Petition for Writ of Certiorari — In Re James A. Wolfe, Petitioner

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:24-cv-21

JAMES A. WOLFE, '

(Judge Mariani)

Plaintiff

• FILED

SCRANTON

v.

JOHN RiVELLO, BARBARA

HOLLIBAUGH, MARKGRIMME,

MEGAN YOST, JESSICA COUSINS,

JAN 13 2024

PER

1

DEP

CLERK

Defendants

ORDER

AND NOW, this

day of January, 2024, upon consideration of the pro se

Plaintiffs complaint (Doc. 1), accompanied by an application to proceed in forma pauperis

(Doc. 9), and the prisoner trust fund account statement (Doc. 10), IT IS HEREBY

ORDERED THAT:

1.

Plaintiffs application to proceed in forma pauperis is GRANTED. (Doc. 9).

2.

Plaintiff snali pay the ruil tiling fee ot $350.00, cased on the financial

information provided in the application to proceed in forma pauperis. The full

filing fee shall be paid regardless of the outcome of the litigation..

3.

Pursuant to 28 U.S.C. § 1915(b)(1) and (2), the Superintendent/Warden, or

other appropriate official at Plaintiff’s place of confinement is directed to

deduct an initial partial filing fee of 20% of the greater of:

a.

The average monthly deposits in the inmate’s prison account for the

past six months,, or

b.

The average monthly balance in the inmate’s prison account for the

past six months.

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The initial partial filing fee shall be forwarded to the Clerk of the United States

District Court for the Middle District of Pennsylvania, P.O. Box 1148,

Scranton, Pennsylvania, 18501-1148, to be credited to the above-captioned

docket number. In each succeeding month, when the amount in Plaintiff’s

inmate trust fund account exceeds $10.00, the Superintendent/Warden, or

other appropriate official, shall forward payments to the Clerk of Court

equaling 20% of the preceding month’s income credited to Plaintiff’s inmate

trust fund account until the fees are paid. Each payment shall reference the

above-captioned docket number.

4.

The Clerk of Court is directed to SEND a copy of ihis Order to the

Superintendent/Warden of the institution wherein Plaintiff is presently

confined.

5.

The complaint is DEEMED filed.

6.

In accordance with Federal Rule of Civil Procedure 4(c)(3), the Clerk of Court

is directed to SERVE a copy of the complaint (Doc. 1), notice of lawsuit and

request to waive service of summons (form AO 398), waiver of the service of

summons (form AO 399), and this Order on the named Defendants. In the

interests of efficient administrative judicial economy, the Court requests that

Defendants waive service pursuant to Federal Rule of Civil Procedure 4(d).

7.

If service is unable to be completed due to Plaintiffs failure to properly name

the Defendants, or provide an accurate mailing address for the Defendants,

Plaintiff will be required to correct this deficiency. Failure to comply may

result in the dismissal of Plaintiff’s claims against the Defendants pursuant to

Federal Rule of Civil Procedure 4(m).

Robert D. Mariani

United States District Judge

2

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:24-cv-21

JAMES A. WOLFE,

(Judge Mariani)

Plaintiff

v.

SCRANTON

JOHN RIVELLO, BARBARA

HOLLIBAUGH, MARKGRIMME,

MEGAN YOST, JESSICA COUSINS,

APR 1:0 2024

Defendants

ORDER

AND NOW, this.

_ day of April, 2024, upon consideration of Plaintiffs motion

(Doc. 37) for default judgment, wherein Plaintiff moves for judgment by default on the basis

that Defendants’ motions to dismiss were untimely filed, and it being clear that Defendants’

motions were timely filed on March 25,2024 (Docs. 31, 32)1, IT IS HEREBY ORDERED

THAT the motion (Doc. 37) for default judgment is DENIED.

