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Bruce Walker v. Dale A. Meisel and

October 14, 2011

BRUCE WALKER
v.
DALE A. MEISEL AND LEHIGH COUNTY PRISON



The opinion of the court was delivered by: Elizabeth T. Hey, M.J.

MEMORANDUM AND ORDER

In this action brought pursuant to 42 U.S.C § 1983, pro se Plaintiff Bruce Walker ("Plaintiff") seeks monetary damages against Defendants Dale A. Meisel and Lehigh County Prison (collectively "Defendants") for unlawful confinement in violation of his due process rights because Defendants failed to award him time credit to his prison sentence while he was on parole in an inpatient drug rehabilitation program. Presently before the court is Defendants' motion for summary judgment (Doc. 20). For the reasons set forth herein, I will grant the motion and enter judgment for Defendants.*fn1

I. FACTS AND PROCEDURAL HISTORY

The facts are taken from Plaintiff's original complaint and brief (Doc. 3), Plaintiff's brief construed as an amended complaint (Doc. 17), Petitioner's criminal docket in the Court of Common Pleas of Lehigh County (CP-39-CR-0001019-1996) ("Lehigh Co. Docket"), and a Report and Recommendation filed by the Honorable Henry Perkin, United States Magistrate Judge for the Eastern District of Pennsylvania, in Plaintiff's prior Petition for Writ of Habeas Corpus. See Walker v. Meisel, No. 09-3644 (E.D. Pa. May 17, 2010) (Perkin, M.J.) ("Habeas R&R").

On October 1, 1996, Plaintiff entered a plea of nolo contendere to simple assault before the Honorable Edward D. Reibman of Lehigh County, who then sentenced Petitioner to a term of imprisonment of not less than time served and not more than one day less than two years. See Lehigh Co. Docket 10/01/1996 (Entry 9). In addition, Judge Reibman sentenced Plaintiff to pay the costs of prosecution and restitution, and instructed that he be given credit for time spent in custody. Id. Plaintiff did not appeal his sentence.

Judge Reibman granted Plaintiff parole effective November 22, 1996. See Lehigh Co. Docket 11/22/1996. As a condition of parole, Judge Reibman required Plaintiff to attend an inpatient drug and alcohol rehabilitation program. See id. 10/01/1996 (Entry 10). Plaintiff attended in-patient drug treatment at Keenan House, a drug treatment and rehabilitation facility located in Allentown, Pennsylvania, for a period of twenty-eight days from November 22, 1996, through December 20, 1996. See Doc. 3 at 4 (Statement of Claim).

On June 26, 1997, the Office of Lehigh County Probation and Parole filed allegations of parole violations against Plaintiff. Petitioner failed to appear for his Gagnon I hearing*fn2 on March 23, 1998, and a bench warrant was issued by Judge Reibman. See Lehigh Co. Docket 03/23/98. Judge Perkin outlined Plaintiff's subsequent state court odyssey as follows:

On February 4, 2002, [Plaintiff] was brought before Judge Reibman. Following dissolution of the bench warrant, his Gagnon II hearing was held. The court concluded that [Plaintiff] violated the conditions of his parole as alleged, and revoked parole remanding him to Lehigh County Prison to serve the balance of the sentence imposed on October 1, 1996. [Plaintiff] was immediately re-paroled to Franklin County.*fn3 [Plaintiff] was transferred from Lehigh County Prison to Franklin County Prison on February 8, 2002.

On October 14, 2002, Lehigh County Parole filed a petition alleging violations of [Plaintiff's] parole. . . . [Plaintiff] was arrested on April 16, 2007 and held in Cambria County Prison with a detainer from Lehigh County for his parole violations. On May 21, 2007, [Plaintiff's] Gagnon II hearing was held. [Plaintiff] conceded the allegations. Judge Reibman revoked [Plaintiff's] parole and remanded him to Lehigh County Prison to serve the balance of his sentence. [Plaintiff] was immediately reparoled and ordered to abide by his original conditions.

On March 10, 2008, another arrest warrant was issued for violations of parole. The arrest warrant was returned as served on August 4, 2008 and [Plaintiff's] Gagnon I hearing was waived on August 7, 2008. On August 25, 2008, following [Plaintiff's] Gagnon II hearing, Judge Reibman concluded that [Plaintiff] had again violated the conditions of his parole. It was determined No. 09-1667, 2009 WL 82707, at 1 n.1 (3d Cir. Jan. 14, 2009) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 784 (1973)). Gagnon extended the Supreme Court's ruling in Morrissey v. Brewer, 408 U.S. 471 (1972), which held that a parolee facing porole revocation is entitled to due process protections. See Gagnon, 411 U.S. at 782.

that [Plaintiff] had failed to report in person at such times and places as instructed and had changed his approved residence without permission. [Plaintiff's] parole was revoked and he was remanded to Lehigh County Prison to serve the balance of his sentence. . . .

Habeas R&R at 2-4 (internal footnote omitted); see also Lehigh Co. Docket. In calculating the remaining balance on Plaintiff's sentence, Lehigh County Prison did not give Plaintiff credit for the twenty-eight days he spent in Keenan House while on parole.*fn4

Plaintiff filed two motions to modify or reduce sentence, which were denied by Judge Reibman by order entered on November 5, 2008, and Petitioner did not appeal. See Habeas R&R at 4; Lehigh Co. Docket.

On July 15, 2009, Judge Reibman filed a correspondence from Plaintiff which the state court treated as a petition for writ of habeas corpus. See Habeas R&R at 7; Lehigh Co. Docket. Plaintiff alleged ineffectiveness of counsel, false testimony from the parole officer, and erroneous time calculation. On July 30, 2009, Judge Reibman denied Plaintiff's request for habeas corpus, noting that Plaintiff sought to raise the same issues that were ...


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