Simpson v. PA Board of Probation & Parole

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHALMERS A. SIMPSON, JR.,

Plaintiff, CIVIL ACTION NO. 1:17-cv-02343

v. (SAPORITO, M.J.)

PA. BOARD PROBATION /

PAROLE, et al.,

Defendants.

MEMORANDUM

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

1 In ascertaining the factual underpinnings of Simpson’s claims to

determine the proper scope of discovery, we have relied on his complaint,

on the materials submitted by both parties in connection with the instant

motion to compel, and on public records of state judicial proceedings of

which we may properly take judicial notice.

2 See generally Commonwealth v. Simpson, Docket No. MJ-12201-

CR-0001456-2015 (Dauphin Cty. (Pa.) Magis. Dist. Ct.); Commonwealth

(continued on next page)

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

v. Simpson, Docket No. CP-22-MD-0000089-2016 (Dauphin Cty. (Pa.)

C.C.P.); Commonwealth v. Simpson, Docket No. CP-22-CR-0002098-2016

(Dauphin Cty. (Pa.) C.C.P.).

3 See generally Commonwealth v. Simpson, Docket No. CP-15-CR-

0004585-2008 (Chester Cty. (Pa.) C.C.P.).

4 At that preliminary arraignment, bail was set at $10,000, and

Simpson posted a $10,000 surety bond later that day.

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

5 Based on his submissions, on December 23, 2015, Simpson had

written to Matthew L. Owens, Esq., an attorney who represented him in

an ongoing motor vehicle accident case. Owens had not been retained to

represent Simpson in any criminal or parole matters. On January 18,

(continued on next page)

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 the charging parole agent was available to attend.7

2016, Owens wrote back to Simpson, forwarding a proposed retention

agreement, which would have required Simpson to remit payment of a

substantial initial fee together with the signed agreement to commence

the attorney’s representation in Simpson’s parole case.

6 The nature of the alleged threat(s) and force are not clear from the

pleadings or motion papers before us. In his complaint, however, Simpson

concedes that “the parolee desired a continuance” to secure private

representation—he appears simply to have been wary of signing the

continuance request form without counsel to advise him.

7 We note that Simpson takes issue with this reason for continuing

(continued on next page)

The hearing was rescheduled for January 29, 2016.

On January 29, 2016—forty-eight days after Simpson’s initial

detention—the preliminary and detention hearing was held. An attorney

from the county public defender’s office, Diane Morgan, Esq., was

available and offered to represent Simpson. But Simpson desired to be

represented by privately retained counsel. Simpson had apparently been

in contact with an attorney but had encountered difficulties in arranging

payment to the lawyer. Simpson apparently advised the hearing

examiner that he did not want the public defender to represent him and

did not want to proceed without an attorney. Simpson reportedly became

agitated and was removed from the hearing, which was then conducted

in absentia. Simpson’s parole agent, defendant Burrell, testified

regarding her unsuccessful attempts to contact him on November 5 and

6, 2015, and regarding his recent arrest and criminal charges for felony

retail theft. The hearing examiner accepted into evidence a copy of a state

the parole violation proceedings in his motion papers, arguing that

historical weather reports indicate that weather conditions were fine on

January 25, 2016. We take judicial notice, however, of the fact that the

Harrisburg area was still recovering at the time from a record 30-inch

snowfall from a blizzard that struck just two days earlier, likely making

travel difficult.

court docket report with respect to Simpson’s criminal proceedings, as

well as copies of the notes left for Simpson by Burrell on November 5 and

6, 2015, and a parole office sign-in sheet documenting that Simpson did

not report to the Harrisburg district office as directed on November 6,

2015. Ultimately, the hearing examiner found probable cause established

with respect to the technical parole violation charges. Because Simpson

was not present to waive his right to a panel hearing, the hearing

examiner scheduled a panel hearing on detention.

On or about February 22, 2016—one day before expiration of the

maximum sentence on the prior felony conviction underlying Simpson’s

parole supervision—the parole board rendered a decision on detention,

ordering that he should be detained pending disposition of the state

criminal charges, and ordering that a panel revocation hearing should be

scheduled.8 On February 23, 2016, Simpson was released from detention

when his parole sentence maxed out.

On April 13, 2016, a preliminary hearing was held in Simpson’s

recent felony retail theft case, and the case was transferred to the Court

8 The record before us does not contain any further documentation

or other information concerning this detention determination or the

revocation hearing.

of Common Pleas. On January 31, 2017, Simpson pleaded guilty and was

sentenced to serve three to twenty-three months in prison, with credit for

time served and immediate parole, to be followed by twelve months of

probation.

