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Simpson v. PA. Board of Probation/Parole

United States District Court, M.D. Pennsylvania

July 26, 2019

CHALMERS A. SIMPSON, JR., Plaintiff,
v.
PA. BOARD PROBATION / PAROLE, et al., Defendants.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         On May 20, 2019, the plaintiff, Chalmers A. Simpson, Jr., filed a pro se motion to compel discovery, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. (Doc. 37.) He seeks an order compelling the defendants to produce any audio recordings or transcripts of several hearings-some of them abbreviated due to continuances-held in the course of state parole revocation proceedings against him in December 2015 and January 2016.

         On or about January 31, 2019, Simpson served the defendants with written interrogatories and requests for production, pursuant to Rules 31 and 34 of the Federal Rules of Civil Procedure. In Simpson's Document Request No. 12, he requested: “Copies of all records, testimony, transcripts, letters, documents, recordings of any and all hearings . . . which includes[] panel, violation, detention, preliminary, and probable cause hearings which was held (sic) . . . .” (Doc. 37, at 11-12.) In response to this document request, the defendants have produced to Simpson a stenographic transcript of a preliminary detention hearing held before a parole hearing examiner on January 29, 2016. (Doc. 45-1.) The defendants have advised Simpson that no other transcripts or recordings exist, and they have submitted into the record an unsworn declaration by Morgan Davis, an attorney with the state parole board, attesting to the same. (Doc. 45-2.) From the parties' submissions, it does not appear that the defendants have produced a copy of the audio recording itself.

         Simpson now moves to compel the defendants to produce audio recordings and any transcripts of hearings conducted on: December 24, 2015; January 8, 2016; and January 25, 2016. He also seeks production of the audio recording from which a stenographer derived the transcript of the January 29, 2016, hearing already produced by the defendants.

         Under the federal rules,

[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Simpson claims that he was deprived of his Fourteenth Amendment right to due process because the defendants failed to hold a preliminary hearing on his parole violation charges within fourteen days after his arrest and incarceration, and because he was denied his due process right to be represented by counsel in these same proceedings. The proper scope of discovery with respect to these claims is further cabined by the factual context upon which these claims rest.[1]

         On December 12, 2015, Simpson was arrested in Swatara Township, Pennsylvania, and charged with felony retail theft.[2] Because he was on parole release for a prior felony conviction, [3] after his preliminary arraignment before a state magisterial district judge that same day, [4] Simpson was transferred to the custody of the Pennsylvania Department of Corrections pursuant to a parole violator warrant.

         On December 22, 2015, while incarcerated at a state correctional institution, Simpson was provided with a written notice of charges and hearing. The notice informed Simpson that he had charged with a parole violation due to the new criminal charges against him for retail theft, and with an unrelated pair of technical parole violations arising out of his alleged failure to maintain regular contact with parole agents on November 5 and 6, 2015. The notice informed Simpson that a preliminary and detention hearing before a hearing examiner had been scheduled for December 24, 2015.

         On December 24, 2015-twelve days after Simpson's initial detention-Simpson appeared before a hearing examiner for his preliminary and detention hearing, but no attorney was available to represent him because the county public defender's office was apparently closed that day. Simpson declined to waive his right to be represented by an attorney, and he subsequently refused to sign a written request for continuance form. The hearing examiner continued the preliminary and detention hearing until January 8, 2016, to permit Simpson to secure counsel and due to the unavailability of witnesses Simpson wished to call in his defense. In addition to the hearing officer, Simpson's parole agent, defendant Amy Burrell, signed the continuance request form as a witness, below a note that Simpson had refused to sign the form.

         On January 8, 2016-twenty-seven days after Simpson's initial detention-Simpson again appeared before a hearing examiner for his preliminary and detention hearing. This time, an attorney from the county public defender's office, Joshua Yohe, Esq., was available and offered to represent Simpson. But Simpson desired to be represented by privately retained counsel.[5] As a result of this, as well as the unavailability of witnesses Simpson wished to call in his defense, the hearing was once again continued until January 25, 2016. This time, Simpson alleges that he was “threatened” and “forced” by the hearing examiner to sign the continuance request form.[6] At the preliminary and detention hearing, which was ultimately held on January 29, 2016, the hearing examiner stated that he also advised Simpson on January 8, 2016, that no further continuances for Simpson to secure attorney representation would be permitted, as he had been provided ample time to do so, and because a public defender had already been offered to represent him.

         On January 25, 2016, Simpson's hearing was again continued, this time on the parole board's motion due to a weather closing-neither the hearing examiner nor ...


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