WYATT v. DEPARTMENT OF PROBATION AND PAROLE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

ROY WYATT and DONTE MCNEIL, :

Plaintiffs, :

:

v. : No. 19-cv-5460

:

DEPARTMENT OF :

PROBATION AND PAROLE, et al., :

Defendants. :

MEMORANDUM

Joseph F. Leeson, Jr. May 8, 2020

United States District Judge

Plaintiffs Roy Wyatt and Donte McNeil, proceeding pro se, bring this civil rights action

pursuant to 42 U.S.C. § 1983, against the Department of Probation and Parole, John Wetzel

(Secretary of Department of Corrections) and Agent Garner (Parole Agent). Each Defendant is

sued in their individual and official capacities. Plaintiffs have also filed a Motion for

Appointment of Counsel (ECF No. 9) and Wyatt has filed a Declaration in Support of

Preliminary Injunction and TRO.1 (ECF No. 16.) For the following reasons, the Court will

dismiss their Complaint in part with prejudice for failure to state a claim, deny the request for

appointment of an attorney at this time, and deny Plaintiffs’ request for issuance of a preliminary

injunction and/or temporary restraining order.

1 The Declaration seeks relief on behalf of Wyatt, and it is signed only by Wyatt. (ECF NO. 16

at 15.)

I. FACTUAL ALLEGATIONS

Wyatt and McNeil filed this matter based on events which took place while they were

confined as technical parole violators at SCI-Phoenix. (ECF No. 2 at 2, 4, 14, 16.)2 According

to the Pennsylvania Department of Corrections Inmate/Parolee Locator, both Wyatt (Parole No.

724AD) and McNeil (Parole No. 697IA) have been released from SCI-Phoenix, and they are

both currently on parole. See Pennsylvania Department of Corrections (“DOC”), Parolee

Locator (Parolee Nos. “724AD” (Wyatt) and “697IA” (McNeil); http://inmatelocator.cor.pa.gov

(last visited May 5, 2020). See generally Fed. R. Evid. 201; Bracey v. Rendell, Civ. A. No. 11-

217E, 2012 WL 226871, at *1 n.1 (W.D. Pa. Jan. 25, 2012) (taking judicial notice of DOC

inmate locator).

The Complaint avers that on September 13, 2019, Wyatt received a phone call from

Agent Garner advising Wyatt that Garner would be visiting him at his home. (ECF No. 2 at 16.)

Wyatt avers that minutes later, he was arrested by Garner without reason and taken to the parole

office located in Philadelphia. (Id.; see also ECF No. 16 at 5.) At the parole office, Garner

informed Wyatt that someone had called the parole hotline and made an assault allegation

against him. (ECF No. 2 at 16-17; ECF No. 16 at 5.) Garner allegedly told Wyatt that he had

“no rights in this matter and that he [would] have to be placed back in prison regardless because

it is the departments [sic] policy.” (ECF No. 2 at 20.) Wyatt asserts he was arrested on false

allegations and Garner ignored the falsity of the allegations and failed to complete an

investigation. (Id. 20-21.) He avers that he was “arrested and placed back into prison without

any due process rights or equal protection of the law,” and the Department of Probation and

Parole, through its agents, are arresting parolees on “false trumped up charges.” (Id. at 17, 20.)

2 The Court adopts the pagination assigned to the Complaint by the CM/ECF system.

When questioned by Garner as to whether he was taking his prescribed mental health

medications, Wyatt responded that the medication “Abilify” was making him sick so he stopped

taking it, explaining to Garner that he had a “14th Amendment right to refuse medications absent

a court order.” (Id. at 17.) Wyatt avers that the refusal to take his mental health medications was

“one of the reasons [why] he was placed back in prison” and asserts “just like hundreds of other

parolees on parole,” he was placed in handcuffs and taken to SCI-Phoenix, “a supermax level 5

deathrow prison for refusing medication absent a court order.” (Id. at 17, 18.) The Complaint

further avers that Wyatt discussed this issue with the mental health staff at the prison, and the

staff took him off of all of his medications, and “instructed him to file [an] action against the

Parole department.” (Id. at 19.) The Complaint alleges that “there are hundreds of other

Technical Parolees who are placed in prison as a punishment at the hands of the defendants

creating policy that infringe upon the rights of Parolees to refuse [medications] absent a court

order or placed in prison for simply having a mental illness that the defendants agent [doesn’t]

understand.” (Id.)

The Complaint further avers that “[p]laintiff like hundreds of other technical parolees”

was housed in a solitary confinement unit due to overcrowding. (Id. at 17.) The Complaint

asserts that “[p]laintiffs and other parolees [were] denied yard for weeks” and “denied mental

health out of cell programming.” (Id. at 18.) Wyatt alleges that he was housed in cells with very

little to no light coming through the cell windows, was served cold food in insufficient portions,

and had no bedding. (Id. at 18.) The Complaint also avers that “the defendant allowed the

housing of seriously mentally ill prisoners to be housed in cells with other Parolees [who were]

detoxing off of dangerous drugs” which allegedly caused “mentally ill parolees [to be] violently

assaulted by the detoxing parolee.” (Id.) Wyatt avers that on September 23, 2019, he requested

a grievance, but was denied and allegedly told by Officer John Doe “that if he file[s] a grievance

he is going to make sure that his parole get[s] revoked.” (Id.)

Finally, the Complaint asserts that “Bill 100 Act 122” precludes the Department of Parole

and Probation from bringing parolees back to state prison on minor technical parole violations.

