Petition for Writ of Certiorari — Dion Horton, et al., Petitioners v. Bruce R. Beemer, Administrative Judge, et al.

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Third Circuit,

dated May 2, 2025 ....................................................... 1a

APPENDIX B: Memorandum Opinion of the

United States District Court for the

Western District of Pennsylvania, dated

February 21, 2024 ..................................................... 25a

APPENDIX C: Order of the United States

District Court for the Western District of

Pennsylvania, dated February 21, 2024 ................ 35a

APPENDIX D: Opinion of the United States

District Court for the Western District of

Pennsylvania, dated December 22, 2023 ............... 37a

APPENDIX E: Order of the United States

District Court for the Western District of

Pennsylvania, dated December 22, 2023 ............... 69a

APPENDIX F: Complaint filed in the United

States District Court for the Western

District of Pennsylvania, dated October 2,

2022 ............................................................................. 71a

i

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APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 24-1325

DION HORTON; DAMON JONES; CRAIG BROWNLEE;

RAHDNEE ODEN-PRITCHETT; TATE STANFORD; ELIJAH

BRONAUGH, individually and on behalf of a class of

similarly situated persons,

Appellants,

v.

ADMINISTRATIVE JUDGE JILL RANGOS, in her official

capacity; FRANK SCHERER, DIRECTOR OF ADULT

PROBATION AND PAROLE, in his official capacity;

ANTHONY M. MARIANI, COURT OF COMMON PLEAS

JUDGE; KELLY BIGLEY, COURT OF COMMON PLEAS

JUDGE, in their official and individual capacities;

CHARLENE CHRISTMAS, PROBATION HEARING

OFFICER; ROBERT O’BRIEN, PROBATION HEARING

OFFICER; STEPHEN ESSWEIN, PROBATION HEARING

OFFICER; RENAWN HARRIS, PROBATION HEARING

OFFICER, in their official and individual capacities;

WARDEN OF ALLEGHENY COUNTY JAIL

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:22-cv-01391)

District Judge: Honorable J. Nicholas Ranjan

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Argued: February 19, 2025

Filed: May 2, 2025

Before: CHAGARES, Chief Judge, and BIBAS

and RENDELL, Circuit Judges

*

*

*

OPINION OF THE COURT

BIBAS, Circuit Judge.

Probationers are different from arrestees. Someone

who has only been arrested is presumed innocent; someone who has been convicted and is serving his sentence

of probation is not. This difference is why the government owes probationers less process before revoking

their conditional liberty. Even so, it must give probationers some process.

Here, it has—but only in part. Plaintiffs are probationers who sued several county judges and officials for

detaining them without first finding that detention was

necessary to prevent them from fleeing or committing

more crimes. Yet the Supreme Court has already

spelled out exactly what process they are due, and it

does not include such a finding of necessity. So we will

not recognize this novel due-process right. Still, we see

material factual disputes about whether the county is

following existing due-process rules for probationers.

We will thus affirm in part and reverse in part the District Court’s summary judgment for the county.

I.

PROBATIONERS WERE HELD FOR MONTHS

Probation lets convicted criminals free under certain

conditions. This freedom gives probationers a limited

constitutional liberty interest.

So, before the

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government may change or take away this freedom, it

must give them both (1) a preliminary hearing to decide

whether there is probable cause to believe that the probationer violated the conditions of his probation and (2)

a revocation hearing to decide whether to revoke probation. Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973);

see also Morrissey v. Brewer, 408 U.S. 471, 485-89 (1972).

Plaintiffs are probationers who say they were deprived of these rights. They sued several Pennsylvania

judges, probation officers, and the county warden, bringing two relevant claims. First, the probationers asked

the District Court to recognize a new procedural right:

that the government cannot detain them between the

preliminary and revocation hearings unless it first

makes “an adequate assessment to ensure such detention is necessary” to prevent them from fleeing or committing more crimes. App. 89 ¶162. Second, they accused the county of violating their existing rights by

holding inadequate preliminary hearings that lacked,

among other things, credible probable-cause findings

and by detaining them for an unreasonably long time between hearings.

The District Court not only denied a preliminary injunction, but also announced that it planned to convert

its ruling on that injunction into a summary judgment.

Two months later, it entered summary judgment for defendants on both claims.

On the first one, it held that plaintiffs’ novel claim

collides with contrary Supreme Court precedent. On the

second claim, the court found no genuine dispute of material fact about whether the county had followed existing constitutional rules in its initial hearings. Though its

opinion focused on whether to allow plaintiffs more discovery, it covered several important disputed facts.

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Two batches of facts are relevant here. The first relates to whether probationers are told ahead of time

about their hearings. Probationers arrested for allegedly violating their conditions wait a week or two to get

their preliminary hearings. Despite this wait, often no

one tells a probationer about his hearing until right before it starts.

The second relates to whether detention was justified. Probationers cannot be detained unless an independent officer finds probable cause to suspect that the

probationer violated his conditions of release. Morrissey, 408 U.S. at 486-87. But plaintiffs alleged that two

county judges had adopted blanket detention policies

that effectively assumed probable cause. Those alleged

policies led these two judges to order detention between

the two hearings more than 85% of the time, while the

other judges in the county did so only 71.5% of the time.

Plaintiffs submitted declarations that hearing officers

reflexively find probable cause in cases presided over by

those two judges, but the District Court implicitly rejected that assertion. Once the officer finds probable

cause, detention between the hearings can be long: As

of March 2023, the six named plaintiffs had been detained on average for 230 days before getting a revocation hearing, and four of the six still had not yet had one.

On appeal, we review the District Court’s grant of

summary judgment de novo, viewing all facts in favor of

these plaintiffs. Tundo v. County of Passaic, 923 F.3d

283, 286-87 (3d Cir. 2019).

II. PROBATIONERS MAY BE DETAINED WITHOUT A

FINDING OF NECESSITY

Plaintiffs’ claims rest on due process. In due-process

cases, we first figure out “the contours of the substantive

right” that the government is depriving someone of.

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Washington v. Harper, 494 U.S. 210, 219-21 (1990). If

the Constitution covers that right, we then gauge “what

procedural protections are necessary to protect” it. Id.

at 220.

When it comes to revoking probation, the Supreme

Court has already identified the contours of the substantive right and what process must be followed to deprive

someone of it. In Morrissey, it explained parolees’ liberty interest and the process that they are due. 408 U.S.

at 481-89. Then in Gagnon, it applied Morrissey to probationers. 411 U.S. at 782. Under those cases, there

must first be a preliminary hearing at which the hearing

officer finds probable cause to believe that the probationer violated his probation conditions. If so, he may be

detained for a “reasonable time.” Morrissey, 408 U.S. at

488. Plaintiffs argue that this requirement is just a floor

and that sometimes the preliminary-hearing procedures

described in those cases are insufficient. But Morrissey

and Gagnon stand in their way. In the Supreme Court’s

words, if the hearing officer finds probable cause to believe that a probationer violated his conditions, “[s]uch a

determination would be sufficient to warrant the parolee’s continued detention and return to the state correctional institution pending the final decision.” Id. at

487.

A. After a probable-cause hearing, probationers may be detained

Probationers have a limited substantive right to

bodily liberty. Because the probationer has already

been adjudged guilty, the government “has an overwhelming interest in being able to” detain him “without

the burden of a new adversary criminal trial.” Id. at 483.

Thus, his liberty is “conditional”; it depends on his following “special [probation] restrictions.” Id. at 480.

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Still, depriving him of that liberty “inflicts a grievous

loss.” Id. at 482 (internal quotation marks omitted). The

government may inflict that loss only after following certain processes.

Due process guarantees a probationer two hearings.

First, he gets a preliminary hearing to gauge “whether

there is probable cause or reasonable ground to believe

that” he has violated his conditions. Id. at 485. The process surrounding the preliminary hearing is “summary”:

informal, flexible, and economical. Gagnon, 411 U.S. at

786, 788. That is why Morrissey requires only one “independent [hearing] officer,” who need not be a judge.

408 U.S. at 486. Probationers have no automatic constitutional right to counsel. Gagnon, 411 U.S. at 790. And

evidence inadmissible at trial is admissible here. Morrissey, 408 U.S. at 489.

Though the hearing is informal, it still has some

strict requirements. The probationer must get notice of

the hearing and “its purpose”: to test probable cause for

the alleged violations, which should be identified in the

notice. Id. at 486-87. The probationer has the right not

only to appear in person and to speak, but also to bring

relevant witnesses and documents. Id. at 487. Plus, if

the government has a witness, the probationer gets to

confront the informant unless disclosing the informant’s

identity might cause harm. Id. Based on this information, the hearing officer must decide “whether there

is probable cause to hold the [probationer] for the final

decision of the [probation] board on revocation.” Id.

“Such a [probable-cause] determination would be

sufficient to warrant the [probationer’s] continued detention ... pending the final decision.” Id. (emphasis

added). But this detention may last only for “a reasonable time.” Id. at 488 (noting that a two-month delay

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“would not appear to be unreasonable”). The additional

safeguard limiting detention to a “reasonable time”

makes sense because the process at the first hearing is

thorough but not robust.

Second, the probationer gets more formal process

later, at the revocation hearing. The revocation hearing

is held to decide whether to revoke probation. Id. at 48788. For this hearing, the probationer gets notice of the

alleged violation again (this time in writing), disclosure

of the evidence against him, and the opportunity to be

heard and put on his own evidence and witnesses. Id. at

489. If the government puts on witnesses, the probationer may confront and cross-examine them, unless the

hearing officer finds good cause not to allow it. Id. All

of this happens before a neutral hearing body, like a probation board, but its members need not be judges or

even lawyers. Id. If the board decides to revoke probation, it must explain its reasons and evidence in writing.

Id.

Though the second hearing has more process than

the first, neither hearing is like a “criminal prosecution

in any sense.” Id.

B. Plaintiffs ask us to supplement this process,

but we cannot

Plaintiffs want us to add on another requirement:

Before the preliminary-hearing officer can order a probationer to be detained until his revocation hearing, the

officer would have to find that detention “serves a compelling government interest.” Appellants’ Br. 1. Yet the

Supreme Court held that a finding of probable cause at

the preliminary hearing is “sufficient to warrant the

[probationer’s] continued detention” for a reasonable

time until the revocation hearing. Morrissey, 408 U.S.

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at 487 (emphasis added). No further finding is needed.

The Court set this bar low; we cannot raise it.

Plaintiffs try to get around that statement two

ways, but both are dead ends. First, they try to demote

Morrissey’s holding about detention to mere dicta. Six

of the eleven judges of the en banc Seventh Circuit

agreed with that reading. See Faheem-El v. Klincar,

841 F.2d 712, 725 (7th Cir. 1988) (en banc). We do not.

As the other five judges agreed, Morrissey set out a

comprehensive “set of constitutional rules.” Id. at 730

(Easterbrook, J., concurring in part). In comprehensive

opinions like Morrissey, no rule is dicta; the Court has

stated all the relevant legal rules in the area, even if it

could have rested on just one of them. Id. (giving as a

similar example Miranda v. Arizona, 384 U.S. 436

(1966)).

Our partially dissenting colleague tries to carve this

part of Morrissey out of the rest of the opinion by construing Morrissey’s question presented in a novel way.

See Partially Dissenting Op. at 7 (citing Respondents’

Brief for the question presented). But in the Court’s

words, it “granted certiorari in this case to determine

whether the Due Process Clause of the Fourteenth

Amendment requires that a State afford an individual

some opportunity to be heard prior to revoking his parole.” Morrissey, 408 U.S. at 472. The Court could have

held that the parolees there were given no opportunity

to be heard before revocation and reached the same result without explaining all the required process. Id. at

475-76 (explaining that the state had asserted that the

parolees were given a hearing for the first time in its answering brief and that this hearing occurred after revocation).

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In the narrowest sense, one might say that the sole

right “at issue” in Morrissey related to the revocation

hearing itself. See Partially Dissenting Op. at 9. But we

may not simply ignore that the Court went well beyond

that. It laid out all the constitutional rules in the area:

a prompt preliminary hearing, a finding of probable

cause to justify further detention, a reasonable limit on

the period of custody before the revocation hearing, and

then the revocation hearing itself. Which of these other

rules might be dicta under our colleague’s view? See

Faheem-El, 841 F.2d at 730 (Easterbrook, J., concurring

in part) (“[A]lmost all of the opinion could be labeled

dicta.”). Plus, the Court said the point of the preliminary

hearing is to decide if there is enough evidence based on

probable cause “to hold the [probationer] for the final decision ... on revocation.” Morrissey, 408 U.S. at 487 (emphasis added). The Court did not overlook whether to

add a necessity requirement; it deliberately chose not to.

Second, plaintiffs analogize to cases requiring the

government to show a specific interest in detaining a

person. They argue that the same logic should operate

here. For instance, before detaining an arrestee, a magistrate must first find that he poses a risk of flight or a

danger to the community. 18 U.S.C. § 3142(e)(1). Such

a showing is indeed required—but only for people presumed innocent. See, e.g., United States v. Salerno, 481

U.S. 739, 751 (1987) (pretrial detainees); Schall v. Martin, 467 U.S. 253, 263-64 (1984) (juvenile pretrial detainees); Kansas v. Hendricks, 521 U.S. 346, 357-60 (1997)

(sexually dangerous people who are about to be released

from prison at the end of their sentences). What is more,

unlike in many of the cases cited by our partially dissenting colleague, the detention here is only for a reasonable

time. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 692

(2001) (discussing risk of “potentially permanent”

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detention when deportation is not feasible); Foucha v.

Louisiana, 504 U.S. 71, 82, 85 (1992) (addressing indefinite civil commitment for insanity); Jackson v. Indiana,

406 U.S. 715, 727 (addressing indefinite civil commitment for incompetency to stand trial that “is permanent

in practical effect”).

Probationers are different. They are no longer presumed innocent. Like parolees, they have already been

adjudged guilty and are still serving their criminal sentences. Morrissey, 408 U.S. at 483. Probation is still “a

form of criminal sanction.” Griffin v. Wisconsin, 483

U.S. 868, 874 (1987). That is why a state may infringe on

a probationer’s liberty in ways that would be intolerable

for those not serving a criminal sentence. Id. at 877-78.

That is why the bar for detaining them is lower. Morrissey, 408 U.S. at 483. And that is why “[s]tates have wide

latitude under the Constitution to structure [probation]

revocation proceedings.” Pa. Bd. of Prob. & Parole v.

Scott, 524 U.S. 357, 365 (1998). Thus, finding probable

cause that a probationer violated his conditions suffices

to detain him for a reasonable time before the revocation

hearing. Morrissey, 408 U.S. at 487. We cannot expand

the requirements already set by the Supreme Court.

Finally, two amici ask us to give probationers more

protections than the parolees in Morrissey because probation supposedly no longer serves rehabilitation and

drives over-imprisonment. But the Supreme Court

“do[es] [not] perceive” “any difference relevant to the

guarantee of due process between the revocation of parole and the revocation of probation.” Gagnon, 411 U.S.

at 782. Our Court has also treated probationers and parolees “as indistinguishable for constitutional purposes.”

United States v. Quailes, 126 F.4th 215, 222 n.9 (3d Cir.

2025). So we must treat them the same.

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III. THERE ARE DISPUTES OVER MATERIAL FACTS

But plaintiffs’ other federal claim, that the county

did not follow Morrissey and Gagnon’s established rules,

survives. We see material factual disputes over whether

the county followed due process.

Before the preliminary hearing, probationers must

get “notice that the hearing will take place” and of “what

[probation] violations have been alleged.” Morrissey,

408 U.S. at 486-87. It follows logically that this notice

must be enough to vindicate probationers’ other rights,

like speaking and putting on evidence or witnesses.

See id. at 487. On this record, we cannot say plaintiffs

got enough notice. For instance, one plaintiff was not

notified of his hearing until “right before it happened,”

so he had no time to prepare. App. 20 ¶40. Likewise,

another plaintiff got “no advance notice before the hearing.” App. 21 ¶50. We thus reverse and remand to let

plaintiffs proceed on this claim.

This remand renews plaintiffs’ chance to press two

potentially meritorious points that they forfeited on appeal by failing to argue them in their opening brief.

First, the long detentions, averaging 230 days, could be

unreasonable. Second, there could be a material dispute

about whether detention is mandatory: Are the hearing

officers truly making independent findings of probable

cause? Also, on this record, we have questions about

whether plaintiffs were given enough of a chance to

speak at their preliminary hearings. On remand, plaintiffs may advance these arguments properly, and we

trust the District Court to move this case forward from

this unusual posture.

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*****

Probationers get due process, but only what the Supreme Court has already prescribed. We cannot give

them more. Yet because there are still factual disputes

about whether the county followed those processes, we

will reverse and remand in part.

RENDELL, Circuit Judge, concurring in part and dissenting in part:

In Allegheny County, probationers are routinely

held in jail awaiting their revocation hearings, sometimes for months. This detention is notwithstanding the

fact that there has been no determination that they

would pose a danger to society or flight risk upon release. In our constitutional scheme, “freedom from

physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action[.]’ ” Kansas v. Hendricks,

521 U.S. 346, 356 (1997) (Thomas, J.) (quoting Foucha v.

Louisiana, 504 U.S. 71, 80 (1992)). But the majority concludes that dicta in a Supreme Court opinion that focuses

on the ultimate revocation determination—not interim

detention—controls and forces us to permit this unlawful detention.1 The majority also draws a firm constitutional line between probationers and arrestees, which

obscures the Morrissey and Gagnon Courts’ robust conception of probationers’ liberty interests. Both conclusions are misguided. Accordingly, I dissent from the

1

As I discuss at length below, Morrissey’s statement on prerevocation detention is wholly unrelated to its holding, which for the

first time, established the scheme of preliminary and final revocation hearing.

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Majority’s conclusion and reasoning as to Count II of Appellants’ complaint.2

A sentence of probation in theory aims to give

“young and new violators of law a chance to reform and

to escape the contaminating influence of … imprisonment.” United States v. Murray, 275 U.S. 347, 357-58

(1928).3 Probationers, like parolees, carry out their sentences not behind bars, but in society, as they have been

adjudged to show “reasonable promise” of being able to

be a part of “society and function as a responsible, selfreliant person.” Morrissey v. Brewer, 408 U.S. 471, 482

(1972). In Morrissey, the Court stressed that “the liberty of a parolee [and probationer], although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the

parolee and often on others.” Id. It is because of the

important nature of this liberty that the Morrissey and

Gagnon Courts rejected the view that parole and probation represent an “act of grace” that can be revoked absent due process. Gagnon v. Scarpelli, 411 U.S. 778, 782

n.4 (1973) (quoting Escoe v. Zerbst, 295 U.S. 490, 492

(1935)). Instead, they established a scheme to comport

with due process—they required a preliminary and final

hearing prior to revocation. Id. at 782.

The preliminary hearing is an informal proceeding

“to determine whether there is probable cause or reasonable ground to believe that the arrested

2

I agree with the majority’s conclusion and reasoning as to

Count I, that is, that there are material factual disputes over

whether the county’s practices comply with due process as set forth

in Morrissey and Gagnon.

3

Amici have detailed how today’s probation practices stray far

from these original goals. See generally Brief for American Civil

Liberties Union as Amicus Curiae Supporting Appellants.

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[probationer] has committed acts that would constitute

a violation of [probation] conditions.” Morrissey, 408

U.S. at 485. The final hearing is where the state makes

its final revocation decision. Id. at 487-88. This final decision encompasses two questions. The first is factual:

has the individual violated one or more of their conditions? 408 U.S. at 479. If so, the second and “more complex” question arises: “should the [probationer] be recommitted to prison or should other steps be taken to

protect society and improve chances of rehabilitation?”

Morrissey, 408 U.S. at 479-80.

Many alleged probation violators in Allegheny

County never have a true final revocation determination, as they are detained for so long that no further punishment is warranted. Plaintiff Oden-Pritchett was detained for over seven months before Judge Bigley sentenced him to time served at his final revocation hearing,

thereby ending his probationary sentence. Plaintiff

Brownlee was also sentenced to time served at his final

revocation hearing after being detained for over seven

months. Indeed, it is common that probationers remain

detained after the initial hearing, but far less common

that probationers are incarcerated after their final hearing. In these circumstances, a probable cause finding

amounts to a de facto final revocation decision.

Detention after only a probable cause finding is especially unfair because 82.3% of Allegheny County’s condition violations are misdemeanors or summary offenses

(e.g., a minor, non-traffic citation). Many of these offenses do not allow for a sentence of imprisonment, or

only allow for a sentence of imprisonment not to exceed

twenty or ninety days, depending on the offense. See 30

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Pa. Cons. Stat. § 923(a)(1)-(7).4 So detention before revocation inflicts more punishment in these cases than

would otherwise be legally imposed. The median prerevocation detention period in Allegheny County is 68

days and each named Plaintiff was detained for an average of over 230 days. These detentions far exceed the

statutory maximum for certain offenses.

Plaintiff-Appellants’ complaint details many scenarios in which detention seems plainly unjust. Several

named plaintiffs were detained based on new criminal

charges (i.e., a violation of their probation condition to

not commit new crimes). In each case, the judge in the

parallel criminal proceeding set bail, but the probationers remained detained regardless of whether they were

able to, or whether they did, in fact, post bail. App. 159

4

The statutory maximum sentences for summary offenses and

misdemeanors are:

(1) For a summary offense of the first degree, a fine of $250

or imprisonment not exceeding 90 days.

(2) For a summary offense of the second degree, a fine of $150

or imprisonment not exceeding 20 days.

(3) For a summary offense of the third degree, a fine of $75.

(4) For a summary offense of the fourth degree, a fine of $25.

(5) For a misdemeanor of the third degree, a fine of not less

than $250 nor more than $5,000, or imprisonment not exceeding

90 days, or both.

(6) For a misdemeanor of the second degree, a fine of not less

than $500 nor more than $5,000, or imprisonment not exceeding

two years, or both.

(7) For a misdemeanor of the first degree, a fine of not less

than $1,500 nor more than $10,000, or imprisonment not exceeding five years, or both.

30 Pa. Cons. Stat. § 923(a)(1)-(7).

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(Plaintiff Horton “could have and would have posted

[bail] if not for the probation detainer lodged against

[him].”); App. 184 (same situation for Plaintiff Frazier);

App. 188 (same situation for Plaintiff Robinson); App.

192 (same situation for Plaintiff Todd); App. 201 (same

situation for Plaintiff Stanford); App. 204 (same situation

for Plaintiff Bronaugh); App. 165 (Plaintiff Jones arrested on new criminal charges, posted bond, but re-arrested and detained because new charges violated probation conditions); App. 171 (same outcome for Plaintiff

Brownlee); App. 175 (Plaintiff Oden-Pritchett “did not

even bother” posting bond or attempting to get it lowered, reasoning that “because of [his] probation detainer,” “[t]here’s no point because even if [his bond]’s

reduced [he] won’t be able to get out of jail anyway.”);

App. 180 (Plaintiff Johnson declaring “As far as I can tell,

this probation detainer is the only reason I can’t get out

of jail, because I have a bond set on the new charges.”).

In some instances, the state dropped probationers’

underlying criminal charges, or gave probationers a noncustodial sentence for their new criminal charges, while

the probationer awaited their final revocation hearing.

