The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES HARDY, CIVIL ACTION
Plaintiff :
:
THEODORE JOHNSON ef al.,
Defendants ; No, 22-4419
MEMORANDUM
PRATTER, J, OCTOBER po , 2023
Due to an error in calculating his minimum sentence, Charles Hardy was called into a
Pennsylvania Parole Board Office while he was out on parole. Mr. Hardy was then mistakenly
reincarcerated though he committed no violation. Seeking relief under 42 U.S.C. § 1983, Mr.
Hardy claims that his Fourth, Eighth, and Fourteenth Amendment rights were violated by the
individual members of the Pennsylvania Parole Board and the individual parole agents responsible
for the events that transpired that day. The Board Officer Defendants filed a Motion to Dismiss,
asserting that the Complaint failed to establish their personal involvement in depriving Mr. Hardy
of his federaily protected rights.
Mr. Hardy alleges separate § 1983 claims against Secretary of Corrections John Wetzel and
SCI-Coal Township Superintendent Tom McGinley. Secretary Wetzel and Superintendent Tom
McGinley have also moved to partially dismiss the Complaint, arguing that it fails to allege their
personal involvement or deliberate indifference.
In his allegations, however, Mr. Hardy has not sufficiently pled that the Board Officer
Defendants or Secretary Wetzel were aware of the risk of reincarceration or deliberate indifference
to that risk. Additionally, Mr. Hardy has not sufficiently alleged that Superintendent McGinley
had contemporaneous knowledge of and acquiescence of the offending incident. Though the Court
grants the motion to dismiss as to the Board Defendants and Department of Corrections
Defendants, Mr. Hardy may file an amended complaint,
BACKGROUND
In 2018, Mx. Hardy pleaded guilty to retail theft charges in the Chester County Court of
Common Pleas and received a sentence of two to four years in prison followed by three years of
probation. After serving two years and two months, Mr. Hardy was released on parole on March
31, 2020, under the care of Parole Agent Schnitzer. His parole lasted until December 17, 2020,
during which he fully complied with all parole conditions and did not commit any known
violations
On December 16, 2020, Parole Agent Schnitzer asked Mr. Hardy to report to the
Pennsylvania Parole Board Sub-Office in Norristown, PA to sign paperwork the next day at 8:30
a.m. However, upon arrival, Mr. Hardy was unexpectedly handcuffed and taken into custody
without being informed of the reason for his arrest by Parole Agent Williamson and two
unidentified female agents. He was then transported to the State Correctional Institution in Coal
Township, PA by another Parole Board employee.
Upon arrival at the correctional facility, the transporting Parole Board employee did not
provide any documentation but verbally stated that Mr. Hardy had been released early and should
be incarcerated as a re-entrance. The intake officers accepted Mr. Hardy for incarceration at SCI-
Coal Township without a court order or lawfully issued commitment.
During his time at SCI-Coal Township, Mr. Hardy was not allowed to make phone calls for
six weeks, He sent written inquiries to Coal Township Superintendent Tom McGinley and other
officials regarding his arrest but received only one response, which allegedly stated that he was
not listed in their records and that he was classified as a reentry with no parole violation, Mr. Hardy
sought legal assistance and filed a complaint in the Commonwealth Court of Pennsylvania to
secure his immediate release,
On March 31, 2021, Judge Renée Cohn Jubelirer presided over Mr, Hardy’s hearing. It was
conclusively demonstrated during the hearing that Mr. Hardy had not violated parole and that there
was no justification for his reincarceration. Testimony from Ms, Cara Sheffield, Chief of Case
Analysis for the Parole Board, revealed that the Pennsylvania Department of Corrections had
provided an inaccurate status sheet to the Parole Board, and the time sheet failed to reflect Mr.
Hardy’s correct minimum sentence and parole eligibility date. The Parole Board did not verify the
accuracy of the sheet. As a result of the hearing, Mr. Hardy was released from the correctional
facility after being incarcerated for approximately three and a half months, and Judge Jubelirer
issued an order directing the Department of Corrections to recalculate his parole to include credit
for the time served in the facility. However, Mr. Hardy claims that he still has not received credit
for the time he was imprisoned and is currently still on parole.
In November 2022, Mr, Hardy initially filed a complaint against the Board Defendants and
the Department of Corrections (“DOC”) officials, with the former later submitting a motion to
dismiss the complaint. In January 2023, Mr. Hardy filed an amended complaint, which is the
subject of the pending Motions to Dismiss from both the Board Officer and DOC Defendants,
LEGAL STANDARD
When evaluating a Rule 12(b)(6) motion to dismiss, the court may only rely on the facts
alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20
F.3d 1250, 1261 (3d Cir. 1994). The Court is required to accept the allegations presented in the
complaint as true, Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985),
The complaint should be construed in a light most favorable to the plaintiff, and the Court must
assess whether, based on any reasonable interpretation of the pleadings, the plaintiff may have a
valid claim for relief. Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d. Cir. 1988).