(Id. at 21.) Wyatt and McNeil contend that Wetzel and the Department of Parole and Probation

have failed to comply with the directives of Act 122 by alleging that they should have been

“diverted to one of the 3 less punitive options than return to a SCI.” (Id.)

The Complaint asserts the following due process violation claims:

• Garner and the Pennsylvania Department of Parole and Probation arrested Wyatt and

McNeil and placed them in a super max level 5 state prison with deathrow inmates

under a false report without any investigation or evidence to support the false

allegations.

• After receiving sworn documents that the allegations against Wyatt and McNeil were

false, Garner and the Pennsylvania Department of Parole and Probation denied them

an immediate speedy hearing to correct the wrongful imprisonment.

• Garner and the Pennsylvania Department of Parole and Probation placed Wyatt in a

state prison for months for refusing to take mental health medications and Wyatt was

denied a hearing regarding the condition that he take the medication.

• Garner, Wetzel, and the Department of Parole and Probation created and enforced

policy, special conditions, or rules that infringed upon Wyatt’s right to refuse

unwanted medications.

• Wetzel and the Department of Parole and Probation created policy and rules allowing

for false allegations to be filed against Wyatt, McNeil and thousands of other parolees

which resulted in those parolees being placed back in prison without any investigation

or evidence to support false allegations.

• Wetzel and the Department of Parole and Probation have no way to compensate

Wyatt, McNeil, and thousands of other parolees who sit in prison for months fighting

false allegations. Plaintiffs aver that they lost everything and that Defendants’

policies forces Plaintiffs and their families into poverty and homelessness.

• Wetzel and the Department of Parole and Probation violated Wyatt, McNeil and

thousands of other technical parole violators due process rights when they placed

them back in prison without judicial oversight in violation of Bill 100 Act 122 that

states that technical parole violators should only be diverted to Community

Correctional Centers, Parole Violator Centers, County Contracted Jails, or ankle

monitors. The Defendants’ actions led to overcrowding and violations of plaintiffs’

constitutional rights.

(Id. at 22-23.)

The Complaint further alleges an equal protection violation. (Id. at 23.) Specifically, the

Complaint avers that Wetzel and the Department of Parole and Probation are not applying Act

122 to Plaintiffs and other technical parole violators as the law instructs them to do. (Id.) Wyatt

and McNeil assert that Defendants placed them in prison as a means of punishment to get around

the implication of Act 122. (Id.)

The Complaint also alleges cruel and unusual punishment. (Id.) Specifically, the

Complaint alleges that Wyatt was impermissibly placed in a super max level 5 deathrow prison

for refusing to take medications absent a judge order. (Id.) Wyatt was allegedly subjected to

cold cells, cold meals, and lack of mental health programs. (Id.) Wyatt avers that he became

very depressed and was denied the opportunity to see mental health staff. (Id.)

Wyatt and McNeil seek punitive damages against each Defendant as well as

compensatory damages and injunctive relief. (Id. at 15, 25.) Plaintiffs aver that they are entitled

to compensatory damages for their financial loss, psychological, mental and emotional injuries.

(Id. at 25.) Finally, Wyatt and McNeil seek injunctive relief requiring Defendants “to adhere to

the act 122 and to . . . implement the law as it is written and to immediately stop placing

[t]echnical parole violators back in the prison system.” (Id.) Plaintiffs seek an order directing

Defendants “to stop placing parolees back into prison for executing their right to refuse

medications” as well as an “injunction against the defendants to not retaliate, harass the plaintiffs

in this action, their family, friends and loved ones for filing this action.” (Id. at 25.)

On February 27, 2020, Plaintiff Wyatt filed a Declaration in Support of Preliminary

Injunction and TRO.3 (ECF No. 16.) In so doing, Wyatt seeks relief against the Department of

Probation and Parole, Agent Rosario, Agent Garner, Scott A. Wolf, and all of their supervisors.

(Id. at 3.) More specifically, Wyatt seeks an order restraining the foregoing individuals from

“retaliating against [him] and denying the reunification with his loved ones by denying his home

plan.” (Id.) Wyatt also seeks relief in the form of restraining “Agent Rosario from having any

3 In his Declaration, Wyatt provides additional factual information with respect to his parole

violation. More specifically, Wyatt avers that he had a parole violation hearing on November 13,

2019. (ECF No. 16 at 5.) Although Wyatt asserts that Garner had requested that the charges

against him be dismissed, Wyatt received a guilty verdict from the Department of Probation and

Parole on December 10, 2019. (Id. at 5-6.) The verdict information received from the

Department of Probation and Parole also indicated that Wyatt was “considered a threat to the

safety of the community.” (Id. at 6.) On December 12, 2019, Wyatt was transferred to the

Kintock Group halfway house. (Id.)

contact with [him] and his wife, friends or any plaintiff now or in the future who will be or who

are currently apart [sic] of this 1983 Civil Rights Action.” (Id.)

II. STANDARD OF REVIEW

The Court granted Wyatt and McNeil leave to proceed in forma pauperis because it

appeared that they were both incapable of paying the fees to commence this civil action.4 (ECF

No. 15.) Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss

the Complaint if it is frivolous or it fails to state a claim. A complaint is frivolous under §

1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or in fact,” Neitzke v. Williams, 490

U.S. 319, 325 (1989), and is legally baseless if it is “based on an indisputably meritless legal

theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). Whether a complaint fails

to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions

to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184

F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint

contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory

allegations do not suffice. Id. As Wyatt and McNeil are proceeding pro se, the Court construes

their allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

4 However, as Wyatt and McNeil were prisoners at the time of filing this matter, they were

advised that they would be obligated to pay the filing fee in installments in accordance with the

Prison Litigation Reform Act. See 28 U.S.C. § 1915(b); ECF No. 15.