Those probationers nevertheless remained detained

prior to their final revocation hearing because of Allegheny County’s probation detainer practices. See, e.g.,

App. 361 (Plaintiff Stanford remained detained pending

his final revocation hearing even after state prosecutors

withdrew all charges against him); App. 435-37 (Plaintiff

Oden-Pritchett had some charges dropped, and took a

plea for probation for others, but was told by his trial

judge that his detainer could not be lifted “because [his]

probation wasn’t under her”).

The majority sees no problem with this, given that

Morrissey said in passing that the preliminary hearing

officer’s probable cause determination “would be

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sufficient to warrant the parolee’s continued detention

and return to the state correctional institution pending

the final decision.” 408 U.S. at 487. True, that line appears in Morrissey. But “[j]udicial opinions are not statutes, from which we squeeze all we can out of every last

word. Rather, we try to understand the Court’s language against the backdrop of the particular controversy that the Court was resolving.” In re Plavix Mktg.,

Sales Pracs. & Prods. Liab. Litig. (No. II), 974 F.3d

228,235 (3d Cir. 2020). Every other court that has considered this statement in Morrissey in this context has

concluded that it is nonbinding dictum. See Faheem-El

v. Klincar, 841 F.2d 712, 724-25 & n.16 (7th Cir. 1988);

Roberson v. Cuomo, 524 F. Supp. 3d 196, 211 (S.D.N.Y.

2021); see also App. 476-77 (District Court remarking “I

know it’s dicta, but that language in Morrissey … seems

to suggest that a Court can just detain a probationer immediately as it’s sorting out these things.”).

The majority concludes that Morrissey’s statement

on pre-revocation detention binds us because Morrissey

“set out a comprehensive ‘set of constitutional rules’ ”

which collectively bind the lower courts. Maj. Op. at 10

(quoting Faheem-El, 841 F.2d at 730 (Easterbrook, J.,

concurring)). Rather than separating dictum from holding by interpreting Morrissey’s “language against the

backdrop of the particular controversy that the Court

was resolving,” Plavix Mktg., 974 F.3d at 235, the majority throws up its hands and concludes that we must

assume each pronouncement in Morrissey is part of its

holding. I see no reason to stray from the well-established idea that “[a] judge’s power to bind is limited to

the issue that is before him[.]” United States v. Rubin,

609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring). Like any other decision, then, we can and should

18a

separate dictum from holding by considering which issues were before the Court.

The Court in Morrissey addressed the due process

implications of the total lack of any hearing prior to the

state’s revocation of parole.5 Thus, the portions of Morrissey that address this issue—that due process requires

not only a hearing, but two hearings, which must have

certain minimum procedures—represent the Court’s

holding. But its statements regarding detention after

the preliminary hearing do not. Not only was detention

after the preliminary hearing not at issue, it was specifically conceded when counsel told the Court that the issue was not important to the case.6 See Art & Antique

5

See, e.g., Respondents’ Br. 2, Morrissey v. Brewer, 408 U.S.

471 (1972) (No. 71-5103) (“The question presented for review is

whether the due process clause of the Fourteenth Amendment to

the United States Constitution requires an evidentiary hearing

prior to the revocation by the Iowa Board of Parole of a parole which

had been granted by said State Board of Parole.”); Pet. Reply Br. 3,

Morrissey, 408 U.S. 471 (No. 71-5103) (“Petitioners submit that

what is at issue in this case is not whether or not a parolee shall

remain in a position of conditional liberty pending determination of

a parole violation, but whether or not his conditional liberty as a

parolee shall be revoked … without due process of law.”).

6

Petitioners’ reply brief stated:

If the only interest of the parolee which were involved in this

case was the question of whether or not he should be imprisoned pending a determination of the fact of parole violation,

Petitioners may well concede that the interests of society may

outweigh his interest in remaining free during the relatively

short period of time required to determine whether or not his

parole had in fact been violated.

Pet. Reply Br. 3, Morrissey, 408 U.S. 471 (No. 71-5103).

Additionally, at oral argument, counsel for Petitioners engaged

in the following colloquy:

19a

Dealers League of Am., Inc. v. Seggos, 121 F.4th 423, 437

(2d Cir. 2024) (“[A] party’s concession on a disputed issue of law may control the outcome of the particular dispute between the parties, but it does not necessarily establish a legal precedent, which, under the rule of stare

decisis, will control the decision of other unrelated

cases.”); Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir.

2019) (“Our hands are not tied in a later case just because, in an earlier one, a party conceded an issue and

the panel took that concession at face value.”).

All in all, the issue of detention pending the final revocation hearing was not at issue in Morrissey, and its

statement regarding such detention was therefore dictum. See United States v. Bennett, 100 F.3d 1105, 1110

(3d Cir. 1996) (“A court’s statement concerning an issue

not raised on appeal is dicta.”); Cohens v. State of Virginia, 19 U.S. 264, 399 (1821) (“[G]eneral expressions, in

every opinion, are to be taken in connection with the case

in which those expressions are used. If they go beyond

the case, they may be respected, but ought not to control

Q: That is, you don’t object to the fact that, having found out

what he found out, the parole officer could arrest them? And

detain them?

A: No, I don’t object to that, Your Honor.

Q: So that arrest and detention pending a hearing would be

satisfactory, as far as you’re concerned?

A: So far as I’m concerned in this case, Your Honor, that would

be satisfactory[.]

Q: Unless there is some finding that [a parolee] is dangerous,

he must be—he has to be released after bail, is that it?

A: No, I really don’t think that’s important to the case, Your

Honor.

Oral Arg. Tr. 11-12, 16, Morrissey, 408 U.S. 471 (No. 71-5103).

20a

the judgment in a subsequent suit when the very point

is presented for decision.”). And, as this Court has remarked, “the Supreme Court has repeatedly cautioned

that it ‘does not decide important questions of law by

cursory dicta[.]’ ” Diggs v. United States, 740 F.2d 239,

245 (3d Cir. 1984) (quoting In re Permian Basin Area

Rate Cases, 390 U.S. 747, 775 (1968)).

While “[w]e should not idly ignore considered statements the Supreme Court makes in dicta,” In re McDonald, 205 F.3d 606, 612-13 (3d Cir. 2000), we should also

acknowledge that:

Dicta are often dangerous. Because they are unmoored from any concrete set of facts and are

frequently the product of judicial musing rather

than adversarial presentations from parties

with a vested interest in exploring issues in detail, dicta can be ill-informed. … “[T]he problem

is that dicta no longer have the insignificance

they deserve. They are no longer ignored.

Judges do more than put faith in them; they are

often treated as binding law. The distinction between dictum and holding is more and more frequently disregarded.”

Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d

515, 517 (3d Cir. 2018) (Jordan, J., joined by Chagares &

Bibas, JJ., dissenting) (quoting Pierre N. Leval, Judging

Under the Constitution: Dicta about Dicta, 81 N.Y.U.

L. REV. 1249, 1250 (2006)).

The Morrissey and Gagnon Courts did not have the

benefit of adversarial presentation of the issue of prerevocation hearing detention. But we do. Rather than

hanging our hat on Morrissey’s dictum, we should assess

for ourselves whether it is well-reasoned—that is,

whether due process requires a suitability-for-release

21a

determination prior to prolonged pre-revocation detention. I would conclude that due process requires a suitability-for-release determination prior to pre-revocation

detention. At the very least, I would conclude that further factual finding is needed for a proper procedural

due process analysis.

In the analogous pretrial context, an individual can

be briefly detained based on a probable cause finding,

Gerstein v. Pugh, 420 U.S. 103, 120 (1975), but the government must determine that such detention serves a

“legitimate and compelling” regulatory purpose for prolonged pretrial detention, United States v. Salerno, 481

U.S. 739, 752 (1987). Similarly, in the probation context,

probable cause alone cannot support prolonged detention prior to a determination that the probationer has, in

fact, violated the conditions of their probation.

The majority urges that we cannot draw from Gerstein and Salerno because they apply to pretrial detainees who have not been convicted of any crime, whereas

here, probationers have a prior conviction. But the prior

conviction is not the issue. Even cognizant of the prior

convictions, Morrissey and Gagnon recognized that parolees and probationers possess a liberty interest that

“includes many of the core values of unqualified liberty,”

the termination of which “inflicts a ‘grievous loss’ on the

[probationer] and often on others.” Morrissey, 408 U.S.

at 482; see also Black v. Romano, 471 U.S. 606, 610 (1985)

(“The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the

revocation of the conditional liberty created by probation.” (citing Bearden v. Georgia, 461 U.S. 660, 666 & n.7

(1983))). A prior conviction does not justify doing away

with Gerstein and Salerno’s implication that probable

cause alone is not enough to justify prolonged deprivation of an individual’s liberty interest. Cf. Schall v.

22a

Martin, 467 U.S. 253, 265, 278 (1984) (remarking that

“The juvenile’s countervailing interest ... is undoubtedly

substantial as well. But that interest must be qualified.

... [T]he juvenile’s liberty interest may, in appropriate

circumstances, be subordinated to the State’s parens patriae interest in preserving and promoting the welfare

of the child” and concluding that detention scheme satisfied due process where it required “a finding that there

is a ‘serious risk’ that the juvenile, if released, would

commit a crime prior to his next court appearance” (citations omitted)).

The majority is correct that a probationer’s liberty

can be taken away “without the burden of a new adversary criminal trial” unlike a pretrial detainee, as it is “dependent on observance of special … restrictions.” Morrissey, 408 U.S. at 483, 480. Those restrictions curtail a

probationer’s day-to-day life “substantially beyond the

ordinary restrictions imposed by law on an individual

citizen.” Id. at 478. An ordinary citizen’s liberty is conditional on compliance with criminal laws—if they commit a crime, they might be sent to prison. So too with a

probationer, though they also risk being sent to prison if

they do not comply with their probation conditions—for

instance, if they miss a meeting with their probation officer, consume alcohol, or associate with a gang member.

While Morrissey stated that “the full panoply of rights

due a defendant in [a revocation] proceeding does not apply to [probation] revocations,” 408 U.S. at 480, it clarified that this is not because of the limited nature of a probationer’s liberty interest. Instead, it is due to the

state’s interest in sending probation violators to prison

“if in fact [the probationer] has failed to abide by the conditions of his [probation].” Id. at 483. It follows, a fortiori, that this interest does not carry commanding weight

unless and until the probationer has been shown to have

23a

violated the conditions of their probation at the final revocation hearing.

In every other scenario in which the government detains an individual, courts have concluded that due process requires a finding that such detention serves a governmental interest. These scenarios include pretrial detention of adults, Salerno, 481 U.S. at 751, pretrial detention of juveniles (a context where, as here, an individual’s liberty interest is more easily subordinated to the

state’s), Schall, 467 U.S. at 274-75, 281, civil commitment

of individuals not convicted by reason of insanity,

Foucha, 504 U.S. at 81-82; see also Jackson v. Indiana,

406 U.S. 715, 738 (1972), civil commitment of individuals

likely to engage in “predatory acts of sexual violence,”

Hendricks, 521 U.S. at 357-58, detention of deportable

noncitizens, Zadvydas v. Davis, 533 U.S. 678, 690 (2001),

and detention of deportable noncitizens with felony convictions, Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 775

(9th Cir. 2014). Under the majority’s view, pre-probation revocation detention—before anyone has determined that there is anything more than probable cause

to believe the probationer has violated his conditions—

is apparently anomalous.

Apart from questions of what substantive due process may require here, at the very least, a Mathews

v. Eldridge, 424 U.S. 319 (1976), procedural due process

analysis is appropriate. I view Faheem-El’s balancing of

the three Mathews factors as well-reasoned. See 841

F.2d at 725-27. Like the Seventh Circuit in Faheem-El,

we should remand for further factual finding on the fiscal

and administrative burdens stemming from requiring

hearing officers to make suitability- for-release determinations at the preliminary “Gagnon I” hearings.