The plaintiff seeks any audio recordings or transcripts of his parole

revocation proceedings held on December 24, 2015, January 8, 2016, and

January 25, 2016, and any audio recordings of the preliminary and

detention hearing held on January 29, 2016. There is no dispute that

Simpson’s preliminary and detention hearing was scheduled to occur on

each of these four dates. Nor is there any dispute that on each of the first

three hearing dates, Simpson’s preliminary and detention hearing was

continued until a later date. There is no dispute that no attorney—

privately retained or public defender—was available to represent

Simpson at the December 24, 2015, hearing date. There is no dispute that

a public defender was available to represent Simpson at the January 8,

2016, hearing date, and that he declined that offer because he preferred

to retain private counsel but had not yet done so. There is no reasonable

dispute that the January 25, 2016, hearing date was continued due to the

unavailability of the hearing examiner and charging parole agent as a

result of inclement weather and travel conditions. There is no dispute

that a public defender was available to represent Simpson at the January

29, 2016, hearing, and that he once again declined that offer because he

preferred to retain private counsel but still had not yet done so. While

Simpson appears to allege that no hearing was actually held on January

29, 2016, he has clearly acknowledged that he was brought before a

hearing examiner that day, and documentary evidence submitted by

Simpson himself in support of his motion indicates that the preliminary

and detention hearing was held in absentia—that is, without him being

present—after he became disruptive and was removed from the room.

In his unsworn declaration, Attorney Davis attested that he had

thoroughly reviewed the parole board’s electronic audio files for Simpson

and only located a single electronic audio file for the January 29, 2016,

hearing date, which he provided to defense counsel, along with a

stenographic transcript of the hearing that day. Davis attested that there

were no electronic audio files (or transcripts) for the first three dates, on

which no hearing actually took place because proceedings were simply

continued and rescheduled for a new hearing date.

With respect to the first three hearing dates, a party “cannot be

compelled to produce what she does not possess.” Dipietro v. Jefferson

Bank, 144 F.R.D. 279, 281 (E.D. Pa. 1992). Moreover, it is clear the

content of any such audio recordings (or transcripts), if they did exist,

would be of no relevance to Simpson’s claim that his preliminary and

detention hearing was unreasonably delayed, given the undisputed facts

set forth above9 and the lack of any allegation or evidence that Simpson

suffered prejudice as a result of these delays. See Hammie v. Castor, No.

CIV. A. 93-5304, 1995 WL 61126, at *3 (E.D. Pa. Feb. 10, 1995) (“[T]he

remedies for failing to provide a timely preliminary hearing are limited.

9 We note that the applicable state regulations, referenced

repeatedly by Simpson, generally require that a preliminary hearing be

held within 14 days after a parolee is detained, and that a detention

hearing be held within 30 days after a parolee is detained. See 37 Pa.

Code § 71.2(1)(ii) (preliminary hearing); id. § 71.3(9) (detention hearing).

But these same regulations further provide for the exclusion of certain

delays from this time period, including “[t]he unavailability of a parolee

or counsel,” id. § 71.5(c)(1), “[c]ontinuances granted at the request of a

parolee or counsel,” id. § 71.5(c)(2), “[r]easonable or necessary

continuances granted to, or occurrences related to, the [parole board] or

its employees,” id. § 71.5(c)(3), and “[a]n event which could not be

reasonably anticipated or controlled by the [parole board], including, but

not limited to, . . . acts of nature,” id. § 71.5(c)(5). All three continuances

following the initial hearing date fall within one or more of these

exceptions. Moreover, any audio recordings or transcripts of proceedings

on these three dates would clearly lack any relevance whatsoever with

respect to Simpson’s claims that he was denied his due process rights to

be represented by counsel or present evidence in his defense.

For example, a person seeking relief must show he was prejudiced by the

delay in holding a preliminary hearing.”); id. at *4 (absent showing of

prejudice, 47-day delay in holding preliminary hearing on parole

violation charges did not violate due process); see also Benny v. U.S.

Parole Comm’n, 295 F.3d 977, 986 (9th Cir. 2002) (absent showing of

prejudice, 31-day delay in conducting preliminary interview did not

violate due process); Vargas v. U.S. Parole Comm’n, 865 F.2d 191, 194

(9th Cir. 1988) (“[A] preliminary hearing delay of 40 days without any

evidence of prejudice is not unreasonable.”). In particular, we note that,

notwithstanding the delay, the hearing examiner found probable cause

established with respect to Simpson’s technical violations, and the parole

board ultimately determined that he should be detained pending

disposition of the new criminal charges against him pursuant to 37 Pa.

Code § 71.3. There is no allegation, much less any evidence, that a more

expeditious hearing would have led to a different, more favorable result.

We further note that Simpson ultimately pleaded guilty to the underlying

felony retail theft charges, and the time he spent in detention pursuant

to a parole violator warrant appears to have been fully credited toward

service of his minimum jail sentence in that case as well. Accordingly, we

will deny the motion to compel with respect to the December 24, 2015,

January 8, 2016, and January 25, 2016, hearing dates.

With respect to the final hearing date—January 29, 2016—it is

clear from the record before us that a preliminary and detention hearing

was in fact held on that day, and a stenographic transcript of the hearing

has been produced to the plaintiff pursuant to his document request. It

does not appear from the record, however, that the defendants have

produced the audio recording of this hearing, the existence and

possession of which the Davis declaration clearly acknowledges.

Accordingly, we will grant the motion to compel with respect to

production of the electronic audio recording of the January 29, 2016,

hearing.

An appropriate Order follows.

Dated: July 26, 2019 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge