institution at Mercer ("SCI-Mercer"), located in Mercer, Pennsylvania. Plaintiff brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging deprivations of his rights under First and Fourteenth Amendments to the Constitution of the United States, as well as violations of various state laws and Department of Corrections ("DOC").*fn1 Compl. (Doc. 7) ¶¶ 85, 100, and 109. This suit commenced with this Court‟s receipt of Plaintiff‟s complaint, without filing fee, on March 23, 2010.*fn2 (Doc. 1). Leave to proceed in forma pauperis ("IFP") was granted on April 2, 2010. (Doc. 5). Plaintiff consented to the jurisdiction of a magistrate judge on April 2, 2010. (Doc. 8). Defendants consented to the same on May 18, 2010. (Doc. 13).

Defendants filed a motion to dismiss on September 22, 2010. (Doc. 36). Plaintiff timely responded to Defendants‟ motion on October 19, 2010. (Docs. 40 -- 41). This issue is ripe for disposition.

A. Plaintiff's Factual Allegations and Legal Claims

Plaintiff‟s claims arise from a series of unfavorable parole recommendations from the DOC, which were factors in four separate denials of parole. The following is a summary of Plaintiff‟s factual allegations.

Plaintiff alleges that, in April of 1996, he pleaded guilty to various sex offenses "inflicted against minor and adult victims." (Doc. 7) ¶ 14. For these crimes, Plaintiff was sentenced to a term of imprisonment of ten to 20 years. Id. ¶ 15. In spite of the necessity of completing a required regimen of sex offender counseling in order to be eligible for parole, Plaintiff alleges that such counseling was denied until roughly two years before his minimum release date. Id. ¶¶ 20, 24. Plaintiff further alleges that, prior to his first "staffing" for institutional parole support, he had satisfactorily completed the sex offender programming required for parole. Id ¶ 25. He also alleges that he has, for years, voluntarily participated in formal and informal therapy programs at the DOC, and has received years of ongoing sex offender therapy after he completed the above-mentioned programming. Id. ¶¶ 25 -- 26. Plaintiff also alleges that, during the first ten years of his incarceration, he was a model inmate. Id. ¶ 26.

On November 28, 2005, while he was housed at the State Correctional Institution at Chester ("SCI-Chester"), Plaintiff appeared before DOC officials for a "staffing" regarding support for parole. Id. ¶ 29. He was informed on December 5, 2005, that he did not receive institutional support for parole. Id. ¶ 30. When he sent a request to Defendant Dragovich asking why his staffing was denied, Defendant allegedly responded that "Plaintiff displayed a condescending attitude during his staffing . . . [and that] the serious nature of Plaintiff‟s offense and criminal pattern also was a deciding factor." Id. ¶ 32. Plaintiff filed a grievance concerning the issue, which was denied at the initial level by Defendant Bivins. Id. ¶ 35. Plaintiff appealed the initial denial, which was affirmed by Defendant Sunshine. Id. ¶ 36. Defendant Burks denied Plaintiff‟s final appeal. Id. ¶ 37. On March 24, 2006, the Pennsylvania Board of Probation and Parole ("PBPP" or "Board") denied Plaintiff‟s request for parole. Id. ¶ 38. Listed as reasons for the Board‟s unfavorable determination were: (1) "[t]he negative recommendations made by the [DOC;]" (2) [r]eports, evaluations, and assessments concerning [Plaintiff‟s] mental behavior, condition, and history that reflects ongoing risk to the community[;]" and (3) "[Plaintiff‟s] need to participate in and complete additional institutional Sex Offender Programs." Id. ¶ 38.

