The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
JOHN HART,
Case No. 2:17-cv-05055-JDW
Plaintiff,
v.
THOMAS TARRANT, et al.,
Defendants.
MEMORANDUM
In this civil rights action, John Hart alleges that two Pennsylvania parole officers, Thomas
Tarrant and Kimberly Ann Mackey, violated his Due Process and Eighth Amendment rights by
bringing him to an untimely parole revocation hearing. Hart also claims that Officer Tarrant made
false statements at Hart’s revocation hearing in order to convince the hearing examiner that the
revocation hearing was timely. For the reasons that follow, the Court concludes that Hart has
failed to provide any evidence to establish the material elements of his claims. Additionally,
qualified immunity and sovereign immunity protect the Officers from liability in this action.
I. FACTUAL BACKGROUND
A. Parole Revocation Hearing
On November 16, 2011, Hart was arrested in Philadelphia on multiple charges while on
parole. The Pennsylvania Board of Probation and Parole (“Board”) lodged a detainer against Hart
based on his new arrest. Four years later, on November 12, 2015, a jury in Philadelphia convicted
Hart of harassment and stalking. On December 1, 2015, Officer Mackey authorized Officer
Tarrant to start the process of revoking Hart’s parole.
Before a parolee is recommitted as a convicted violator, “[a] revocation hearing shall be
held within 120 days from the date the Board received official verification of the plea of guilty or
nolo contendere or of the guilty verdict . . .” 37 Pa. Code § 71.4(1). As part of this process, on
December 1, 2015, Officer Tarrant requested official verification of Hart’s new conviction via
email sent to Philadelphia County. Officer Tarrant did not receive a response and sent a second
email on February 1, 2016, again requesting official verification of Hart’s new conviction. Officer
Tarrant’s second email also went unanswered. On February 19, 2016, at Officer Mackey’s
direction, Officer Tarrant went in person to recover the official verification from the Philadelphia
Court of Common Pleas.
On March 1, 2016, Officer Tarrant met with Hart and gave him notice of the Board’s intent
to bring him to a parole revocation hearing. At the revocation hearing on April 5, 2016, the hearing
examiner asked Officer Tarrant when he obtained official verification of Hart’s conviction, to
which Officer Tarrant replied, “[i]n February, I believe.” (ECF No. 26, Ex. 5, 19:7-20:1.) The
hearing examiner subsequently recommitted Hart as a convicted parole violator.
B. Appeal Of Parole Revocation Decision
Following his sentencing, Hart filed a timely request for administrative relief from the
hearing examiner’s decision to recommit him as a convicted parole violator. On October 3, 2016,
the Board affirmed its revocation decision. On October 24, 2016, Hart appealed the Board’s
decision to the Commonwealth Court of Pennsylvania. On June 2, 2017, the Commonwealth Court
held that the Board had not met its burden of proving by a preponderance of the evidence that the
revocation hearing was timely pursuant to 37 Pa. Code § 71.4. See Hart v. Pa. Bd. Of Probation
and Parole, No. 1769 C.D. 2016, 2017 WL 2391957, at *3 (Pa. Commw. Ct. June 2, 2017).
Therefore, the Commonwealth Court reversed the Board’s decision. The Commonwealth Court
noted that although the Trial Disposition and Dismissal Form that Officer Tarrant presented at the
revocation hearing constituted official verification, it did not contain any indication of when
Officer Tarrant had received it. Rather, the form had only a print date of November 12, 2015. Id.
The Commonwealth Court also observed that the Board relied on Form PBPP-253C in determining
that the revocation hearing was timely but that that Form was not admitted into evidence in
proceedings before the Board. Id at 7. As a result of the Commonwealth Court’s decision, Hart
was released from custody on June 16, 2017, after having served two hundred and twelve days for
his parole violation.