DISCUSSION
Section 1983 provides a cause of action against “every person who,” under the color of
state law, “subjects, or causes to be subjected,” another person to suffer a deprivation of a federally
protected right, 42. U.S.C. § 1983. A key requirement of a Section 1983 claim is that the defendant
“must have personal involvement in the alleged wrongs.” Christmann v. Link, 532 F. Supp. 3d
263, 269 (E.D. Pa. 2021) (quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014)). Thus, “[glovernment officials may not be held liable for the unconstitutional conduct of
subordinates under a theory of respondeat superior.” Jd. (citation omitted),
Regarding the personal involvement requirement, the Third Circuit has recognized only
two theories of supervisory liability. fd, at 269-70 (quoting A.M. ex rel. JM.K. vy. Luzerne Cnty.
Juvenile Det. Cir., 372 F, 3d 572, 586 Gd Cir. 2004)). First, supervisors can be held liable under
§ 1983 if it can be demonstrated that they established and maintained a policy, practice, or custom
that directly caused the violation of constitutional rights with deliberate indifference to the
consequences. /d, (quoting Luzerne Cnty., 372 F.3d at $86). Second, supervisors can be held liable
if they themselves participated in violating the plaintiff's rights, directed others to violate them, or
if the supervisor, as the person in charge, had knowledge of the violations committed by his or her
subordinates and acquiesced to him or her, Jd. (quoting same).
I. Liability of Members of the Pennsylvania Parole Board
Mr. Hardy alleges that the Parole Board Member defendants are liable under the first
Luzerne County theory for their failure to implement three crucial policies that would have
prevented the violation of Mr, Hardy’s rights. These policies include (1) ensuring that citizens are
not unlawfully arrested and incarcerated by subordinate Parole Board personnel, in light of the
known and unreasonable risk of violating their federal rights; (2) ensuring that reincarcerations are
cartied out through a valid process; and (3) implementing a procedure for parolees who have been
unlawfully arrested to challenge their reincarceration.
The wrongs alleged in Mr. Hardy's Amended Complaint do not stem from an existing
policy but rather from a failure to implement a policy. Thus, the alleged wrongdoing is more akin
to a failure-to-supervise situation, and a failure-to-supervise theory is “generally considered a
subcategory of policy or practice liability.” Christmann, 532 F. Supp. 3d at 270 (quoting Barkes,
766 F. 3d at 316). The Court of Appeals for the Third Circuit has developed a four-part test for
determining whether an official may be held liable for a failure to supervise. The test requires that
the plaintiff:
[Ijdentify a supervisory policy or practice that the supervisor failed to employ, and
then prove that (1) the policy or procedures in effect at the time of the alleged
injury created an unreasonable risk of a constitutional violation; (2) the defendant-
official was aware that the policy created an unreasonable risk; (3) the defendant
was indifferent to that risk; and (4) the constitutional injury was caused by the
failure to implement the supervisory practice or procedure.
fd. (citing Sample v, Diecks, 885 F. 2d 1099, 1118 (3d, Cir. 19899).
In cases of supervisory liability, the presence of an unreasonable risk is typically
established by providing evidence of multiple occurrences of harm. Sample, 885 F. 2d at 1118. In
cases where the risk of a constitutional violation is not readily apparent based on the nature of the
activity, the existence of a pattern of similar constitutional violations can likewise serve as
evidence suggesting that policymakers were aware of the risk and displayed deliberate indifference
in overseeing their subordinates. fd.
In contrast to police activity involving deadly force, sentence calculation does not
inherently present an obvious risk of constitutional harm that would automatically justify findings
of unreasonable risk, knowledge of the risk, and indifference by supervisory officials to the risk.
Id. (citing City of Canton y. Harris, 498 U.S. 378, 398 (1989}). Therefore, for Mr. Hardy's claim
to be sufficiently pled, he must allege a consistent pattern of constitutional violations to satisfy the
unreasonable risk and deliberate indifference prongs, See id. His argument that the Parole Board
was only aware of inaccuracies in the time sheets, as testified by Ms. Sheffield, without
acknowledging the potential for harm, fails to satisfy these requirements.
Mr. Hardy presents evidence of one prior instance of a similar alleged constitutional
violation. In Pergolini v. Pennsylvania Board of Probation & Parole, it was revealed that the
Parole Board had erroneously extended an inmate's maximum sentence date by over four months,
requiring the intervention of the inmate's private attorney to rectify the mistake. No. 504 C.D.
2019, 2020 WL 133036, at *2 (Pa. Commw. Ct. Jan. 13, 2020). However, this specific issue was
not the primary focus of the court's review in Pergolini, and the inmate was neither reincarcerated
nor imprisoned for a period of time longer than his actual sentence. See id. (holding that the court
had to first address the issue of waiver and then discussing that Mr, Pergolini did not “expressly
or impliedly attack either the Board’s denial of street time credit itself or the sufficiency of its
explanation for its denial”). The court primarily examined the Board's denial of street credit and
eventually determined that the inmate had received adequate review of this decision through the
Board's administrative processes. Jd. at *2-3.
