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Joseph W. Farmer v. Michael Potteiger

November 5, 2012

JOSEPH W. FARMER, PLAINTIFF,
v.
MICHAEL POTTEIGER, ET AL., DEFENDANTS.



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

:(Magistrate Judge Carlson)

MEMORANDUM

Here we consider the Report and Recommendation of Magistrate Judge Martin C. Carlson concerning Plaintiff Joseph W. Farmer's 42 U.S.C. § 1983 action. (Doc. 33.) Magistrate Judge Carlson recommends granting Defendants' motions to dismiss (Docs. 13, 31) because Plaintiff's claims have been fully litigated and are also time barred. (Doc. 33 at 18.) Plaintiff filed Objections to Magistrate Judge's Report Recommendations (Doc. 35) on October 16, 2012. Defendants have not filed a responsive brief and the time for doing so has passed. Therefore, this matter is ripe for disposition. For the reasons discussed below, we adopt the Magistrate Judge's Report and Recommendation (Doc. 33) in part, grant Defendants' motions to dismiss (Docs. 13, 31) in part, and allow Plaintiff leave to file an amended complaint on a limited basis.

I. Background

By way of general background, the Report and Recommendation set out the following:

On December 11, 1981, Joseph W. Farmer was arrested and charged with Aggravated Assault, Unlawful Restraint, and Rape, of a co-worker on the evening of December 10, 1981. A jury found Mr. Farmer guilty of these offenses on May 10, 1982, and on January 24, 1983, he was sentenced to an aggregate term of 131/2 to 32 years imprisonment. Since his incarceration, Farmer has been reviewed and denied parole on at least two occasions by the Pennsylvania Board of Probation and Parole ("Board"), once in 1995 and again in 2008. In June of 1995, the Board first denied Farmer's application for parole, observing that Farmer showed "very high assaultive behavior potential," that he needed counseling, and that he had failed to benefit from a treatment program for convicted sex offenders. The Board informed Farmer that before his next parole review, [h]e would need to participate in sex offender treatment and other prescribed programming, maintain a clear conduct record, and earn an institutional recommendation for parole.

On April 9, 2008, the Board again denied Farmer's application for parole, giving as reasons for the denial the fact that Farmer continued to deny the nature and circumstances of the crimes he was convicted of committing; he refused to accept responsibility for those offenses; and he demonstrated continued need to participate in and complete additional institutional programs. (Doc. 33 at 1-2 (internal quotations and citations omitted).)

In his Complaint, Plaintiff sets out the "[c]onduct that violates the plaintiff's constitutional rights." (Doc. 1 at 7.)

The named defendants, under color of state law, embraced the new philosophy "public safety." They particularly by utilizing the information contained in the plaintiff's DC-15 file, to classify him as a violent offender, based on the nature of his offense and protection of public safety. The plaintiff's DC-15 file also clearly indicates, his Conviction Date (January 24, 1983), and Minimum Date (June 16, 1995). Therefore, the named defendants were knowledgeable, and acquiesced in violating the plaintiff's constitutional rights, and directed others to violate them. The amended Parole Act of June 1, 1995, and subsequent Parole Acts, in conjunction with VOI/TIS, were applied retroactively (after the plaintiff's conviction). The aforementioned unconstitutional procedures/policies, along with other retroactive applied procedures/policies, are enumerated throughout this complaint, and they violate clearly established law. The named defendants continue to acquiesce in violating the plaintiff's constitutional rights. They also mandated, that the plaintiff participate/complete two retroactive "admitter" sex offender programs (Exs. 36, 37 & 41), to qualify for parole. Even though, participation in the aforementioned programs are minimum sentence driven (Ex. 33). The plaintiff's minimum sentence was June 16, 1995. The named defendants, who participated in the grievance process, had knowledge of the previous mentioned violations, through the plaintiff's grievance (Doc. 35), and acquiesced in the violations by not addressing the problems outlined in the grievance. The aforementioned exhibits, and the named defendants' actions, reveal that no corrective action was taken to resolve the enumerated unconstitutional procedures/policies, applied retroactively. (Doc. 1 at 8.)

Defendants are individuals currently or formerly associated with the Pennsylvania Board of Probation and Parole, Pennsylvania Department of Corrections officials, SCI-Dallas officials, and others related to the parole process.*fn1 (Doc. 1 at 2-6.)

Plaintiff filed a previous action in this Court asserting constitutional violations related to parole, Civil Action No. 4:09-CV-166 (M.D. Pa.). Some Defendants named in this action were also named in the earlier case.

II. Discussion

A. Legal Standards

1. Report and Recommendation Review

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 ...


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