24a

Rather than engaging in the analysis dictated by

precedent, the majority relies on Morrissey’s nonbinding dicta to avoid balancing the individual’s interest versus the interest of the state. In so doing, it does great

damage to the probationer’s liberty interest and pushes

us closer to the long-disfavored view of probation as an

“act of grace.” Escoe, 295 U.S. at 492. A sentence of probation represents a determination that an individual will

not be incarcerated unless it is determined that (1) they

violated the conditions of their probation and (2) they

can no longer live in society without committing antisocial acts. See Morrissey, 408 U.S. at 479-80. But the majority blesses prolonged detention where neither determination has been made. I would have weighed probationers’ interests against the State’s to determine the

permissible bounds of such detention, as I believe controlling precedent requires. Accordingly, I respectfully

dissent from the Court’s conclusion that Appellants’

Count II fails as a matter of law.

*

*

*

25a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

22-CV-1391-NR

DION HORTON, ET AL.,

Plaintiffs,

v.

JILL RANGOS, ET AL.,

Defendants.

Filed February 21, 2024

MEMORANDUM OPINION

J. Nicholas Ranjan, United States District Judge

Before the Court is the question of whether it should

convert its decision on Plaintiffs’ preliminary-injunction

motion into a summary-judgment decision. On December 22, 2023, the Court notified the parties of its intent

to do so. ECF 140. On January 24, 2024, Plaintiffs filed

a response to that notice (ECF 144); on February 14,

2024, Defendants filed their responses (ECF 145, ECF

146).

After careful review of the complaint, the Court’s

prior decision on the preliminary-injunction motion, the

exhibits that were submitted as part of that motion, evidence presented at the preliminary-injunction hearing,

and the parties’ responses to the notice, the Court will

enter summary judgment on Counts I and II of the

26a

complaint, and decline to exercise supplemental jurisdiction over Counts III and IV, the state-law claims.1

LEGAL STANDARD

Summary judgment is appropriate “if the movant

shows that there is no matter of law.” Fed. R. Civ.

P. 56(a). At summary judgment, the Court must ask

whether the evidence presents “a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986). In making this determination, “all reasonable

inferences from the record must be drawn in favor of the

nonmoving party and the court may not weigh the evidence or assess credibility.” Goldenstein v. Repossessors, Inc., 815 F.3d 142, 146 (3d Cir. 2016) (cleaned up).

The moving party bears the initial burden to show the

absence of a genuine dispute of material fact, and “if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party[,]” summary judgment

is improper. Id. (citation omitted).

But if the non-moving party “fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial,” summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte,

so long as the losing party was on notice that she had to

1

The Court previously set forth the facts and procedural

background in this case. Horton v. Rangos, No. 22-1391, 2023 WL

8865872 (W.D. Pa. Dec. 22, 2023) (Ranjan, J.). Because the parties

are familiar with the record, the Court will not repeat the facts and

procedural background here.

27a

come forward with all of her evidence.” Id. at 326. Under Rule 56, “[a]fter giving notice and a reasonable time

to respond, the court may: (1) grant summary judgment

for a nonmovant; (2) grant the motion on grounds not

raised by a party; or (3) consider summary judgment on

its own after identifying for the parties material facts

that may not be genuinely in dispute.” Fed. R. Civ.

P. 56(f). “From a procedural standpoint, the Federal

Rules of Civil Procedure clearly require that parties be

given ten days notice that a motion for summary judgment is being considered.” Gibson v. Mayor and Council of City of Wilmington, 355 F.3d 215, 223 (3d Cir.

2004). “The purpose [of giving notice] is to give the losing party the opportunity to marshal all the evidence

that would be used to oppose summary judgment.” Forrest v. Parry, 930 F.3d 93, 111 (3d Cir. 2019).

Courts can treat a preliminary-injunction request as

a motion for summary judgment “if there are no issues

of material fact and the party is entitled to judgment as

a matter of law.” Krebs v. Rutgers, 797 F. Supp. 1246,

1252-53 (D.N.J. 1992). “A district court might also convert a decision on a preliminary injunction into a final

disposition of the merits by granting summary judgment

on the basis of the factual record available at the preliminary injunction stage[,]” so long as the notice requirements of Rule 56 are met. Air Line Pilots Ass’n, Int’lr

v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 n.4 (9th Cir.

1990).

Summary judgment is properly granted sua sponte

as to a non-moving party when notice is given and there

is no genuine dispute of material fact. Lee v. Sixth Mt.

Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 (3d

Cir. 2018) (affirming sua sponte grant of summary judgment against a non-moving party where the district

court’s order providing notice specifically referenced

28a

Rule 56(f) and gave the parties an opportunity “to present all relevant arguments and evidence”). If a plaintiff

offers no explanation as to how it would benefit from further evidence or briefing, summary judgment is proper.

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 280

(3d Cir. 2010).

DISCUSSION & ANALYSIS

I.

Plaintiffs have not shown that a genuine dispute

of material fact exists that would preclude summary judgment on Count II.

Count II is clearly foreclosed by the Court’s prior

finding that there is no constitutional right to a releasesuitability determination as part of the Gagnon I hearing. This count concerned Defendants’ alleged mandatory detention policies, and was the clear focus of the

preliminary-injunction proceedings. As the Court previously noted, “While the Court has reviewed and considered the extensive evidentiary record, ultimately, the

motion before the Court is resolved almost entirely on

the law. At its core, Plaintiffs’ due-process claims essentially distill down to this question: are probationers entitled to an initial detention hearing and bail or release

determination when arrested for a probation violation?”

Horton v. Rangos, No. 22- 1391, 2023 WL 8865872, at *8

(W.D. Pa. Dec. 22, 2023) (Ranjan, J.). Based on that

question of law, the Court then concluded that well-settled Supreme Court decisions make clear that there is no

right to a release determination:

Plaintiffs contend that the federal and state constitutions require more protections than Allegheny County provides. But they are wrong under the well-settled Supreme Court precedents

of Morrissey and Gagnon. Due process as applied to probationers requires that an

29a

independent officer determine at the Gagnon I

hearing “whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute

a violation of parole conditions.” Morrissey v.

Brewer, 408 U.S. 471, 485 (1972). The probationer must be given notice of this hearing and

its purpose, and is permitted to speak and present exhibits or individuals to testify. Id. at 48687.

The hearing officer then determines

whether probable cause exists to hold the probationer until a final revocation hearing. Id. at

487. The final revocation hearing (the Gagnon

II hearing) is a “somewhat more comprehensive

hearing prior to the making of the final revocation decision.” Gagnon v. Scarpelli, 411 U.S.

778, 782 (1973). Nothing in these decisions requires that a probation officer or judge also

make a bail or release decision as part of the

Gagnon hearings. Indeed, Morrissey presumes

that so long as the procedures for the hearings

are satisfied, the probationer can be detained

with really no further inquiry or procedure at

all. Morrissey, 408 U.S. at 487 (“Such a [probable cause] determination would be sufficient to

warrant the parolee’s continued detention and

return to the state correctional institution pending the final decision.”).

Horton, 2023 WL 8865872, at *8-9.

Thus, the Court’s prior holding was premised fundamentally on a legal question. No additional discovery or

facts will change the Court’s legal determination. Summary judgment is therefore appropriate on Count II of

the complaint.

30a

II. Plaintiffs have not shown that a genuine dispute

of material fact exists that would preclude summary judgment on Count I.

The Court reaches the same conclusion as to

Count I. As part of the decision on the preliminary-injunction motion, the Court noted that it was unclear

whether Plaintiffs were bringing a standalone claim

that, irrespective of Defendants’ detention policies, they

nonetheless violated the basic procedures of Gagnon

(i.e., no notice of the hearing, no right to present evidence, no probable-cause determination at the Gagnon I

hearing, and excessive delays in scheduling the Gagnon

I and II hearings). Horton, 2023 WL 8865872, at *12

n.10. Out of an abundance of caution, the Court construed Count I as presenting standalone violations, and

then concluded that injunctive relief was not appropriate

because Defendants complied with procedures set forth

by Gagnon. Id. at *12.

In their response to the Court’s notice, Plaintiffs

make clear that they are, in fact, alleging a standalone

claim. See ECF 144, p. 8 (“despite the Court’s understanding to the contrary, Plaintiffs did bring a

standalone claim challenging Defendants’ failure to comply with Morrissey and Gagnon.” (cleaned up)). Assuming that to be the case,2 Plaintiffs haven’t raised a genuine dispute of fact for this claim to proceed.

Plaintiffs primarily argue that they need more discovery. The Court disagrees. The parties conducted discovery over an approximately four and a half-month

2

It’s still unclear to the Court whether such a claim has been

brought, or at least properly alleged. For example, all of the Defendants in this case are named solely due to their role in implementing detention policies and practices. ECF 1, ¶¶ 49-55.

31a

period. During that time, the Court ordered initial disclosures to be made, which should have captured virtually all of the relevant documents in this case. Beyond

that, the Court authorized discovery of 10 requests for

production and 20 hours of depositions per side. ECF 17.

The Court also considered and granted various requests

to modify the case management schedule along the way.

ECF 45; ECF 46; ECF 55; ECF 58; ECF 61.

According to Defendants, Plaintiffs’ counsel did not

utilize all of the authorized discovery. ECF 145, p. 7 n.7

(“Notably, Plaintiffs used only roughly one-third of the

time permitted for depositions[.]”). Such efficiency is

perfectly acceptable. But, notably, there is nothing to

suggest that Plaintiffs limited the scope of discovery to

issues and topics that were only relevant to Count II—

which was the focus of the complaint and most of the preliminary-injunction proceedings. Put differently, this

isn’t a case where there were specific topics of discovery

pertaining to Count I that were naturally severable—

the named Plaintiffs’ Gagnon proceedings would have

been discoverable and relevant to every issue in the

case. The exhibits, testimony, and briefing associated

with the preliminary-injunction hearing bear this out.

Perhaps more importantly, the relevant discovery

here is largely within Plaintiffs’ control. For example,

the named Plaintiffs know when they were arrested;

they know when their Gagnon I and Gagnon II hearings

were held; they know whether charges in separate

newly filed cases contributed to delays; and they know

about their communications with their own criminal defense lawyers. Plaintiffs haven’t come forward with any

documents or declarations to show that there was excessive delay before the Gagnon I hearings; that their lawyers were unable to put on a case at the Gagnon I hearing; that the hearing officers did not make the requisite

32a

probable-cause findings; and that Defendants refused

probationer counsel’s requests for a Gagnon II hearing.3

Nor do Plaintiffs explain any disputes with the exhibits

in this case that reflect, among other things, that Plaintiffs had their Gagnon I hearings within about a month

(usually less) of being arrested; and that the hearing officers completed the forms establishing the existence of

probable cause. Plaintiffs’ Exs. 6, 7, 8, 9, 15, and 16

(named Plaintiffs’ declarations setting forth the dates of

their arrests); Def. Exs. 15, 16, 17, 18, 19, and 20 (Gagnon I forms indicating a finding of probable cause as to

each named Plaintiff).

Finally, Plaintiffs are correct in noting that the

Court, in denying the motion for preliminary injunction,

mentioned that the preliminary-injunction record was

not fully developed on whether probationers’ lawyers

made strategic decisions during the Gagnon hearings,

such as opting not to contest probable cause or to delay

holding the Gagnon II hearing to negotiate a more favorable plea agreement. Horton, 2023 WL 8865872,

at *13. But that doesn’t mean that there are genuine disputes of material fact on those issues. If there were

a genuine dispute of material fact concerning those issues, the Court expected Plaintiffs to come forward with

facts in response to the notice of intent to enter summary

judgment. ECF 140 (Court’s Order, indicating intent to

enter summary judgment) (citing Anderson, 621 F.3d at

280); Forrest, 930 F.3d at 111 (“The purpose [of giving

3

Plaintiffs had court watchers present at many Gagnon I hearings, and these court watchers confirmed that the probationers had

counsel present and had the ability to present evidence. Horton,

2023 WL 8865872, at *13 (“As evident from the court watchers’ testimony, the probationer and counsel are present at the hearing, are

able to put on evidence, and then the hearing officer makes a probable-cause determination.”).

