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McCain v. Wetzel

United States District Court, M.D. Pennsylvania

May 11, 2017

AMIR HAKIM MCCAIN a/k/a JOHN MCCAIN, Plaintiff,
v.
JOHN E. WETZEL, et al., Defendant.

          Schwab Magistrate Judge

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         Before the court is a report and recommendation filed by the magistrate judge in which she recommends that Petitioner Amir McCain's (“McCain”) amended complaint filed under 42 U.S.C. § 1983 be dismissed for failure to state a claim. The magistrate judge screened the complaint pursuant to 28 U.S.C. § 1915A and recommended that the amended complaint be dismissed with prejudice.

         I. Background

         McCain initially filed his action on November 7, 2014, naming numerous defendants from the Pennsylvania Department of Corrections, SCI-Forest, and the Pennsylvania Board of Probation and Parole. The original complaint alleged violations of the Fifth Amendment guarantee against self-incrimination and violations of the Ex Post Facto Clause of the United States Constitution.

         After the preliminary screening, the magistrate judge granted McCain leave to file an amended complaint as to his ex post facto claim only. (Doc. 28.) In disregard of that order, McCain's amended complaint not only contained the names of the original defendants plus two additional defendants but it also continued to raise his Fifth Amendment claim and added a due process claim.

         McCain was convicted of rape in April 1991 and was sentenced to 21 to 60 years in jail. (Doc. 31.) He alleges certain deficiencies in his trial, conviction, sentencing, and denial of his parole. (See Doc. 36, p. 4.)

         The magistrate judge examined the allegations in the complaint in accordance with the standard for pleading as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250 (3d Cir. 1994), and Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997). The magistrate judge concluded that McCain failed to allege facts from which it could reasonably be inferred that the defendants violated the Fifth Amendment, the Ex Post Facto Clause, or the Due Process Clause of the United States Constitution.

         II. Discussion

         A. Ex Post Facto Clause

         The Ex Post Facto Clause of the United States Constitution generally prohibits Congress and the states from enacting any law that imposes a punishment for an act which is not punishable at the time it was committed, imposes additional punishment to that then prescribed, or deprives one charged with a crime of any defense available according to the law at the time it was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990).

         McCain claims that 42 Pa.C.S. § 9718.1 and Department of Corrections Policy DC-43, which mandate that convicted sex offenders participate in a sex offender treatment program, are ex post facto as they went into effect in 2000, well after he was convicted and sentenced for rape.

         The magistrate judge noted that there are two prongs to an ex post facto inquiry: “(1) whether there was a change in the law or policy which has been given retrospective effect, and (2) whether the offender was disadvantaged by the change.” (Doc. 36, p. 11 (citing Richardson v. Pa. Bd. of Prob. and Parole, 423 F.3d 282, 287-88 (3d Cir. 2005).) In Coles v. Folino, 2014 WL 5685547, at *4 (W.D. Pa. Nov. 4, 2014), the court held that a petitioner alleging an ex post facto claim must demonstrate a particularized disadvantage. The magistrate judge opined that McCain has failed to meet that burden.

         McCain argues in his objections that he had a significant likelihood of parole under the pre-1996 policy. Defendant appears to argue that he was denied a Megan's Law sexually violent ...


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