C. Procedural History
On March 6, 2018, Hart filed an Amended Complaint, in which he brings this civil rights
action under 42 U.S.C. § 1983 and state law. He alleges that Officers Tarrant and Mackey
infringed on his Due Process and Eight Amendment rights by holding an untimely revocation
hearing in violation of 37 Pa. Code § 71.4. He also asserts an intentional misrepresentation claim,
in which he alleges that Officer Tarrant intentionally mispresented at the revocation hearing that
he received notice of Hart’s new conviction in February 2016. The parties filed cross motions for
summary judgment, which are ripe for disposition.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to enter, summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he plain language
of Rule 56[(a)] mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quotations omitted). In ruling on a
summary judgment motion, a court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the [summary judgment] motion.’” Scott v. Harris, 550
U.S. 372, 378 (2007) (quotation omitted). However, “[t]he non-moving party may not merely
deny the allegations in the moving party’s pleadings; instead he must show where in the record
there exists a genuine dispute over a material fact.” Doe v. Abington Friends Sch., 480 F.3d 252,
256 (3d Cir. 2007) (citation omitted). The movant is entitled to judgment as a matter of law when
the non-moving party fails to make such a showing. Dodson v. Coatesville Hosp. Corp., No. 18-
3065, --- Fed. App’x ----, 2019 WL 2338461, at *2 n.6 (3d Cir. June 3, 2019) (quotation omitted).
“When confronted with cross-motions for summary judgment ‘the court must rule on each party's
motion on an individual and separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard.’” Canal Ins. Co. v. Underwriters at Lloyd’s
London, 333 F. Supp. 2d 352, 353 n.1 (E.D. Pa. 2004), aff’d, 435 F.3d 431 (3d Cir. 2006).
III. ANALYSIS
A. Collateral Estoppel
Hart argues that the Commonwealth Court’s decision estops the Officers from arguing that
Hart received a timely revocation hearing. The res judicata effect of state court decisions in
Section 1983 actions is a matter of state law. See Heck v. Humphrey, 512 U.S. 477, 480 n. 2
(1994). Under Pennsylvania law, there are four essential elements of issue preclusion: (1) an issue
decided in a prior action is identical to the one presented in a later action; (2) the prior action
resulted in a final judgment on the merits; (3) the party against whom issue preclusion is asserted
was a party to the prior action; and (4) the party against whom issue preclusion is asserted had a
full and fair opportunity to litigate the issue in the prior action. Flood v. Schaefer, 754 F. App'x
130, 133 (3d Cir. 2018). The party asserting preclusion bears the burden of showing that it applies.
See Davis v. U.S. Steel Supply, 688 F.2d 166, 170 (3d Cir.1982) (en banc) (res judicata).
Here, res judicata does not apply for two reasons. First, the issue in this case is not the
same as the one that was before the Commonwealth Court. The Commonwealth Court determined
that—based on the record—the Board did not meet its burden of showing by a preponderance of
the evidence that the revocation hearing was timely. The Commonwealth Court did not examine
whether the hearing was actually untimely or whether Officer Tarrant lied at the hearing. In
contrast, Hart’s claims here deal with whether Officers Tarrant and Mackey violated his Due
Process and Eighth Amendment rights and whether Officer Tarrant made an intentional
misrepresentation—none of which the Commonwealth Court’s decision establishes. Second, the
parole officers were not parties to the prior case in their individual capacities. The Third Circuit
has indicated that a judgment against the government does not bind its officials in subsequent
litigation. Skunda v. Pennsylvania State Police, 47 F. App'x 69, 71 (3d Cir. 2002) (citing Smith v.
Holtz, 210 F.3d 186, 199–200 n. 18 (3d Cir.2000)). The Commonwealth Court case involved Hart
and the Board. Although Officer Tarrant appeared as a witness at the revocation proceedings and
was questioned by the hearing examiner, neither he nor Officer Mackey was a party to that case,
and neither of them was represented by counsel. Accordingly, they did not have a fair opportunity
to litigate the case and are not bound by its decision.
B. Untimely Revocation Hearing
Hart claims that Officers Tarrant and Mackey violated his Due Process and Eighth
Amendment Rights by holding an untimely revocation hearing in violation of 37 Pa. Code § 71.4.