33a

notice] is to give the losing party the opportunity to marshal all the evidence that would be used to oppose summary judgment.”).4 Plaintiffs did not do so.

In short, discovery was more than sufficient to capture the relevant information as to Count I, and from the

record before the Court and responses to the notice that

the Court issued, there are no genuine disputes of material fact to warrant allowing this claim to proceed.

III. The Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claims

(Counts III and IV).

The complaint alleges two companion state-law

claims, and the Court will decline to exercise supplemental jurisdiction over those claims.

District courts may exercise supplemental jurisdiction over state-law claims that are related to federal

claims. 28 U.S.C. § 1367. A district court may decline to

exercise supplemental jurisdiction, however, if it has dismissed all federal claims or if the claim raises a “novel or

complex issue of State law[.]” 28 U.S.C. § 1367(c)(1), (3).

Here, because the Court is granting summary judgment

on the federal constitutional claims, the Court will

4

The Court would expect that the named Plaintiffs, through

their counsel here, could have procured documents or information

directly from the probationers’ criminal attorneys without the need

to resort to formal discovery. “A client’s ownership of the contents

of his attorney’s file is a matter of state law.” In re Bounds, 443

B.R. 729, 733 (Bankr. W.D. Tex. 2010). In Pennsylvania, legal materials belong to the client. Maleski by Chronister v. Corp. Life Ins.

Co., 641 A.2d 1, 6 (Pa. Commw. Ct. 1994) (noting that attorney

“[n]otes and memoranda are part of the package of goods and services” to which the client has the right), opinion after grant of reh’g

sub nom. Maleski v. Corp. Life Ins. Co., 646 A.2d 1 (Pa. Commw.

Ct. 1994).

34a

decline to exercise supplemental jurisdiction over the

Pennsylvania constitutional claims.

Additionally, Plaintiffs contend that “no Pennsylvania court has decided what procedural or substantive

due process protections the Pennsylvania constitution

affords probationers at the Gagnon I stage, particularly

in light of the prolonged incarceration they will experience until the Gagnon II hearing.” ECF 144, p. 12. Because Plaintiffs’ claims raise a novel issue of state law,

that is another basis for the Court to decline to exercise

supplemental jurisdiction.

CONCLUSION

For these reasons, the Court will grant summary

judgment as to Counts I and II of the complaint, and decline to exercise supplemental jurisdiction over Counts

III and IV.5 A separate judgment order will issue.

DATED this 21st day of February, 2024.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

5

The pending motions for reconsideration filed by Defendants

(ECF 111, ECF 113, and ECF 114) will be denied as moot.

35a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

22-CV-1391-NR

DION HORTON, ET AL.,

Plaintiffs,

v.

JILL RANGOS, ET AL.,

Defendants.

Filed February 21, 2024

ORDER

AND NOW, this 21st day of February, 2024, in accordance with the foregoing Memorandum Opinion,

IT IS HEREBY ORDERED that summary judgment is ENTERED in favor of Defendants on Counts I

and II of Plaintiffs’ complaint (ECF 1). Further, the

Court declines to exercise supplemental jurisdiction

over Counts III and IV of Plaintiffs’ complaint pursuant

to 28 U.S.C. § 1367. As such, Counts III and IV are DISMISSED without prejudice.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

37a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

22-cv-1391-NR

DION HORTON, ET AL.,

Plaintiffs,

v.

JILL RANGOS, ET AL.,

Defendants.

Filed December 22, 2023

OPINION

J. Nicholas Ranjan, United States District Judge

This case is a putative class action brought by probationers in the Allegheny County, Pennsylvania court

system. Plaintiffs allege that the probation procedures

implemented by Allegheny County fall short of constitutional due-process requirements because when they

were arrested for probation violations, they should have

been—but were not—given a meaningful opportunity to

seek release from jail pending a final revocation determination.

Before the Court is Plaintiffs’ motion for a preliminary injunction. After extensive fact and expert discovery, several rounds of briefing, and a complete evidentiary record—which includes the live testimony of five

witnesses and exhibits submitted before, during, and after the April 18, 2023, injunction hearing—the motion is

ready for disposition. For the reasons that follow, the

38a

Court finds that Plaintiffs are not substantially likely to

succeed on the merits and so the Court will deny the motion on that basis.

FINDINGS OF FACT

The Court makes the following findings based on the

evidentiary record before it. This specifically includes

any undisputed allegations in the pleadings; the prehearing and post-hearing exhibits that were submitted

by the parties; the exhibits that were admitted into evidence at the preliminary-injunction hearing; and the testimony from the injunction hearing.1

The Parties

1. Plaintiffs are Dion Horton, Damon Jones, Craig

Brownlee, Rahdnee Oden-Pritchett, Tate Stanford, and

Elijah Bronaugh. They were all serving probationary

sentences imposed by judges in the Allegheny County

Court of Common Pleas. They were all charged and arrested for violating the terms of their probation. ECF 1,

¶¶ 40-48.

2. Several of them picked up new charges, which

gave rise to their probation violations and also led to separate criminal actions against them. Id., ¶¶ 40 (Mr. Stanford), 41 (Mr. Bronaugh), 42 (Mr. Horton), 44 (Mr. Jones),

46 (Mr. Brownlee).

3. The “County Defendants” are Judge Jill Rangos

in her capacity as the Administrative Judge of the

1

The parties dispute whether the Court may consider the expert declaration of Vincent N. Schiraldi, which was submitted by

Plaintiffs as pre-hearing Exhibit 23. ECF 121, pp. 8-10; ECF 128,

pp. 14-18. The Court has considered the declaration, but in light of

the other evidence presented, limits its consideration of the declaration to Mr. Schiraldi’s opinions pertaining to the impact that prolonged detention has on probationers generally.

39a

Criminal Division; Frank Scherer, the former Director

of Adult Probation and Parole of Allegheny County; and

Orlando Harper, the former Warden of the Allegheny

County Jail. Id., ¶¶ 49-52.

4. The “Judicial Defendants” are Allegheny Court

of Common Pleas Judges Anthony Mariani and Kelly

Bigley. Id., ¶¶ 53-54.

5. The “Hearing Officer Defendants” are Charlene

Christmas, Robert O’Brien, Stephen Esswein, and Renawn Harris. They are probation officers with Allegheny County and aspects of their jobs have included

conducting what are referred to as “Gagnon I” hearings.2 Id., ¶ 55.

The Gagnon hearings generally, and the County’s

Detainer Policy.

6. Once arrested for a probation violation, probationers remain incarcerated until they appear for a Gagnon I hearing, which usually occurs within two weeks of

the arrest. ECF 116, 10:21-24, 87:20-23; ECF 1, ¶ 10.

7. A hearing officer presides over the Gagnon I

hearing. ECF 1, ¶ 11.

2

As discussed below, a Gagnon I hearing is the initial preliminary hearing where the probationer is given notice of the charge,

and a hearing officer determines whether there is probable cause

that the probationer violated his probation. See Gagnon v. Scarpelli, 411 U.S. 778 (1973). If probable cause is found, then the probationer appears for the Gagnon II hearing, which, in Allegheny

County, is before a judge. Deposition of Frank Scherer (Scherer

Dep.), Def. Ex. 6, 23:8-17. The Gagnon II hearing typically provides

a probationer a more fulsome opportunity to defend against the

charges, before a judge determines whether a violation was committed and, if appropriate, imposes a sentence for that violation. See

ECF 116, 95:8-14.

40a

8. Hearing officers are employed by Allegheny

County Adult Probation and Parole and are neither

judges nor attorneys. Id.

9. Hearing officers receive a copy of each probationer’s violation report the day before the Gagnon I

hearing. Deposition of Robert O’Brien (O’Brien Dep.),

Def. Ex. 7, 52:24-53:9.

10. Probationers are represented by counsel (usually county public defenders) at the Gagnon I hearings.

ECF 116, 12:8-11. But, for reasons that are unclear from

the record, sometimes those attorneys do not confer

with their clients in advance of the Gagnon I hearings.

Id., 12:10-22, 89:10-12.

11. At the Gagnon I hearings, the probationers are

informed of the charge against them. Id., 12:24-13:7

12. Probationers are given the opportunity to speak

at the Gagnon I hearings, even without being formally

called as a witness. Id., 68:11-13.

13. Probationers’ counsel also can speak, and present evidence. O’Brien Dep., Def. Ex. 7, 170:6-10.

14. Gagnon I hearings can be relatively short, and

generally may last between two and 20 minutes, but that

may also depend on the specific hearing officer who conducts the hearing. ECF 3-1, Ex. 3 at ¶ 9; O’Brien Dep.,

Def. Ex. 7, 74:17-75:3 (“[M]y hearings go long … I’m very

confident of that.”).

15. Hearing officers fill out a form after the Gagnon I hearing that memorializes whether they have determined that probable cause exists that the probationer

has violated his or her probation. Plaintiffs’ Ex. 19.

16. With respect to the probable-cause determination, the hearing officer can make several findings,

41a

including whether probable cause has been established,

whether it has not been established, and when the Gagnon II hearing should be scheduled. Id.

17. In addition to the probable-cause determination,

the hearing officers may make recommendations as to

whether a probationer should be released pending the

Gagnon II hearing (i.e., that the probationer’s probation

detainer should be lifted). This decision is guided by

a formal Detainer Policy, among other policies. Id.

18. The Detainer Policy was made effective November 20, 2019, and was approved by Judge Rangos, as the

administrative judge, and Mr. Scherer, as the then-director of probation. Detainer Policy, Def. Ex. 3, p. 1.

19. In 2018, the Adult Probation Office engaged in a

Safety and Justice Challenge, which was a program to

reduce the length and number of probation detainers.

Declaration of Alan Pelton (Pelton Decl.), Def. Ex. 1,

¶¶ 12-13.

20. The Adult Probation Office instituted the Detainer Policy in collaboration with the Safety and Justice

Challenge to “have a consistent practice in deciding

whether to lodge a detainer for a violation and to reduce

incarceration[.]” Id., ¶ 14.

21. The Detainer Policy provides the hearing officers with criteria to determine whether the probationer

should be detained pending the Gagnon II hearing. Detainer Policy, Def. Ex. 3, p. 1.

22. For example, under the Detainer Policy, the

probationer must be detained if he violated a zero tolerance or mandatory detention court condition, or he has a

new charge that represents a serious threat to public

safety. Id.

42a

23. Zero tolerance and mandatory court conditions

depend on the sentencing judge’s description of probation conditions; for example, a judge may impose as a

mandatory condition a “no victim contact” condition for

a domestic violence sentence. O’Brien Dep., Def. Ex. 7,

99:21-100:16.

24. That said, it is somewhat rare for zero-tolerance

conditions to be imposed by sentencing judges. Pelton

Decl., Def. Ex. 1, ¶ 37 (“As of April 4, 2023, there were

399 probationers with zero tolerance sentencing conditions, which is approximately 4% of total supervision

population.”).

25. For other violations (i.e., “lower-level technical

violations” and “arrests for non-violent offenses”), the

Detainer Policy instructs the hearing officer to exhaust

non-custodial options, such as halfway houses, treatment

facilities, and release on electronic monitoring. Detainer

Policy, Def. Ex. 3, p. 1.

26. The hearing officers then, based on the Detainer

Policy, make a recommendation as to release on the violation report form: (1) lift detainer; (2) remain detained;

(3) transfer to alternative housing; or (4) recommend for

the Drug and Alcohol Diversion Program. O’Brien Dep.,

Def. Ex. 7, 62:2-10.

27. Hearing officers may, in some instances, base

their recommendation on the nature of the charges,

without as much emphasis placed on the underlying facts

giving rise to the charge. Id., 157:5-158:13.

