The opinion of the court was delivered by: (Judge Caldwell)
Presently before the court is Defendants' Second Motion to Dismiss the Amended Complaint, addressing the sole remaining claim: whether plaintiff, Shawn Jordan, a convicted sex offender, has a liberty interest in not being removed from a sex offender treatment program ("SOTP" or "program") without due process because his participation is a prerequisite for his parole eligibility, as required by 42 Pa. Con. Stat. Ann. § 9718.1 (West 2007). Defendants argue that Jordan fails to state a claim because his offenses predate the statute, which has not been made retroactive. Jordan has not filed a brief in opposition to the motion, nor has he requested an enlargement of time to do so.
For the following reasons, Plaintiff's claim will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
By memorandum and order of March 12, 2012, the court granted
in part, and denied in part, Defendants' first Motion to Dismiss the
Amended Complaint. Jordan v. Beard, 2012 WL 833023. The only claim
that survived was Jordan's procedural due process claim challenging the manner of his
removal from the SOTP program. That claim might have failed for the
simple reason that section 9718.1 did not apply to Plaintiff because
his sexual offenses predated the act. 2012 WL 833023, at *5. However,
we could not decide the claim on that basis because the necessary
facts were not before us at the time. Id. Accordingly, Defendants were
granted leave to submit a second motion to dismiss which would bring
those facts before us in a procedurally correct manner. Id.*fn1
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted). A court may consider documents that are attached to or submitted with the complaint, Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002), and matters of public record, Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), including court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999) (citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
"Pro se complaints are 'liberally construed' and 'held to less stringent standards than formal pleadings drafted by lawyers[.]'" Jackson v. Div. of Developmental Disabilities, 394 F. App'x 950, 951 n.3 (3d Cir. 2010) (nonprecedential) (quoted case omitted). Nonetheless, the complaint still "must contain allegations permitting 'the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoted case omitted). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend. See Fletcher--Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, leave to amend need not be granted if amendment would be futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
With these principles in mind, we set forth the background to this litigation.
In pertinent part, 42 Pa. Con. Stat. Ann. § 9718.1 (West 2007), requires persons convicted of certain sex offenses against a minor to "attend and participate in a [DOC] program of counseling or therapy . . . ." Id. § 9718.1(a). This act applies to offenses committed on or after the effective date of the act, December 20, 2000, and specifies that the sex offender "shall not be eligible for parole unless the offender has . . . participated in the program . . . ." Id. § 9718.1(b)(1)(ii).
In 1988 Jordan was charged with, among other crimes, murder and involuntary deviate sexual intercourse with a minor. Commonwealth v. Jordan, CP-51-CR-0128911-1989 (Pa. Court of Common Pleas - Phila. Cnty.).*fn2 Jordan pled guilty to the charges, and on October 15, 1990, he was sentenced to fifteen- to forty-years imprisonment. Id.; see also Jordan v. State Police, Civ. No. 04-5450, 2005 WL 697428 at *3 (E.D. Pa. Mar. 25, 2005).
On April 9, 2008, Jordan began participating in the SOTP. Doc. 25, Am Compl., ECF p. 3.*fn3 2 Jordan was removed from the program on May 19, 2008.*fn4 Id. Exercising their "professional opinion," treatment staff had determined that Jordan's "actions and statements indicate[d] that he [was] not able to ...