“A defendant in a civil rights action must have personal involvement in the alleged wrongs.” See

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each

defendant in the alleged constitutional violation is a required element and a plaintiff must allege

how each defendant was involved in the events and occurrences giving rise to the claims).

Indeed, “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676.

A. Claims on Behalf of Others

It is unclear to the Court whether Wyatt and McNeil are attempting to assert claims on

behalf of others by including language in the Complaint referring to “hundreds of other parolees

on parole.” (ECF No. 2 at 17-19.) For example, the Complaint avers that “Plaintiff like

hundreds of other technical parolees was house[d] in a solitary confinement unit (RHU) due to

over crowding” and “Plaintiffs and other parolees [were] denied yard for weeks . . . hundreds of

other parolees [were] denied mental health out of cell programming.” (Id. at 17-18.)

“Although an individual may represent herself or himself pro se, a non-attorney may not

represent other parties in federal court.” Murray on behalf of Purnell v. City of Philadelphia,

901 F.3d 169, 170 (3d Cir. 2018); see also 28 U.S.C. § 1654; Twp. of Lyndhurst, N.J. v.

Priceline.com, Inc., 657 F.3d 148, 154 (3d Cir. 2011) (“[A] plaintiff must assert his or her own

legal interests rather than those of a third party” to have standing to bring a claim. (quotations

omitted)); Osei-Afriyie ex rel. Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.

1991) (a pro se litigant who is not an attorney may not pursue claims on behalf of anyone other

than himself). Accordingly, any claims made by Wyatt and McNeil on behalf of others will be

dismissed with prejudice. Similarly, to the extent they intended to pursue this case as a class

action, which is not clear, “pro se litigants are generally not appropriate as class representatives.”

Hagan v. Rogers, 570 F.3d 146, 155-56 (3d Cir. 2009); Lewis v. City of Trenton Police Dep't,

175 F. App'x 552, 554 (3d Cir. 2006) (per curiam) (“Lewis, who is proceeding pro se, may not

represent a putative class of prisoners.”).

B. Claims for Injunctive Relief

All of the claims in the Complaint pertain to Wyatt and McNeil’s confinement at SCI-

Phoenix. However, both Wyatt and McNeil are currently on parole, having been released from

SCI-Phoenix. See Pennsylvania Department of Corrections, Parolee Locator (Parolee Nos.

“724AD” (Wyatt) and “697IA” (McNeil)); http://inmatelocator.cor.pa.gov (last visited May 5,

2020). “An inmate’s transfer from the facility complained of generally moots the equitable and

declaratory claims.” Crawford v. McMillan, 660 F. App’x 113, 115 (3d Cir. 2016) (citing Abdul-

Akbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993) (finding prisoner’s transfer or release from

prison moots claims for injunctive or declaratory relief as prisoner no longer subject to allegedly

unconstitutional conditions)). Accordingly, any claims for injunctive relief are dismissed as

moot.

C. Claims Against the Pennsylvania Department of Probation and Parole

The Pennsylvania Board of Probation and Parole is immune from suit under the Eleventh

Amendment. See Spuck v. Pa. Bd. of Prob. and Parole, 563 F. App’x 156, 158 (3d Cir. 2014)

(per curiam) (“As the District Court correctly determined, the Eleventh Amendment affords the

[Pennsylvania Board of Probation and Parole] protection from suit in an action brought pursuant

to 42 U.S.C. § 1983” (citing Harper v. Jeffries, 808 F.2d 281, 284 n.4 (3d Cir. 1986))).

Furthermore, even if the Eleventh Amendment did not bar these claims, the Board of Probation

and Parole is also not a “‘person’ within the meaning of section 1983.” Fenton v. Pennsylvania

Dep’t of Corr., Civ. A. No. 18-5484, 2019 WL 398929, at *4 (E.D. Pa. Jan. 31, 2019) (citing

Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977)). Accordingly, Wyatt and McNeil cannot

maintain their section 1983 claims against the Pennsylvania Department of Probation and Parole.

D. Official Capacity Claims

As indicated by the Complaint, Wetzel and Garner are each being sued in their official

capacities. (ECF No. 2 at 2-3, 16.) Wetzel and Garner, in their official capacities, are also

entitled to Eleventh Amendment immunity. Official-capacity suits are “only another way of

pleading an action against an entity of which an officer is an agent.” Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). In an official-capacity suit, the entity

of which the officer is an agent is the real party in interest. Kentucky v. Graham, 473 U.S. 159,

166 (1985). As Garner is an employee of the Pennsylvania Department of Probation and Parole,

and Wetzel is an employee of the Pennsylvania Department of Corrections,5 the claims against

each of them in their official capacities are really claims against the Commonwealth and, as

such, are barred by the Eleventh Amendment.6 Accordingly, the claims against Wetzel and

Garner in their official capacities are dismissed with prejudice.

5 Although not specifically named as a defendant in this matter, the Pennsylvania Department of

Corrections “shares in the Commonwealth [of Pennsylvania’s] Eleventh Amendment

immunity.” Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000); Dickerson v. SCI

Graterford, 453 F. App’x 134, 137 (3d Cir. 2011) (per curiam).