28. Hearing officers can keep a probationer detained after the Gagnon I hearing, but, if that occurs, under the Detainer Policy, the judge is notified of that decision. Deposition of Frank Scherer (Scherer Dep.),

Def. Ex. 6, 102:14-17.

43a

29. If a judge disagrees with the hearing officer’s

recommendation, the judge will notify the probation office through the court liaison. Id., 156:15-158:17.

30. A judge must sign off on every request to lift or

transfer a detainer. Id., 102:4-13.

31. Two particular judges (Judges Bigley and Mariani) allegedly have their own “no lift” policies, where

they have informed the hearing officers that detainers

shouldn’t be lifted for any probation violations. O’Brien

Dep., Def. Ex. 7, 112:5-12; Scherer Dep., Def. Ex. 6,

96:16-97:1.

32. While Defendants contest whether there is such

a no-lift policy for Judges Bigley and Mariani, the statistics bear out that these judges rarely lift detainers, and

it appears that these judges, at a minimum, have a routine practice to not lift detainers when a probationer has

been arrested on a warrant. O’Brien Dep., Def. Ex. 7,

112:13-16, 127:11-25; Scherer Dep., Def. Ex. 6, 159:5161:8.

33. Judge Mariani lifts probation detainers in approximately 6 percent of cases. ECF 116, 77:22-78:5.

34. Judge Bigley lifts probation detainers in approximately 3.7 percent of cases. Id., 78:1-2, 6-7.

35. That said, overall, in Allegheny County, detention appears to be the exception rather than the rule. As

of April 4, 2023, just 6% of people being supervised by

Adult Probation in Allegheny County were detained in

the Allegheny County Jail or alternative housing sites in

the county.

Declaration of Sanjeev Baidyaroy

(Baidyaroy Decl.), Def. Ex. 2, Exhibit 1, p. 2.

44a

36. As of April 4, 2023, 2,308 people on probation

had new pending criminal charges and only 510 of them

were detained. Id.

Plaintiffs’ Gagnon I hearings and court watcher

observations

37. In addition to the declarations that were filed,

two Plaintiffs and two court watchers testified at the

preliminary-injunction hearing, and the Court makes additional findings based on that testimony.

38. While on probation, Plaintiff Tate Stanford was

arrested in September 2022 for possession of a firearm

and having marijuana. ECF 116, 8:25-9:5, 10:4-5.

39. Mr. Stanford had a Gagnon I hearing approximately two weeks after his arrest. Id., 10:21-24.

40. In Mr. Stanford’s opinion, he was not able to prepare for his hearing because he only received notice of it

right before it happened. Id., 10:25-11:2, 11:12-17.

41. There was a hearing officer, a public defender,

and a probation officer at Mr. Stanford’s hearing, but he

was not able to speak with the public defender before or

after the hearing. Id., 12:10-22.

42. At the hearing, the hearing officer read

Mr. Stanford’s pending charges and told him that he

would be detained because he was supervised by Judge

Mariani. Id., 12:23-13:7.

43. Mr. Stanford’s Gagnon I hearing lasted three to

five minutes. Id., 14:20-21.

44. Mr. Stanford was not initially detained pending

his Gagnon II hearing; rather, at some point, he was released to a halfway house. Id., 15:5-8.

45a

45. However, Mr. Stanford was ultimately re-arrested and detained at the Allegheny County Jail because he got into a verbal altercation while staying at the

halfway house. Id., 16:6-10.

46. At some point, Mr. Stanford’s counsel filed a motion to lift his probation detainer. Id., 33:13-15.

47. Mr. Stanford remained detained, but it appeared that was the case because he was waiting on an

opening at an in-patient substance-abuse treatment facility. Id., 18:18-23, 33:24-35:5.

48. Mr. Stanford’s criminal defense attorney did not

testify at the preliminary-injunction hearing.

49. Plaintiff Rahdnee Oden-Pritchett was also on

probation when he was arrested for burglary, criminal

trespassing, simple assault, and a PFA violation. Id.,

86:22-87:4.

50. Mr. Oden-Pritchett’s Gagnon I hearing was held

around 12 days after his arrest, and he received no advance notice before the hearing; he was simply brought

to the “video call room.” Id., 87:20-88:3.

51. Mr. Oden-Pritchett was not able to meet with

the public defender before his Gagnon I hearing.

Id., 89:10-12.

52. At the hearing, the hearing officer told

Mr. Oden-Pritchett that he would be detained pending

the outcome of his charges. Id., 89:24-90:11.

53. Mr. Oden-Pritchett’s Gagnon I hearing lasted

“probably not even five minutes.” Id., 91:17-20.

54. Mr. Oden-Pritchett’s counsel discussed with him

the possibility of filing a motion to lift his probation detainer, but it appears counsel did not do so for strategic

reasons. Id., 96:10-17.

46a

55. After Mr. Oden-Pritchett’s new criminal case

resolved, he had his Gagnon II hearing, and reached an

agreement of time served on his probation violation.

Id., 93:15-95:10.

56. Mr. Oden-Pritchett’s criminal defense attorney

did not testify at the preliminary-injunction hearing.

57. The court watch program at the Abolitionist

Law Center trains volunteers, referred to as court

watchers, to watch court proceedings, including Gagnon

I hearings, and record their observations. Id., 39:18-41:1.

58. Dr. Redcross, who observed many Gagnon I

hearings, testified that, in her opinion, the probationers

were not truly heard at the hearings. Id., 44:10-15.

59. Dr. Redcross further testified that when a probationer tried to explain themselves, at the hearing,

they were often not allowed to fully explain themselves.

Id., 45:5-11.

60. Dr. Redcross testified that she “felt that people

were not being listened to.” Id., 45:21-22.

61. Dr. Redcross testified that the probationer’s

public defender would also sometimes speak at the Gagnon I hearing. Id., 57:10-12.

62. Dr. Redcross wasn’t privy to the materials that

the hearing officer had; she is not an attorney; and did

not have knowledge of whether defense counsel strategically were opting not to contest probable cause or otherwise put on a more fulsome case at the Gagnon I hearings. Id., 56:13-15, 51:20-24, 54:4-55:7, 48:17-23 (“I have

never seen the chart the probation officer is going by.”).

63. Emma Fenstermaker, a volunteer court

watcher, testified that at the Gagnon I hearing, “the

hearing officer would read the charges, either they

47a

would read the charges or pass it off to the probation officer to read the charges, and then the public defender

would make arguments or they are supposed to make arguments in favor of the defendant, and then the defendant would be given a chance to speak.” Id., 60:4-9.

64. Ms. Fenstermaker also testified that the probationers were allowed to speak at the hearing, although

sometimes the hearing officer would stop them from

speaking if they spoke for more than a few minutes.

Id., 60:12-21.

65. Ms. Fenstermaker wasn’t privy to the materials

that the hearing officers had before them, and she also is

not an attorney. Id., 67:17-68:4, 66:5-9.

Impact of prolonged detention on Plaintiffs

66. Plaintiffs were impacted in various ways by

their detention. Mr. Stanford no longer has a stable

housing situation to return to—he had been living with

a roommate but does not know if that space is still available. Id., 18:24-19:8.

67. Mr. Stanford has also lost government assistance, he has been unable to pay his bills, and his relationships with his family and loved ones has been

strained. He is worried about his younger sister because

his mother, who is his sister’s primary caretaker, has

brain cancer. Id., 19:25-20:13.

68. Mr. Stanford has also experienced a worsening

of his mental health because of his incarceration.

Id., 20:16-22:13.

69. Mr. Oden-Pritchett also lost an opportunity for

housing, had to drop out of school, missed important moments with his children, and experienced a worsening of

48a

a medical condition (psoriasis) and his mental health.

Id., 97:20-103:10.

70. Plaintiff Craig Brownlee was detained between

his Gagnon I and Gagnon II hearings. Declaration of

Craig Brownlee (Brownlee Decl.), Plaintiffs’ Ex. 8, ¶¶ 34.

71. Due to Mr. Brownlee’s detention, he was unable

to spend time with is four-year-old son. While his son

does not live with him, Mr. Brownlee sees him frequently and not being able to spend that time together

has been hard for both of them. Id., ¶ 8.

72. Mr. Brownlee also has an elderly mother who relies on him to help with shopping for food, so his detention negatively impacted her life, as well. Id., ¶ 9.

73. Plaintiff Dion Horton’s medication was unexpectedly stopped during his detention. Declaration of

Dion Horton (Horton Decl.), Plaintiffs’ Ex. 6, ¶ 15.

74. Mr. Horton also had to have a tooth pulled because a root canal was not available at the jail. Id., ¶ 14.

75. Mr. Horton also missed the birth of his second

child. Id., ¶ 8.

76. Plaintiff Damon Jones lost his housing, his possessions, and his ability to receive demolition and cleaning jobs due to his detention. Declaration of Damon

Jones (Damon Decl.), Plaintiffs’ Ex. 7, ¶¶ 13, 15.

77. More generally, there is little doubt that detention can disrupt probationers’ lives. It can cause loss of

employment, disruption to family relationships, and disruption to treatment. Declaration of Vincent Schiraldi

(Schiraldi Decl.), Plaintiffs’ Ex. 23, ¶ 37.

49a

78. Detention also has the potential to increase recidivism and can result in lost wages and increase poverty. Id., ¶¶ 39, 41.

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint and motion for preliminary injunction on October 2, 2022. ECF 1; ECF 2.

The complaint sets forth four counts: Right to Procedural Due Process Under the Fourteenth Amendment

to the United States Constitution (Count I), Right to

Procedural and Substantive Due Process Under the

Fourteenth Amendment to the United States Constitution (Prolonged Detention) (Count II), Right to Procedural Due Process Under the Pennsylvania Constitution

(Count III), and Right to Procedural Due Process Under

the Pennsylvania Constitution (Prolonged Detention)

(Count IV). ECF 1.

Defendants filed motions to dismiss. ECF 49; ECF

62; ECF 64. On April 14, 2023, the Court denied the motions, rejecting Defendants’ procedural challenges.

ECF 104. With respect to Defendants’ arguments that

the complaint failed to state a claim and that they were

entitled to immunity, the Court found that the record

was not yet developed to decide those issues, and so denied relief on that basis, but without prejudice to re-raising those arguments at a later stage. Id.3

Pursuant to the Court’s case management order, as

modified, the parties engaged in extensive fact and expert discovery for two months. The Court then held a

one-day evidentiary hearing on Plaintiffs’ preliminaryinjunction motion on April 18, 2023. ECF 106; ECF 116.

3

Defendants filed motions for reconsideration of the Court’s

denial of their motions to dismiss, which remain pending. ECF 111;

ECF 113; ECF 114.

50a

Prior to the hearing, the parties submitted 52 exhibits to

the Court. During the hearing, the Court heard evidence and testimony from five witnesses, followed by

oral argument from counsel. ECF 116. Following the

hearing, the parties filed supplemental briefs supporting

and opposing the preliminary-injunction motion, which

included additional exhibits. ECF 121; ECF 126;

ECF 127; ECF 128; ECF 130; ECF 131; ECF 132.

LEGAL STANDARD

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that

he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.”

Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (citations

omitted). Under Third Circuit precedent, “a movant for

preliminary equitable relief must meet the threshold for

the first two ‘most critical’ factors: it must demonstrate

that it can win on the merits … and that it is more likely

than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court

then considers the remaining two factors[.]” Reilly v.

City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017), as

amended (June 26, 2017). “The decision to grant or deny

a preliminary injunction is within the sound discretion of

the district court.” Ass’n of New Jersey Rifle & Pistol

Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106,

114 (3d Cir. 2018) (citation omitted). However, preliminary-injunctive relief is an “extraordinary remedy” that

“should be granted only in limited circumstances.” Kos

Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.