The Board Defendants highlight the distinctions between Pergolini and this case. In
Pergolini, the sentence calculation error there pertained to the maximum sentence, id. at *2,
whereas the error in Mr, Hardy's case pertained to his minimum sentence. And a minimum sentence
is “the minimum term imposed on a prison sentence [that] merely sets the date prior to which a
prisoner may not be paroled.” Rummings v. Pa. Bd. Of Probation & Parole, 814 A.2d 795, 799
(Pa, Cmwith, 2002). In light of these distinctions, Pergolini is improper. Thus, Mr. Hardy has
failed to allege that the Board Officer Defendants were aware of the unreasonable risk of
reincarceration based on minimum sentence errors and that they acted with deliberate indifference
towards those known risks.
Il. Sufficiency of Allegations Against Secretary Wetzel
Mr. Hardy claims that Secretary Wetzel is liable under the first Luzerne County theory for
the Secretary’s failure to implement policies that would ensure that parolees were not being
unlawfully reincarcerated within the Department of Corrections system. As problematic as the
impact of this has been on Mr, Hardy personally, Mr. Hardy’s claim, as pled, fails again for failure
to allege a pattern of constitutional violation. In the Amended Complaint, Mr. Hardy does not
identify any other instances within the Department of Corrections system where inaccurate time
sheets caused an individual to undergo unlawful incarceration. In fact, Mr. Hardy’s claim against
Secretary Wetzel is weaker than the claim against the Board Officer Defendants because Mr.
Hardy does allege any facts to support the claim that these officials were even aware of
inaccuracies of the inaccurate time sheets. Therefore, Mr. Hardy has not asserted a proper
actionable claim against Secretary Wetzel under the first Luzerne County theory of supervisory
liability.
Ili, Sufficiency of Allegations Against Superintendent McGinley
Mr. Hardy claims that Superintendent McGinley is liable under the first Luzerne County
theory for his failure to implement policies that would ensure that parolees were not being
unlawfully reincarcerated at SCI-Coal Township. Mr. Hardy’s claim against the Superintendent
fails for the same reason that his claims against the Secretary fail. He has not alleged any instances
where inaccurate time sheets resulted in an individual’s unlawful reincarceration in the Amended
Complaint. Thus, he has not alleged a pattern of similar constitutional violations that could indicate
awareness of unlawful incarcerations or deliberate indifference to those risks.
Mr. Hardy also asserts that Superintendent McGinley is liable under the second Luzerne
County theory for having knowledge of and acquiescing to his unlawful imprisonment. A plaintiff
asserting a failure to supervise claim under the second Luzerne County theory must not only
identify a specific supervisory practice that the defendant failed to employ, but he or she must also
allege “both (1) contemporaneous knowledge of the offending incident or knowledge of a prior
pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be
found to have communicated a message of approval.” C.H. ex rel. ZH. v. Oliva, 226 F 3d. 198,
202 (3d Cir. 2000).
Asserting generally that a warden was notified of a problem but failed to take appropriate
measures is insufficient to establish the personal involvement required in alleging a Section 1983
claim. See Sears v. McCoy, No. 1:17-cv-869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017)
(holding that “the filing of a grievance, participation in ‘after-the-fact’ review of a grievance, or
dissatisfaction with the response to an inmate’s grievance does not establish the involvement of
officials and administrators in any underlying constitutional deprivation”); see also Greenwald v.
Coughlin, 93 Civ. 6551, 1995 WL 232736, at *4 (S.D.N.Y. Apr. 19, 1995) (“It is well-established
that an allegation that an official ignored a prisoner’s letter of protest and request for investigation
of aliegations made therein is insufficient to hold that official liable for the alleged violations.”).
Specifically in cases where a warden is made aware of a sentence calculation issue, the warden’s
failure to address such an issue cannot be considered deliberate indifference where there are
established procedures in place for others to handle such matters. Sample, 885 F. 2d at 1110,
Mr. Hardy claims he notified Superintendent McGinley in writing about the unlawful
imprisonment and argues that the Superintendents failure to rectify the issue constitutes deliberate
indifference. The notification alone does not confer liability, and Mr. Hardy does not allege that
Superintendent McGinley was solely responsible or had exclusive authority to rectify the sentence
miscalculation, As a result, Mr. Hardy cannot demonstrate that neither the Superintendent’s
knowledge of the incident nor acquiescence to it sufficiently states a claim under a supervisory
liability theory.
CONCLUSION
For the foregoing reasons, as certainly regrettable as Mr. Hardy’s experience was, based
on the pleading that the Court must consider as written, the Court grants the Motions to Dismiss,
though Mr. Hardy may submit a second amended complaint to try to correct the insufficiencies
noted in this memorandum.
BY THE COURT:
Lie
UNITED STATES DISTRICT JUDGE