6 Although official capacity claims requesting prospective injunctive relief are not barred by the

Eleventh Amendment, see J.C. v. Ford, 674 F. App’x 230, 232 (3d Cir. 2016) (citing Ex parte

Young, 209 U.S. 123 (1908)), as discussed more fully above, all claims for injunctive relief in

this matter have been dismissed as moot because both Wyatt and McNeil have been released

from SCI-Phoenix.

E. Claims Based on Grievances

In their Complaint, Wyatt and McNeil express dissatisfaction with the grievance process.

(ECF No. 2 at 18.) “Prison inmates do not have a constitutionally protected right to a grievance

process.” Jackson v. Gordon, 145 F. App’x 774, 777 (3d Cir. 2005) (per curiam); see also

Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir. 2009) (per curiam). Because there is no right

to a grievance process at all, a claim under § 1983 based on the mishandling of a grievance

cannot be plausible. Accordingly, any claims based on grievances are dismissed with prejudice

under § 1915(e)(2)(B)(ii).

F. Due Process Claims

Based on the factual allegations set forth in the Complaint, it appears that the § 1983

claims against Garner primarily concern assertions that Wyatt was arrested on the basis of false

allegations and an allegedly improper reason, i.e. Wyatt’s refusal to take mental health

medications. (ECF No. 2 at 18-21.) Wyatt avers that he was “arrested and placed back into

prison without any due process rights or equal protection of the law,” and the Department of

Probation and Parole, through its agents, are arresting parolees on “false trumped up charges.”

(Id. at 17, 20.) Although there do not appear to be any factual allegations on the part of McNeil

against Garner, the Complaint asserts a claim for relief that “Garner and the Pa Department of

Parole and Probation had plaintiff Wyatt and McNeil arrested and placed [them] in a super max

level 5 . . . under a false report . . . without anything to [support] the false allegations.” (Id. at

22.) Accordingly, it appears that McNeil’s claim is also based on false allegations.

The favorable termination rule bars all of Plaintiffs’ due process claims. Under the

favorable termination rule, a Section 1983 claim may not be used to challenge “the fact or

duration” of a plaintiff’s confinement. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.

2006) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (when a state prisoner is

challenging the fact or duration of his confinement, his sole federal remedy is a writ of habeas

corpus, not a § 1983 action)). More specifically, “a harm caused by actions whose unlawfulness

would render a conviction or sentence invalid” is not cognizable under Section 1983 unless that

conviction or sentence was “reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such a determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87

(1994). The United States Court of Appeals for the Third Circuit has interpreted Heck to mean

that “a § 1983 action that impugns the validity of the plaintiff’s underlying conviction cannot be

maintained unless the conviction has been reversed on direct appeal or impaired by collateral

proceedings.” Gilles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005). If the success of Plaintiffs’

Section 1983 claim necessarily requires a finding regarding the “invalidity of the Parole Board’s

decision to revoke [] parole,” the claim fails. Williams, 453 F.3d at 177;7 Burton v. Delaware

Cty. Court House, Civ. A. No. 12-4175, 2012 WL 3223691, at *2 (E.D. Pa. Aug. 7, 2012) (the

doctrine set forth in Heck has been extended to civil rights cases challenging parole and

probation revocations).8

7 In Williams, the plaintiff instituted a § 1983 action against his parole officer following the

revocation of his parole, alleging the officer “seized him without probable cause and caused him

to be arrested and falsely incarcerated.” 453 F.3d at 176. The parole officer arrested plaintiff for

technical violations of his parole including his failure to obtain approval to change his

employment and residence. 453 F.3d at 175. The United States Court of Appeals for the Third

Circuit affirmed the district court’s dismissal of the case because a finding for plaintiff on his §

1983 claims against the parole officer would necessarily demonstrate the invalidity of the

revocation decision, which had not been rendered invalid. 453 F.3d at 177.

8 See McKinney v. Pennsylvania Bd. of Prob. & Parole, 405 Fed. Appx. 646, 647 (3d Cir. 2010)

(holding that McKinney’s claims that he had been imprisoned beyond the maximum terms of his

sentences for state convictions and parole violations and that the defendants violated his rights by

Plaintiffs’ Section 1983 claim regarding the use of false or improper allegations as

evidence fails because it would “necessarily demonstrate the invalidity of the Parole Board’s

decision to revoke [their] parole.” Id. The Complaint avers that false allegations were filed

against Wyatt and McNeil, which resulted in them being placed back into prison. Plaintiffs,

however, do not allege that the Board’s decision has been favorably terminated or rendered

invalid.9 See McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (Heck applied to litigant’s

claims “asserting that fabricated evidence was used to pursue a criminal judgment”); Curry v.

Yachera, 835 F.3d 373, 378-79 (3d Cir. 2016) (holding that plaintiff’s failure to allege that his

conviction was declared invalid warranted dismissal of his Section 1983 claim); see also Brown

v. City of Phila., 339 Fed. Appx. 143, 145 (3d Cir. 2009) (noting that a Section 1983 claim

“based on an allegedly unconstitutional conviction or sentence does not accrue until the

invalidation of that conviction or sentence.”); White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997)

(concluding that § 1983 claim based on revocation of parole was barred by Heck; “[a] favorable

incorrectly calculating his maximum sentence and by failing to conduct a parole revocation or

parole hearing when they revoked his parole and continued to detain him were barred by Heck

“because success on his claims would necessarily imply the invalidity of the fact and the

duration of his state confinement, which have not been elsewhere invalidated”); Connolly v.