2004) (cleaned up).

To begin its analysis, the Court must first determine

if any injunction issued would be mandatory or

51a

prohibitory. C.G. by & through P.G. v. Saucon Valley

Sch. Dist., 571 F. Supp. 3d 430, 439 (E.D. Pa. 2021). “A

prohibitory injunction, the more common type, maintains the status quo until a decision on the merits of a

case is rendered.” Id. at 438 (cleaned up). A mandatory

injunction “alters the status quo by commanding some

positive action or providing the moving party with substantially all the relief sought and that relief cannot be

undone even if the defendant prevails at a trial on the

merits.” Id. (cleaned up).

This distinction matters because it affects the burden that plaintiffs must meet to show a likelihood of success on the merits. Id. at 439. “For a prohibitory injunction, the moving party must show that his or her likelihood of success on the merits are significantly better

than negligible but not necessarily more likely than not.”

Id. (cleaned up). By contrast, for mandatory injunctions, a heightened standard applies. Hope v. Warden

York Cnty. Prison, 972 F.3d 310, 320 (3d Cir. 2020). For

that relief, the moving party must show “a substantial

likelihood of success on the merits and that their right to

relief is indisputably clear.” Id. (cleaned up).

Here, the proposed order to Plaintiffs’ preliminaryinjunction motion clearly establishes that the injunction

they seek is mandatory. The order asks for the Court to

impose a new set of Bail Reform Act-type procedures on

Allegheny County that would be aligned with what federal courts do. ECF 121-1.4 This fundamentally alters

4

The full text of Plaintiffs’ proposed order is as follows:

It is hereby ORDERED that County Defendants are enjoined

from detaining at the Allegheny County Jail any putative mandatory detention subclass member who has been arrested for an alleged violation of probation and who has not received, at a minimum,

the procedural and substantive safeguards delineated below. For

52a

the status quo. As such, the heightened standard of review applies.

purposes of the subclasses, “mandatory detention” refers to circumstances in which individuals are automatically detained because

they 1) are accused of violating a zero tolerance condition of probation; 2) are supervised by Judge Mariani or Judge Bigley; or 3) are

accused of a new charge “that represents a serious threat to public

safety.”

A. Substantive Standard. No person may be detained

pending their Gagnon II hearing pursuant to a mandatory detention

policy or practice. Putative mandatory detention subclass members

may not be detained unless a judicial officer has made a finding, accompanied by all procedural requirements in subsection B of this

order, that 1) probable cause exists to believe that they violated

their probation, and 2) no condition or combination of conditions of

release will reasonably protect the safety of the community or ensure that the person returns to court.

B. Procedural Requirements. In order to determine

whether a person’s ongoing detention is necessary in accordance

with the standard above, the person must be given a meaningful,

individualized hearing within a reasonable time period after arrest

that includes:

1. Representation by counsel;

2. Notice to the individual of the purpose of the hearing;

3. A neutral and detached decision-maker, i.e., a judicial

officer;

4. The opportunity to be heard and present evidence;

5. The opportunity to rebut evidence presented by Probation;

6. Factual findings on the record, including a statement

of reasons for the outcome, including a) the necessity of

detention in relation to the State’s compelling interests

(i.e., protecting community safety and against non-appearance); and b) the least restrictive conditions of release

that will reasonably protect community safety and ensure

return to court.

ECF 121-1.

53a

DISCUSSION & ANALYSIS

I.

Plaintiffs cannot demonstrate a substantial

likelihood of success on the merits of their

claims because there is no constitutional right

to an initial detention determination.

Plaintiffs’ sole claim is essentially that federal and

state due process requires that once they were arrested

for probation violations, they should have been given,

but were not, a meaningful opportunity to seek release

from jail pending a final revocation determination.

While the Court has reviewed and considered the

extensive evidentiary record, ultimately, the motion before the Court is resolved almost entirely on the law. At

its core, Plaintiffs’ due-process claims essentially distill

down to this question: are probationers entitled to an initial detention hearing and bail or release determination

when arrested for a probation violation?

In federal court, that is certainly the standard. Under Federal Rule of Criminal Procedure 32.1, a federal

probationer is arrested, afforded counsel, and brought

before a federal magistrate judge, for an initial appearance, probable-cause determination, and individualized

detention determination. On the question of detention,

the magistrate judge must weigh the relevant factors

under the Bail Reform Act, and can only order the probationer detained if the judge finds by “clear and convincing evidence that the person will not flee or pose a

danger to any other person or to the community rests

with the person.” Fed. R. Crim. P. 32.1(a)(6). The magistrate judge makes the appropriate findings on the record, and then the district judge—typically after consultation with counsel—will promptly schedule a final revocation hearing. Fed. R. Crim. P. 32.1(b).

54a

This is the precise procedure that Plaintiffs now ask

the Court to impose as a form of injunctive relief, but applicable to state-court probationers in Allegheny

County. ECF 121-1.

Currently, the procedure for probationers in Allegheny County is different than the one in federal courts.

In Allegheny County, once a probationer is detained, he

or she is afforded counsel and then brought before an independent probation hearing officer. That probation

hearing officer determines whether there is probable

cause for the violation (though the parties dispute how

thorough that determination is). The hearing officer also

makes certain detention/release decisions, based on the

probation office’s Detainer Policy.

For example, under that policy, certain offenses are

deemed to be “zero tolerance,” and so those probationers

will be automatically detained pending the final hearing.

For lower-level technical offenses and substance-abuse

violations, the hearing officer looks to non-custodial options. Two judges (Judges Bigley and Mariani) allegedly

have their own separate “no lift” policies, where they

have informed the probation office that detainers

shouldn’t be lifted for probation violations. After this initial hearing, the probationer may remain detained, and,

based on mostly strategic decisions of counsel, counsel

confers with the trial judge for scheduling the final hearing. Detainer Policy, Def. Ex. 3.

Plaintiffs contend that the federal and state constitutions5 require more protections than Allegheny

5

The parties’ briefing focuses exclusively on federal law, and

no party has argued that the Pennsylvania state constitution provides greater or lesser rights. As such, the Court finds that the dueprocess rights guaranteed by the Pennsylvania Constitution as applied in this case are co-extensive with those under the U.S.

55a

County provides. But they are wrong under the wellsettled Supreme Court precedents of Morrissey and

Gagnon.

Due process as applied to probationers requires that

an independent officer determine at the Gagnon I hearing “whether there is probable cause or reasonable

ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” Morrissey v. Brewer, 408 U.S. 471, 485 (1972).

The probationer must be given notice of this hearing and

its purpose, and is permitted to speak and present exhibits or individuals to testify. Id. at 486-87. The hearing

officer then determines whether probable cause exists

to hold the probationer until a final revocation hearing.

Id. at 487. The final revocation hearing (the Gagnon II

hearing) is a “somewhat more comprehensive hearing

prior to the making of the final revocation decision.”

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).

Nothing in these decisions requires that a probation

officer or judge also make a bail or release decision as

part of the Gagnon hearings. Indeed, Morrissey presumes that so long as the procedures for the hearings are

satisfied, the probationer can be detained with really no

further inquiry or procedure at all. Morrissey, 408 U.S.

at 487 (“Such a [probable cause] determination would be

sufficient to warrant the parolee’s continued detention

and return to the state correctional institution pending

the final decision.”).

Constitution. See Tulp v. Educ. Comm’n for Foreign Med. Graduates, 376 F. Supp. 3d 531, 539 n.3 (E.D. Pa. 2019) (“Pennsylvania law

generally treats the Due Process Clause of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution

as coextensive.” (cleaned up)).

56a

Plaintiffs here essentially ask the Court to create a

new right, by layering onto the Gagnon hearings a right

to a bail-type or detention-type analysis, where a judge

or a hearing officer would consider risk of flight and danger to the community before making a determination to

release the probationer pending a final hearing. Similar

arguments have been tried before, and courts have rejected them

For example, in Faheem-El v. Klincar, the Seventh

Circuit held “that due process does not require that parolees receive a bail hearing conducted by a judicial officer prior to the conclusion of the revocation proceedings.” 841 F.2d 712, 723-24 (7th Cir. 1988). In that context, the court found that the state’s compelling interest

in regulating parole outweighed the parolee’s liberty interest. Id. at 724. The court did not, however, decide

whether due process required some other type of release-suitability hearing, such as by a probation or parole hearing officer or as part of the revocation hearings.

Id. at 727. But the Southern District of New York recently did. Roberson v. Cuomo, 524 F. Supp. 3d 196, 203

(S.D.N.Y. 2021), vacated and remanded on other

grounds sub nom. Roberson v. Hochul, No. 21-877, 2022

WL 19224518 (2d Cir. Sept. 27, 2022).

In Roberson, the court explained that a release-suitability hearing, even by parole officials, would not “add

value [to] existing procedures” that were already had in

place for parolees. Id. In assessing the parolees’ dueprocess claim under the familiar Mathews balancing test,

the court concluded that the risk of an erroneous deprivation (i.e., a parolee being wrongly accused of a violation) would not be mitigated by a release determination.

The court stated:

57a

A parolee’s suitability for release—which Plaintiffs have couched in terms of flight risk and

public safety risk—has little to no bearing on

whether s/he violated a condition of parole… In

other words, the ‘process’ Plaintiffs assert is

‘due’ to parolees whose liberty interest is conditioned on their compliance with parole rules

does not track that condition. Thus, it adds no

value to the relevant inquiry, which is whether

a parolee violated parole.

Id. at 210 (cleaned up). The court further found that the

government “has a strong public interest in ensuring

that persons who are released on parole [and probation]

comply with the conditions of their release, and in protecting society from those who will not.” Id. at 211.

The Court finds both Faheem-El and Roberson persuasive in this case.6 As in Faheem-El, the Court concludes that there is no due-process right to a judge making an individualized release decision at the Gagnon I

hearing, which is what Plaintiffs request as part of their

proposed order for injunctive relief. And as in Roberson,

the Court concludes that there is similarly no due-process right to a hearing officer or some type of probation

official making such a release decision, based on an assessment of the Mathews factors, as was done by the

court in Roberson.

6

Although Faheem-El and Roberson both concerned parolees,

not probationers, the analysis applies equally to both groups, given

that probationers have the same conditional liberty interest as parolees. Gagnon, 411 U.S. at 782 (“Petitioner does not contend that

there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor

do we perceive one.”).

58a

Plaintiffs attempt to get around these cases by arguing that other Supreme Court decisions have layered

onto Morrissey and Gagnon a constitutional right to a

bail-like or release-suitability determination. But the

decisions that they cite7 are inapposite because they

arise in a materially different context, or do not go as far

as Plaintiffs here suggest. A few points about those

cases.

First, the cited decisions, for the most part, arise in

the pre-trial detention context.8 That is significant, of

course, because pre-trial detainees have a complete liberty interest, not a conditional one, like a probationer.

Morrissey, 408 U.S. at 480 (“Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty

properly dependent on observance of special parole restrictions.”). Moreover, the purposes of probation are

very different. At the pre-trial stage, considerations of

risk of flight and danger to the community are more important. At the probation-revocation stage, while those

interests might be relevant, the government’s primary

interests concern supervision and rehabilitation, and

thus require that the probation officer and supervising

judge have much more decision-making flexibility than

7

Zadvydas v. Davis, 533 U.S. 678 (2001); Kansas v. Hendricks,

521 U.S. 346 (1997); Foucha v. Louisiana, 504 U.S. 71 (1992); United

States v. Salerno, 481 U.S. 739 (1987); Schall v. Martin, 467 U.S. 253

(1984); Bell v. Wolfish, 441 U.S. 520 (1979); Jackson v. Indiana, 406

U.S. 715 (1972).

8

The one cited case that did not involve pre-trial detention is

Zadvydas, which involved post-removal detention of aliens. The

Court finds that this case is still inapposite, as the issue there centered exclusively on whether the statute at issue allowed for unlimited and potentially permanent detention of an alien. Zadvydas, 533

U.S. at 690.