Robert D. Mariam

United States District Judge

1 Federal Rule of Civil Procedure 4(d)(3) provides that "[a] defendant who, before being served

with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the

request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the

United States.” According to the waivers of service filed by Defendants, they should have filed and served

an answer or a motion under Rule 12 within 60 days from January 23,2024 (i.e., on or before March 25,

2024). (See Docs. 18,22). Because Defendants responded to Plaintiffs complaint with their March 25,

2024 motions to dismiss (Docs. 31,32), the Court will deny Plaintiffs motion for default judgment.

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Anthony CALABRO, Petitioner-Appellant, v. UNITED STATES BOARD OF PAROLE et al.,

Respondents-Appellees

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

525 F.2d 660; 1975 U.S. App. LEXIS 11210

No. 75-3035 Summary Calendar *

December 31,1975

Editorial Information: Prior History

{1975 U.S. App. LEXIS 1} Appeal from the United States District Court for the Northern District of

Georgia.

Disposition:

Affirmed.

Anthony Calabro, (Pro Se), U.S. Penitentiary, Atlanta, Georgia, for

Counsel

Appellant.

John W. Stokes, U.S. Atty., Atlanta, Georgia, Richard A. Horder,

AUSA, U.S. Atty.., Atlanta, Georgia, for Appellee.

Judges: Coleman, Ainsworth and Simpson, Circuit Judges.

Opinion

Opinion by:

PER CURIAM

Opinion

{525 F.2d 661} The district court dismissed without hearing Calabro's petition for writ of habeas

corpus, which sought review of the denial of parole to the petitioner by the United States Board of

Parole.

The Board of Parole has broad discretion in considering parole applications. Judicial review of denial

of parole by it is permissible only upon allegations of facts, sufficient if proved, to establish that the

Board's action was arbitrary, capricious, or an abuse of discretion. See Buchanan v. Clark, 5 Cir.

1971,446 F.2d 1379, cert, denied, 1971,404 U.S. 979, 92 S. Ct. 347, 30 L. Ed: 2d 294; Tarlton v.

Clark, 5 Cir. 1971, 441 F.2d 384, cert, denied, 1971,403 U.S. 934, 91 S. Ct. 2263, 29 L. Ed. 2d 713;

Thompkins v. United States Board of Parole, 5 Cir. 1970, 427 F.2d 222.{1975 U.S. App. LEXIS 2}

The petition alleged that a progress report prepared for Board consideration by Calabro's caseworker

contained "numerous factual errors that if uncorrected would only serve to prejudice him before the

Parole Board", and that he was required to sign the report before being permitted to examine it, too

late to correct its misstatements of fact. But the petition further alleged that Calabro prepared his own

report in the form of a "Prepared Statement In Support of Anthony Calabro's Application for Parole"

and that "when the petitioner did appear before the January Board he served the members with copies

of his prepared statement and he read the same into the record". It thus appears from the face of the

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petition that opportunity was given at the parole hearing for petitioner to object fully to his Progress

Report. The Board's January 1975 denial was "set off for one year", meaning that the application

would be reconsidered in January 1976. At the time of the parole application Calabro had served

45-46 months of a 12 year sentence for conspiracy and sale of heroin.

It appears from the Board's written assigned reasons for denying parole that full consideration was

given by the Board{1975 U.S. App. LEXIS 3} to all pertinent factors, including a past history reflecting

"family instability and an extensive property-type criminal record 1 with four previous commitments

and two previous parole violations".

An abuse of discretion on the part of the Parole Board was not remotely possible of demonstration

upon the petition and record before the district court. No error was committed when the habeas

petition was dismissed. Buchanan, supra; Tarlton, supra; Thompkins, supra.

Affirmed.

Footnotes

1

Consisting of convictions for (1) assault and robbery, (2) attempted robbery, (3) assault, robbery and

escape, and (4) burglary and possession of burglary tools.

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2

© 2024 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to the

restrictions and terms and conditions of the Matthew Bender Master Agreement.

Additional material

from this filing is

available in the

Clerk's Office.