Arroyo, 293 Fed. Appx. 175, 177–78 (3d Cir. 2008) (holding that Connolly’s claims relating to

the parole-revocation process, including a claim that he was denied a timely revocation hearing,

were barred by Heck); Hess v. Chronister, 247 Fed. Appx. 377, 380 (3d Cir. 2007) (concluding

that Hess’s claims that the defendants conspired to violate his rights by holding him on a detainer

without notifying him of the charges against him or holding a parole-revocation hearing were

barred by Heck because success on Hess’s claims would necessarily imply that his confinement

was invalid); Worthy v. N.J. State Parole Board, 184 Fed. Appx. 262, 264 & 266 (3d Cir. 2006)

(affirming dismissal on the basis of Heck of claims arising from parole revocation proceedings

for damages and declaratory relief including a claim that the defendants did not hold a final

revocation hearing).

9 In fact, the Declaration in Support of a Preliminary Injunction and TRO indicates that Wyatt

received a guilty verdict from the Department of Probation and Parole on December 10, 2019.

(ECF No. 16 at 6.)

decision in the § 1983 proceeding would necessarily call into question the validity of the state’s

decree revoking [plaintiff’s] parole and ordering him back to prison. Heck therefore applies, and

the § 1983 action is not cognizable in a federal court”). Plaintiffs’ Section 1983 claim

improperly challenges the fact of their confinement based on allegedly defective parole

revocation procedures, when the proper vehicle is a petition for writ of habeas corpus. Williams,

453 F.3d at 177; see also Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (“Few things

implicate the validity of continued confinement more directly than the allegedly improper denial

of parole.”).

Accordingly, because the Parole Board’s decision has not been rendered invalid, Wyatt

and McNeil may not attack it via a § 1983 action. See Williams, 453 F.3d at 177. All of

Plaintiffs’ due process claims under Section 1983 regarding the parole revocation proceedings

shall be denied without prejudice to refiling if either of their parole revocations are ultimately

invalidated. See Brown, 339 Fed. Appx. at 145-46 (3d Cir. 2009) (holding that a Section 1983

claim dismissed under the favorable termination rule should be done without prejudice).

G. Claims Regarding “Act 122”

Plaintiffs aver that “Wetzel and the Department of Parole and Probation violated . . . Bill

100 Act 122 that states that technical parole violators should only be diverted to Community

Correctional Centers, Parole Violator Centers, County Contracted Jails, or ankle monitors.”

(ECF No. 2 at 23.)

Senate Bill 100, known as Act 122 of 2012, was passed and was signed into law on July

5, 2012. See Gerber v. Campbell, Civ. A. No. 14-674, 2015 WL 3952765, at *12 (M.D. Pa. June

18, 2015) (citing Barge v. Pennsylvania Bd. of Prob. & Parole, 96 A.3d 360, 361 (Pa. 2014)).

Among other matters, the Act amended Title 61 of the Pennsylvania Consolidated Statutes

(Prisons and Parole) to allow technical violators, under certain conditions, to be detained and

recommitted to a community corrections center or a community corrections facility. The precise

statute at issue here is 61 Pa.C.S.A. § 6138(c), which provides, in pertinent part, as follows:

(c) Technical violators.--

(1) Subject to paragraph (1.3), a parolee under the jurisdiction of the board

who violates the terms and conditions of his parole . . . may be detained

pending a hearing before the board or waiver of the hearing or

recommitted after a hearing before the board or a waiver of the hearing.

Detention and recommitment under this paragraph shall be in a

community corrections center, community corrections facility or any

secured facility operated or contracted by the department.

. . .

(1.2) Notwithstanding paragraph (1) and subject to paragraph (1.3), a

parolee under the jurisdiction of the board who violates the terms and

conditions of his parole, other than a convicted violator who has parole

revoked under subsection (a), may be arrested and detained without

revocation of parole under a program to impose swift, predictable and

brief sanctions. The program shall provide for immediate detention in a

community corrections center, community corrections facility or any

secured facility operated or contracted by the department for a period not

to exceed seven days. The board shall adopt procedures governing

appropriate detention under this paragraph, including identifying which

offenders are eligible for the program and providing warnings to parolees

to clearly communicate expectations and consequences.

(1.3) If the board determines that one of the following conditions is

present regarding a parolee who violates the terms and conditions of

parole, the parolee shall not be eligible for detention under paragraph (1.2)

and shall be detained in or recommitted to a State correctional

institution or contracted county jail:

. . .

(ii) The violation involved assaultive behavior or included a credible

threat to cause bodily injury to another.

. . .

(v) There exists an identifiable threat to public safety, and the parolee

cannot be safely diverted to a community corrections center, community

corrections facility or any secured facility operated or contracted by the

department. . ..