Hart further asserts that Officer Tarrant intentionally misrepresented when he received official
verification of Hart’s new conviction at the revocation hearing in order to convince the hearing
examiner that the hearing was timely. Nevertheless, Hart provides no evidence to suggest that his
hearing was actually untimely, which is essential to each of his claims.
Although credibility determinations are reserved for the finder of fact, a party resisting a
summary judgment motion must produce “more than a mere scintilla of evidence” that his claims
bear legal merit in order to survive summary judgment. Harris v. Dow Chem. Co., 586 F. App'x
843, 845 (3d Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986)). Evidence that is “merely colorable or not significantly probative” is not
sufficient. Carpenter v. Proctor & Gamble Disability Benefit Plan & Benefit Plans Tr., 229 F.
App'x 170, 171 (3d Cir. 2007).
Here, Hart has not provided any evidence to show that the revocation hearing was untimely
and, thus, that there is a genuine issue of material fact. Hart references the Commonwealth Court’s
decision numerous times to indicate that his hearing was untimely; however, as mentioned above,
the Commonwealth Court did not find that the hearing was actually untimely or that Officer
Tarrant made false statements at the hearing. Rather, the Commonwealth Court held that the Board
had not met its burden of proving by a preponderance of the evidence that the hearing was timely,
in part because the Board could not rely on the PBPP-257C Form to support its finding that the
hearing was timely.
On the other hand, Officers Tarrant and Mackey have provided at least three pieces of
evidence to indicate that Officer Tarrant retrieved the official verification from the Court of
Common Pleas in person on February 19, 2016, and thus that the hearing was timely. First, the
parole officers rely on the Hearing Interview Planner, which is the Board’s web-based system for
requesting and scheduling hearings for offenders. Specifically, the parole officers note that the
Hearing Interview Planner for Hart has February 19, 2016, marked as the “Off. Verification Date.”
Second, the parole officers offer evidence in the form of a “Daily Supervision Report,” which
Officer Tarrant testified he fills out every week or so to reflect the work he did the previous week.
Officer Tarrant provides a Daily Supervision Report dated February 19, 2016, which states in the
“Other Activities/Completed Investigations/MISC Information” section “Acquired Hart 959 FG
Cert Philadelphia.” Third, the parole officers rely on the Board’s Criminal Arrest and Disposition
Report, which is a form that parole officers must fill out when a parolee is arrested with new
criminal charges and which continues to be updated by the agent in accordance with new
developments relating to those charges. The parole officers stress that the Board’s Criminal Arrest
and Disposition Report for Hart shows “02/19/2016” in the “Verification Date” field.
Hart does not offer any evidence that conflicts with or calls into question the authenticity
of these documents. Instead, Hart asserts only that the “records are typed, preprinted internal
documents created and maintained by Defendants with no indication as to when the information
was typed on the document or when the documents were created.” (ECF No. 26, P. 12). However,
Hart’s argument does not constitute evidence. And while Hart “need not match, item for item,
each piece of evidence proffered by the movant,” he must provide sufficient evidence to “exceed
the mere scintilla standard,” which he fails to do. Carpenter v. Proctor & Gamble Disability
Benefit Plan & Benefit Plans Tr., 229 F. App'x 170, 171 (3d Cir. 2007) (quoting Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.1993)).
Accordingly, because Hart has not put forth any evidence to show that the revocation hearing was
untimely, his Due Process, Eighth Amendment, and intentional misrepresentation claims cannot
survive summary judgment.
C. Qualified Immunity
Even if Hart had made a sufficient showing to establish a Due Process or Eighth
Amendment violation, Officers Tarrant and Mackey are entitled to qualified immunity. As parole
officers, Officers Tarrant and Mackey are shielded by qualified immunity “if it is shown that [their]
conduct did not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Donaldson v. Mugavero, 126 F. App'x 63, 65 (3d Cir. 2005)
(quotation omitted). The questions of whether a right was clearly established at the time of the
alleged violation and whether the officers acted reasonably under the circumstances are matters of
law for the Court to decide. Newland v. Reehorst, 328 F. App'x 788, 791 (3d Cir. 2009) (citation
omitted). “[T]he reasonableness inquiry considers not only whether the right at issue was clearly
established, but also whether a reasonable officer could have believed her conduct was lawful, in
light of the information she possessed at the time.” Newland v. Reehorst, 328 F. App'x 788, 791
(3d Cir. 2009) (citation omitted).