After the first denial of parole, Plaintiff transferred to SCI-Mercer. In November of 2006, the staff of that institution voted against recommending Plaintiff for parole. Id. ¶ 44. Plaintiff alleges that this result was based on the severity of his crimes. Id. ¶ 48. Defendant Stowitzkey, at that time the superintendent of SCI-Mercer, informed Plaintiff that "[he] needs more therapy," and asserted that "Plaintiff still fantasizes about his crimes." Id. ¶ 45. Plaintiff avers that he does not fantasize about his crimes. Id. On May 21, 2007, the PBPP once again denied Plaintiff‟s application for parole. Id. ¶ 46. As bases for this denial, the Board cited the three concerns raised in their response to Plaintiff‟s first parole application. They also added:

(1) "[Plaintiff‟s] minimization of the nature and circumstances of the offenses committed[;]" and

(2) "[Plaintiff‟s] interview with the hearing examiner and or board member." Id. ¶ 46.

Plaintiff was staffed for parole a third time on January of 2008. Id. ¶ 49. Once again, his application did not receive support from prison staff. Id. ¶ 50. Again, citing a negative DOC recommendation, the PBPP denied Plaintiff parole on May 22, 2008. Id. ¶ 54. Plaintiff alleges that the Board‟s reasons were: (1) "The negative recommendation made by the [DOC;]" and (2) "[r]eports, evaluations and assessments concerning [Plaintiff‟s] mental and behavior condition and history that reflects ongoing risk to the community." Id. The Board further indicated that it would review whether Plaintiff had completed the DOC‟s "prescriptive program plans" at Plaintiff‟s next parole hearing. Id. ¶ 55.

Plaintiff transferred to SCI-Pittsburgh, and was staffed for a fourth time on March 13, 2009. Once again he failed to receive DOC support. Id. ¶¶ 72 -- 73. Plaintiff grieved this result. Id. ¶ 74. Plaintiff alleges that he did not receive a complete answer at the initial level, and thus appealed to the Defendant Chamberlain, the superintendent. Defendant Chamberlain allegedly responded that, inter alia, Plaintiff had a "sense of entitlement," and that she was not convinced that Plaintiff was no longer a threat to the community. Id. ¶ 78. Additionally, she allegedly opined that Plaintiff‟s "perceived right to release outweighs any remorse experienced." Id. Defendant Varner allegedly addressed Plaintiff‟s final appeal to the denial of this grievance. Id. ¶ 81. On July 24, 2009, the PBPP denied Plaintiff‟s request for parole. Id. ¶ 82. The Board‟s reasons were as follows: (1) "[Plaintiff‟s] risk and needs assessment indicating [his] level of risk to the community[;]" (2) "[t]he negative recommendation made by the [DOC;]" (3) "[r]eports, evaluations and assessments/level of risk indicates [Plaintiff‟s] risk to the community[;]" (4) "[Plaintff‟s] failure to demonstrate motivation for success[;]" and (5) "[Plaintiff‟s] lack of remorse for the offenses committed." Id. Additionally, the PBPP indicated that, at Plaintiff‟s next parole interview, it would consider "[w]hether [Plaintiff has] successfully completed a treatment program for Sex Offender Program Aftercare." Id.

Plaintiff claims that Defendants‟ actions with respect to the formulation of their recommendations to the PBPP violated the Due Process and Equal Protections clauses of the Fourteenth Amendment, as well as Pennsylvania state law. Id. ¶¶ 87, 100. He also claims that, to the extent that their recommendations are based on his alleged need for additional therapy, his Fourteenth Amendment rights were violated due to the lack of options for formal sex offender therapy available to him prior to 2004. Id. ¶ 100. Finally, he alleges that Defendants retaliated against Plaintiff‟s filing of his grievance in 2009 by accusing him of being "arrogant, condescending, unremorseful, entitled, and needing more therapy." Id. ¶ 106. Plaintiff seeks damages, as well as declaratory and injunctive relief.

B. Standard of Review

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. Cnty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. , 129 S.Ct. 1937, 1949 (2009). A court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.

Emp.s‟ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004). Nor must a court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Furthermore, it is not proper for a court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc.‟d ...


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