61 Pa. Stat. and Cons. Stat. Ann. § 6138 (West) (bolded emphasis added).

Wyatt asserts in his Complaint that he was arrested by Garner on a “false” allegation of

assault. (ECF No. 2 at 16-17, 22-23; ECF No. 16 at 5.) Further, according to the information

supplied by Wyatt in his Declaration, Wyatt received a guilty verdict from the Department of

Probation and Parole which indicated that he was “considered a threat to the safety of the

community.” (ECF No. 16 at 6.) Based on this information, it appears to the Court that the

Board of Probation and Parole was justified in recommitting Wyatt to a state correctional

institution, namely SCI-Phoenix. 61 Pa.C.S.A. § 6138(c)(1.3)(ii) and (v). Accordingly, based on

the information as to Wyatt, his claim that Wetzel and the Department of Parole and Probation

violated Act 122, is not plausible. As for McNeil, because this Court lacks information

concerning the details of his recommitment at this time, his claim is not plausible.10

Regardless, even if this Court were to assume that the statute at issue was violated, a

violation of state law generally does not equate to a federal constitutional violation. See Maple

Properties, Inc. v. Twp. of Upper Providence, 151 F. App’x 174, 179 (3d Cir. 2005) (quoting

Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 468-69 (7th Cir. 1988)

10 The allegations concerning McNeil’s recommitment are vague. McNeil avers that he was

incarcerated on a “false complaint” (ECF No. 2 at 19), but the Court has no further information

regarding the specific facts and circumstances of his case. On this basis alone, this claim is not

plausible. A complaint may be dismissed for failing to comply with Federal Rule of Civil

Procedure 8. Garrett v. Wexford Health, 938 F.3d 69, 91 (3d Cir. 2019). To conform to Rule 8,

a pleading must contain a short and plain statement showing that the plaintiff is entitled to relief.

See Travaline v. U.S. Supreme Court, 424 F. App’x 78, 79 (3d Cir. 2011). The Third Circuit

recently explained that in determining whether a pleading meets Rule 8’s “plain” statement

requirement, the Court should “ask whether, liberally construed, a pleading ‘identifies discrete

defendants and the actions taken by these defendants’ in regard to the plaintiff’s claims.”

Garrett, 938 F.3d at 93 (citation omitted).

(“violation of state law is not a denial of due process of law”)). Moreover, to the extent Plaintiffs

assert a constitutional violation because they were housed at a state facility, the Court notes that

“an inmate does not have the right to ‘be placed in any particular prison.’” Chavarriaga v. New

Jersey Dep't of Corr., 806 F.3d 210, 225 (3d Cir. 2015) (quoting Meachum v. Fano, 427 U.S.

215, 224 (1976)). Furthermore, for the reasons provided below, Plaintiffs have not set forth a

plausible equal protection claim.

With respect to the assertion of an equal protection violation, the Complaint avers that

Wetzel and the Department of Parole and Probation are not applying Act 122 to Plaintiffs and

other technical parole violators as the law instructs them to do. (ECF No. 2 at 23.) (Id.) Wyatt

and McNeil assert that Defendants placed them in prison as a means of punishment to get around

the implication of Act 122. (Id.)

To state a claim for equal protection, a plaintiff must allege facts showing that he

received different treatment than others similarly situated and that the treatment was due to

membership in a protected class. See Faruq v. McCollum, 545 F. App’x 84, 87 (3d Cir. 2013)

(“To state a claim for race- or religion-based discrimination, [plaintiff] needed to show

specifically that he received different treatment from that received by other similarly situated

inmates.” (citing Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)). “[T]o state a claim for

‘class of one’ equal protection, a plaintiff must at a minimum allege that he was intentionally

treated differently from others similarly situated by the defendant and that there was no rational

basis for such treatment.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).

Plaintiffs’ conclusory allegation, which forms the sole basis for their equal protection

claim, amounts to nothing more than a formulaic recitation of the elements of an equal protection

claim. Plaintiffs have not alleged any specific facts demonstrating how Wetzel purposely

discriminated against them. Nor have Plaintiffs alleged any specific facts regarding who would

be considered similarly situated parties nor have they alleged that they were the only inmates to

have been subjected to inappropriate treatment. Thus, the Complaint does not state an equal

protection claim. See Perano v. Twp. Of Tilden, 423 F. App’x 234, 238–39 (3d Cir. 2011)

(“Without more specific factual allegations as to the allegedly similarly situated parties, he has

not made plausible the conclusion that those parties exist and that they are like him in all relevant

aspects.”); Carson v. Mulvihill, 488 F. App’x 554, 563 (3d Cir. 2012) (finding equal protection

claim not pled where plaintiff failed to “allege facts showing that he was similarly situated to the

inmates who received wheelchair footrests, crutches and canes, or that there was no rational basis

for his different treatment”).

H. Eighth Amendment Claims11

The Complaint avers that Plaintiffs were housed in a solitary confinement unit due to

overcrowding. (ECF No. 2 at 17.) The Complaint further asserts that “[p]laintiffs and other

parolees [were] denied yard for weeks” and “denied mental health out of cell programming.”

(Id. at 18.) Specifically, Wyatt alleges that he was housed in cells with very little to no light

coming through the cell windows, was served cold food in insufficient portions, and had no

bedding. (Id. at 18.) The Complaint also avers that “the defendant allowed the housing of

seriously mentally ill prisoners to be housed in cells with other Parolees [who were] detoxing off

11 “[T]he favorable termination rule does not apply to claims that implicate only the conditions,

and not the fact or duration, of a prisoner’s incarceration.” Torres v. Fauver, 292 F.3d 141, 143

(3d Cir. 2002). Wyatt and McNeil’s claims about being denied recreation, confined in the

solitary unit, served cold food or inadequate meals, or claims related to inadequate lighting and

bedding, implicate only the conditions of their confinement and are not subject to the favorable-

termination rule of Heck.

of dangerous drugs” which allegedly caused “mentally ill parolees [to be] violently assaulted by

the detoxing parolee.” (Id.)

The Eighth Amendment governs claims brought by convicted inmates challenging their

conditions of confinement, while the Due Process Clause of the Fourteenth Amendment governs

claims brought by pretrial detainees. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005). As it

appears from the Complaint that Wyatt and McNeil are technical parole violators who were

previously convicted prisoners, their conditions of confinement claim is properly analyzed under

the Eighth Amendment.

