United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge
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.
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.
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.
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.)
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.
Ex Post Facto Clause
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).
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.
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
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