Officer Tarrant, who followed custom rather than internal policy in going to the
Philadelphia Court of Common Pleas to obtain official verification, had reason to believe his
conduct was lawful and would satisfy the requirements of 37 Pa. Code §71.4. In fact, the
Commonwealth Court stated that the Trial Disposition and Dismissal Form constituted official
verification pursuant to 37 Pa. Code § 61.1. Although Defendant Tarrant overlooked the fact that
the Trial Disposition and Dismissal Form was not date stamped, the Qualified Immunity standard
protects those who make mistaken judgments. See Shoffner v. Wenerowicz, No. CV 15-00392,
2016 WL 1660559, at *8 (E.D. Pa. Apr. 27, 2016) (quoting Egolf v. Witmer, 526 F.3d 104, 110–
11 (3d Cir. 2008)). Officer Tarrant’s actions were reasonable under the circumstances given the
information he had at the time. Likewise, Officer Mackey’s actions were also reasonable.
D. Sovereign Immunity
Officer Tarrant is entitled to sovereign immunity with respect to Hart’s intentional
misrepresentation claim. The Board is an arm of the Commonwealth, and its employees are subject
to sovereign immunity when acting within the scope of their duties. 1 Pa. Const. Stat. § 2310;
Clark v. Conahan, 737 F. Supp. 2d 239, 258 (M.D. Pa. 2010). These protections shield an
employee of a Commonwealth agency from the imposition of liability even for intentional torts.
Justice v. Lombardo, 208 A.3d 1057, 1066 (Pa. 2019). The Commonwealth of Pennsylvania has
waived immunity only for negligent acts in nine limited circumstances, none of which apply here.
42 Pa. C.S.A. § 8522 (b). Accordingly, Officer Tarrant is entitled to sovereign immunity if the
actions alleged against him were taken within the scope of his employment as a parole officer for
the Commonwealth of Pennsylvania. Spiker v. Allegheny Cty. Bd. of Prob. & Parole, 920 F. Supp.
2d 580, 610 (W.D. Pa. 2013), aff'd sub nom. Spiker v. Whittaker, 553 F. App'x 275 (3d Cir. 2014).
Under Pennsylvania law, an action falls within the scope of employment under the
following circumstances:
(1) it is the kind that the employee is employed to perform, (2) it occurs
substantially within the job's authorized time and space limits, (3) it is motivated
at least in part by a desire to serve the employer; and (4) if force was used by the
employee against another, the use of force is not unexpectable by the employer.
Id. The question of whether someone acted within the scope of his employment is generally one
of fact for the jury to decide; but the issue can be decided by the Court as a matter of law where
the facts and inferences drawn from them are not in dispute. Strothers v. Nassan, No. 08–1624,
2009 WL 976604, at *8 (W.D.Pa. Apr. 9, 2009); MFS, Inc. v. DiLazaro, 771 F. Supp. 2d 382, 456
(E.D. Pa. 2011), aff'd, 476 F. App'x 282 (3d Cir. 2012).
Here, there is no material dispute that Officer Tarrant was acting within the scope of his
employment when he testified at Hart’s revocation hearing. As mentioned above, while Hart
contends that Officer Tarrant made false statements at the revocation hearing about receiving
official verification in February 2016, Hart presents no evidence to substantiate his claim.
Accordingly, Officer Tarrant is entitled to sovereign immunity.
IV. CONCLUSION
For the foregoing reasons, the Court grants Defendants’ summary judgment motion with
respect to Hart’s Section 1983 claims, as well as his claim for intentional misrepresentation. An
appropriate Order follows.
BY THE COURT:
/s/ Joshua D. Wolson
JOSHUA D. WOLSON, J.
Dated: October 30, 2019