To establish an Eighth Amendment violation based on conditions of confinement, a

prisoner must establish that prison officials’ acts or omissions denied him “the minimal civilized

measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Betts v. New

Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (stating that the Eighth Amendment’s

prohibition of cruel and unusual punishment requires that prison officials provide “humane

conditions of confinement.”). Such necessities include food, clothing, shelter, medical care and

reasonable safety. Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). A

prisoner must also establish that the defendants acted with deliberate indifference. Farmer, 511

U.S. at 835.

The Complaint fails to state an Eighth Amendment claim upon which relief can be

granted based on the allegations of placement in the solitary confinement unit. “[S]olitary

confinement is not per se violative of the Eighth Amendment.” Dixon v. Larson, Civ. A. No. 15-

00425, 2016 WL 749234, at *5 (M.D. Pa. Feb. 23, 2016) (citing Green v. Coleman, 575 Fed.

Appx. 44, 47 (3d Cir. 2014) (affirming dismissal of Eighth Amendment claim of prisoner who

alleged that he had been in solitary confinement since October 2009, and that it was causing him

psychological distress but who did not allege he was deprived of basic needs); see also Griffin v.

Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (administrative segregation for fifteen months found

not to violated the Eighth Amendment). Plaintiffs’ conclusory allegations regarding placement

in the solitary confinement unit fail to indicate the length of time spent in that unit, and the

allegations fail to demonstrate that Plaintiffs were deprived of their basic needs as a result of

being placed in that particular unit.

Plaintiffs’ allegations about cold food in small portions do not set forth a plausible claim.

A constitutionally adequate diet “must provide adequate nutrition, but corrections officials may

not be held liable [as to claims of inadequate food] unless the inmate shows both an objective

component (that the deprivation was sufficiently serious) and a subjective component (that the

officials acted with a sufficiently culpable state of mind).” Duran v. Merline, 923 F. Supp. 2d

702, 719-20 (D.N.J. 2013) (citing Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) and

Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Objectively, “[w]hether the deprivation of food falls

below this [constitutional] threshold depends on the amount and duration of the deprivation.” Id

at 720 (citing Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)). “Under the Eighth

Amendment, which provides a floor for the rights of pretrial detainees, see Natale v. Camden

Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003), inmates must be served ‘nutritionally

adequate food that is prepared and served under conditions which do not present an immediate

danger’ to their health and well-being.” Duran, 923 F. Supp. 2d at 720 (citing Robles v.

Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (quoting Ramons v. Lamm, 639 F.2d 559, 571 (10th

Cir. 1980)); Mora v. Camden Cty., Civ. A. No. 09-4183, 2010 WL 2560680, at *8 (D.N.J. June

21, 2010)).

The sparse allegations in the Complaint do not satisfy the objective requirement.

“[I]solated instances of contaminated or spoiled food, while certainly unpleasant, are not

unconstitutional.” Duran, 923 F. Supp.2d at 720 (“Being served cold meals . . . is not

‘punishment’ under Bell. So long as the food is nutritionally adequate, the mere fact that it is

unvaried or cold does not give rise to a constitutional violation . . . .”) (citing Nickles v. Taylor,

Civ. A. Nos. 09-313, 09-557, 09-952, 2010 WL 1949447, at *5 (D.N.J. May 14, 2010) (“A

single or occasional incident involving spoiled food is insufficient to show that Plaintiff has been

denied life’s necessities.”). Plaintiffs do not allege that they were malnourished, that others

became ill due to systemic problems with inadequate or spoiled food, or that a significant portion

of their diet consisted of such food.

Plaintiffs have also failed to allege the subjective component of the Stevenson test. The

test for deliberate indifference is “subjective recklessness” as that concept is understood in

criminal law. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994). Plaintiffs have not offered

any facts from which a court could reasonably infer deliberate indifference by anyone at SCI-

Phoenix with respect to food quality or to the minimum requirements of providing a non-harmful

diet based on the allegations in the Complaint. Without any allegation necessary to demonstrate

substantial nutritional deprivation on a recurring basis or subjective recklessness, the claims are

implausible for this additional reason.

With regard to exercise, it appears that Plaintiffs allege a reduction in the recreation

schedule as opposed to a complete elimination of exercise for inmates. While the denial of

exercise may, in certain instances, rise to the level of an Eighth Amendment violation, Plaintiffs

have not provided any specific factual allegations about the conditions to which they were

subjected or explained why they rise to the level of a constitutional violation. See Bacon v.

Minner, 229 F. App’x 96, 99 (3d Cir. 2007) (citing Wishon v. Gammon, 978 F.2d 446, 449 (8th

Cir.1992) (forty-five minutes of exercise per week not constitutionally infirm); see also Knight v.

Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (holding denial of outdoor recreation for

thirteen days not cruel and unusual punishment).

Plaintiffs’ Complaint is based on entirely conclusory phrases which indicate their belief

that their constitutional rights were violated in connection with matters relating to recreation,

food temperature, nutrition, lighting, and bedding while they were incarcerated at SCI-Phoenix.

However, Plaintiffs have not stated a plausible constitutional violation because they have not

alleged that these alleged conditions amounted to punishment, deprived them of a basic need, or

otherwise caused them harm. See Wilson v. Seiter, 501 U.S. 294, 305 (1991) (“Nothing so

amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no

specific deprivation of a single human need exists.”)

Plaintiffs have also not alleged facts explaining how Wetzel was involved in or

responsible for allegedly subjecting them to cruel and unusual punishment or otherwise violating

their rights. In a § 1983 action, the personal involvement of each defendant in the alleged

constitutional violation is a required element, and, therefore, a plaintiff must allege how each

defendant was involved in the events and occurrences giving rise to the claims. Rode, 845 F.2d

at 1207; Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (quotations omitted); see also

Iqbal, 556 U.S. at 676 (explaining that “ [b]ecause vicarious liability is inapplicable to . . . §

1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.”). Although a denial of recreation,

inadequate lighting, lack of adequate nutrition or inadequate bedding could amount to a

constitutional violation, Wyatt and McNeil have not provided enough factual allegations about

the conditions to which they were subjected to render their claims plausible.

I. Claim Involving Lack of Medical Treatment

The Complaint avers that Wyatt became very depressed and was denied the opportunity

to see mental health staff.12 (ECF No. 2 at 23.) At the outset, the Court notes that this allegation

does not attribute any conduct involving medical treatment to any individual defendant. Even

construing Plaintiffs’ Complaint liberally, this pleading deficiency makes it challenging to screen

the Complaint and would make it difficult for a defendant to meaningfully respond to the

pleading. See Lawal v. McDonald, 546 F. App’ x 107, 113 (3d Cir. 2014) (pleading that relied

on “repeated and collective use of the word ‘Defendants’” was ambiguous about each

Defendant’s role in the events giving rise to plaintiff’s claims). There are no specific actions (or

inactions) attributable to any individual defendant.

Wyatt should be mindful that in order to state a constitutional claim based on the failure

to provide medical treatment, a prisoner must allege facts indicating that prison officials were

deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 835

(1994). A prison official is not deliberately indifferent “unless the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. at 837. “A medical need is serious, . . . if it is one that has

12 Wyatt’s allegations, although sparse, are inconsistent. Other allegations in the Complaint

demonstrate that Wyatt did in fact receive medical treatment from the medical department with

respect to his mental health. Specifically, Wyatt averred that he discussed his refusal to take

certain medication with mental health staff at the prison, and the staff took him off of all of his

medications, and “instructed him to file [an] action against the Parole department.” (ECF No. 2

at 19.)

been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person

would easily recognize the necessity for a doctor’ s attention.” Monmouth Cty. Corr.

Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal quotations omitted).

Deliberate indifference is properly alleged “where the prison official (1) knows of a prisoner’s

need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical

treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment.” Bearam v. Wigen, 542 F. App’x 91, 92 (3d Cir. 2013) (per

curiam) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)); see also Montgomery v.

Aparatis Dist. Co., 607 F. App’x 184, 187 (3d Cir. 2015) (per curiam) (“Delay or denial of

medical care violates the Eighth Amendment where defendants are deliberately indifferent to a

prisoner’s serious medical need.”). Allegations of medical malpractice and mere disagreement

regarding proper medical treatment are insufficient to establish a constitutional violation. See

Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Furthermore, “[a] defendant in a civil rights

action must have personal involvement in the alleged wrongs” to be liable. Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

IV. CONCLUSION

The Court will dismiss the following claims for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)(B)(i) and (ii): (1) any claims made on behalf of any other individuals

besides Wyatt and McNeil; (2) all claims for injunctive relief; (3) all claims against the

Department of Probation and Parole; (4) all claims against Garner and Wetzel in their official

capacities; and (5) all claims based on grievances. The Court will dismiss these claims with

prejudice because any attempt at amendment would be futile. The Department of Probation and

Parole will be terminated as a Defendant. Plaintiffs’ due process claims will be dismissed

without prejudice.13 With respect to the remaining claims, Plaintiffs will be given an opportunity

to file an amended complaint in the event they can cure the deficiencies noted in this

Memorandum. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

Plaintiffs’ Motion for Appointment of Counsel will be denied without prejudice at this

time. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (in determining whether appointment

of counsel is appropriate, the Court should first determine whether plaintiff’s lawsuit has a legal

basis). Plaintiffs’ Declaration in Support of Preliminary Injunction and TRO will also be

denied.14 An appropriate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________________

JOSEPH F. LEESON, JR.

United States District Judge

13 The due process claims are dismissed without prejudice to Wyatt and McNeil filing a new case

raising these claims only in the event either of their underlying parole violation convictions are

reversed, vacated, or otherwise invalidated.

14 Wyatt’s Declaration in Support of Preliminary Injunction and TRO (ECF No. 16), to the extent

that this declaration is interpreted as a motion, will be denied. While the Declaration seeks

injunctive relief against the Department of Probation and Parole and Garner, it also names

additional individuals who are not named as defendants in this matter. Moreover, the

Declaration sets injunctive relief on the basis of new factual allegations which are not detailed in

the Complaint. Further, according to the Pennsylvania Department of Corrections

Inmate/Parolee Locator, Wyatt (Parole No. 724AD) is currently on parole, having been released

on February 26, 2020. Accordingly, it appears to the Court that his request for injunctive relief

has been rendered moot. See Pennsylvania Department of Corrections, Parolee Locator (Parolee

Nos. “724AD” (Wyatt) and “697IA” (McNeil); http://inmatelocator.cor.pa.gov (last visited May

5, 2020). See generally Fed. R. Evid. 201; Bracey v. Rendell, Civ. A. No. 11-217E, 2012 WL

226871, at *1 n.1 (W.D. Pa. Jan. 25, 2012) (taking judicial notice of DOC inmate locator).