59a

in a pre-trial setting where courts are dealing with defendants who are presumed innocent. Roberson, 524

F. Supp. 3d at 211; see also Ross v. Young, 736 F. Supp.

1525, 1527 (E.D. Mo. 1990) (concluding that a Missouri

statute that “blanketly deni[ed] bail to parolees arrested

for alleged parole violations” did not violate due process).

Second, the cited cases concerned challenges to statutes that prescribed when detainees could and couldn’t

be released. See Zadvydas, 533 U.S. at 699 (holding that

Immigration and Nationality Act did not authorize indefinite or permanent detention of aliens subject to removal); Hendricks, 521 U.S. at 357 (recognizing that a

Kansas statute only allowed civil commitment proceedings “when a person ‘has been convicted of or charged

with a sexually violent offense,’ and ‘suffers from a mental abnormality or personality disorder which makes the

person likely to engage in the predatory acts of sexual

violence.’” (quoting Kansas Sexually Violent Predator

Act, Kan. Stat. Ann. § 59-29a02(a)); Foucha, 504 U.S. at

78-79 (holding that Louisiana statute could not allow the

government to confine a person using civil commitment

if that person is not mentally ill); Salerno, 481 U.S. at

750-751 (holding that the Bail Reform Act properly balanced the liberty interests of pretrial detainees with the

government’s interest because pretrial detainees could

only be held after a showing that “an arrestee presents

an identified and articulable threat to an individual or

the community[.]”); Schall, 467 U.S. at 269-271 (upholding New York statute (FCA § 320.5) permitting pretrial

detention of juveniles after a showing that the juvenile

might commit further crimes); Bell, 441 U.S. 520 (upholding security restrictions for pretrial detainees);

Jackson, 406 U.S. at 729-730 (holding that Indiana statute subjecting certain inmates to a “more lenient

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commitment standard” and “more stringent standard of

release” violated the Fourteenth Amendment).

In each of those cases, the Supreme Court decided

whether the statutory release procedures and criteria

complied with due process. Some of those statutes set

forth criteria such as risk of flight and danger to the community as considerations in making release decisions.

Importantly, none of the decisions went so far as to mandate, in a vacuum, that detainees have a standalone right

to receive a release determination predicated on risk of

flight and danger to the community. Put differently, just

because the Supreme Court in Salerno, for example,

held that the procedures under the Bail Reform Act satisfied due process, it does not mean that the absence of

those procedures here offends due process.

Third, of all the cases Plaintiffs cite, this case is

probably closest to Schall, where the Supreme Court determined that, in the context of the juvenile system, the

state’s “combined interest in protecting both the community and the juvenile himself from the consequences

of future criminal activity” outweighed the juveniles’ liberty interest where pretrial detention was predicated on

a finding of “serious risk.” Schall, 467 U.S. 263-66. Likewise, in the probation context, “a person under sentence

for a conviction of a crime who cannot or will not follow

the rules [of probation] presents a danger to society

without more.” Roberson, 524 F. Supp. 3d 196 at 206.

This danger allows the state to detain probationers who

are suspected of violating their probation once the state

has made a probable-cause determination. The state’s

“overwhelming interest” in being able to return an individual to imprisonment if he has failed to abide by the

conditions of parole or probation, Morrissey, 408 U.S. at

483, outweighs any need for a bail-like determination.

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Finally, while the Court has held that there is no

right to a bail-like determination at the Gagnon I hearing, this doesn’t mean that Defendants have provided no

procedures to address release of probationers. Indeed,

Defendants have gone beyond the constitutional minimum in adopting the Detainer Policy. And the Court

finds as credible at least certain of the statistics showing

that detention is rare for probation violations, and that

non-detention alternatives are often sought. Baidyaroy

Decl., Def. Ex. 2, Exhibit 1, p. 2. This is also borne out

in some of the testimony at the injunction hearing concerning Plaintiffs—for example, while Mr. Stanford

complained about his prolonged detention, after he was

initially detained, he was released to a halfway house before he allegedly violated the rules and was then re-arrested. ECF 116, 15:3-5; 16:6-10. From the snapshot

that the Court has seen here, the application of the Detainer Policy reflects what the Supreme Court in Morrissey and Gagnon envisioned—a more flexible process

to account for the ups and downs of supervision and rehabilitation. Morrissey, 408 U.S. at 481 (“due process is

flexible and calls for such procedural protections as the

particular situation demands.”).9

9

In light of Morrissey and Gagnon, the Court finds that it need

not engage in a Mathews-type due-process analysis. But if the

Court were required to do so, it would find that the current procedures in place satisfy due process. Under Mathews, courts consider

three factors to determine “what process is due to an individual in a

particular circumstance: (1) the private interest that will be affected

by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards; and (3) the

Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Roberson, 524 F. Supp. 3d at

203. Here, Plaintiffs have a limited private interest due to their

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In sum, there is no federal or state constitutional

right that mandates the process that Plaintiffs now seek

with their preliminary injunction. Because of that, they

are not substantially likely to succeed on the merits, and

cannot meet the threshold requirement for obtaining

preliminary-injunctive relief.

II. Plaintiffs’ suggestions that the current Gagnon

hearings are inadequate also do not warrant injunctive relief.

The complaint makes clear that the claims in this

case focus on the mandatory detention policies in Allegheny County. However, in the course of the parties’

briefing and during the injunction hearing, there were

suggestions that Allegheny County fails to comply with

Morrissey and Gagnon for three reasons. To the extent

that Plaintiffs are making such a standalone claim,

though, the Court finds that it is unlikely to succeed on

the merits.10 The Court will discuss each of the claimed

“deficiencies,” in turn.

status as probationers, and their proposed procedural safeguards

would not add value to the procedures already in place, which already appear to result in low detention rates. Defendants’ interest

in probationers’ detention pending the Gagnon II hearing is substantial given the supervisory nature of probation. As to increased

administrative and fiscal burdens on Defendants, while the record

is not fully developed, in light of the number of probationers in the

Allegheny County system and the limited number of judges, it

would seem that Plaintiffs’ requested injunction (which includes an

individualized judicial determination as to release suitability at the

Gagnon I hearing) would create significant administrative and fiscal

problems.

10

As the Court understands it, Plaintiffs’ complaints about the

current Gagnon procedures are not standalone claims. It appears

that the theory is that the absence of some type of detention/release

process in conjunction with otherwise deficient Gagnon hearing

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First, Plaintiffs claim that they do not receive sufficient notice before the Gagnon I hearing, and that their

access to counsel is limited. ECF 116, 54:10-21. However, the evidence is clear that probationers are given

notice of the charges, at least at the hearing itself, which

comports with Morrissey and Gagnon.

Gagnon,

411 U.S. at 786; ECF 116, 12:23-13:1. Additionally, probationers are afforded counsel. While there was some

testimony at the injunction hearing indicating that certain probationers were not able to speak to their attorney before their Gagnon I hearings, ECF 116, 12:17-19,

there is no evidence before the Court that Defendants’

policies caused this, as opposed to something else, such

as the practices of the local public defender’s office. In

fact, Frank Scherer, the former Director of Adult Probation in Allegheny County, testified at his deposition

that individuals not having time to meet with their counsel is “not a probation issue” but “more of an issue for

the Public Defender’s Office.” Scherer Dep., Def. Ex. 6,

19:1-9. Significantly, no one from the Public Defender’s

Office testified during the injunction hearing.

Second, Plaintiffs allege the Gagnon I hearing is

perfunctory because no real evidence is presented, and

probationers do not have an opportunity to speak. At

the injunction hearing, the Court heard from multiple

court watchers, who were volunteers that observed

procedures creates or exacerbates a constitutional problem. But, as

discussed above, there is no constitutional right to a detention or

release decision at the Gagnon hearings. And if Plaintiffs are right

that the Gagnon hearings are deficient, that doesn’t mean that the

remedy would be to impose a new detention/release policy. Rather,

the remedy would be an injunction to order that Defendants comply

with Gagnon. Meyer v. CUNA Mut. Ins. Soc., 648 F.3d 154, 170

(3d Cir. 2011) (“injunctive relief should be no broader than necessary to provide full relief to the aggrieved party.” (cleaned up)).

64a

many Gagnon I proceedings. For example, Dr. Redcross

testified that “[o]ften, the defendants would try to explain” the facts of their new charges, “and those facts

would not be heard.” ECF 116, 44:14-15. In fact, she

testified that sometimes a probationer would be expressly told not to try to explain themselves. ECF 116,

45:5-11. But Dr. Redcross also testified that the probationer’s public defender would sometimes speak to the

facts of the new charges at the Gagnon I hearing and

that the hearing officer would respond. ECF 116, 57:1016.

Emma Fenstermaker, another court watcher, testified that at the Gagnon I hearing, “the hearing officer

would read the charges, either they would read the

charges or pass it off to the probation officer to read the

charges, and then the public defender would make arguments or they are supposed to make arguments in favor

of the defendant, and then the defendant would be given

a chance to speak.” ECF 116, 60:4-9. The proceeding

that Ms. Fenstermaker described is exactly the type of

proceeding contemplated in Morrissey and Gagnon.

As evident from the court watchers’ testimony, the

probationer and counsel are present at the hearing, are

able to put on evidence, and then the hearing officer

makes a probable-cause determination.11 Moreover, as

11

Overall, the Court views the court watchers’ testimony as

not entirely helpful on the issue of whether probationers were allowed to present a case related to whether probable cause exists,

which is the purpose of the Gagnon I hearing. Rather, it was clear

that the court watchers were observing the proceedings with an eye

toward the separate issue of whether probationers were given an

opportunity to present a case for suitability for release. Moreover,

the short duration of the hearings as noted by the court watchers is

also not really a sign of anything. Probationers are represented by

counsel. There may be strategic reasons why the Gagnon I hearings

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reflected in the record, the hearing officers fill out a form

that memorializes whether they have determined that

probable cause exists that the probationer violated his

or her probation—this is evidence that the officers are

doing what they are supposed to be doing. Plaintiffs’

Ex. 15 at p. 6.

Third, Plaintiffs argue that the length of time between the Gagnon I and Gagnon II hearings is impermissibly long. It certainly is possible that there could be

a due-process violation if a probationer is detained and

there is a long delay between the Gagnon I and Gagnon

II hearings. “The denial of due process caused by a delay

in a conducting a [Gagnon II] hearing requires a plaintiff

to establish that the delay was both unreasonable and

prejudicial.” Ray v. Thompson, No. 17-0608, 2021 WL

1565149, at *2 (E.D. Pa. Feb. 16, 2021) (collecting cases

discussing various lengths of detention before a Gagnon

II hearing as reasonable). The Court cannot tell on this

record whether the delay for Plaintiffs’ hearings (let

alone hearings for a putative class) was reasonable or

prejudicial, or even whether the delay was caused by

Defendants’ policies or lack thereof.

Indeed, it appears that sometimes the delay may be

by design of the parties. For example, Mr. Oden-Pritchett testified that his attorney advised him not to file a

motion to lift his probation detainer because his attorney

was hoping to be able to negotiate a plea deal for

Mr. Oden-Pritchett’s new charges. ECF 116, 115:12-23.

After Mr. Oden-Pritchett’s new charges were resolved

are short—e.g., defense counsel may not want to dispute probable

cause or put on evidence to avoid prejudicing the defendant at the

Gagnon II hearing or a hearing on any underlying criminal charges.

Again, no public defenders or criminal defense lawyers testified at

the injunction hearing.

66a

(through a plea), Mr. Oden-Pritchett was able to stipulate to a probation violation and receive credit for time

served between his Gagnon I and Gagnon II hearings.

Id. at 117:3-16. This is just one example of strategic decisions by counsel causing the delay, not Defendants’ policies.12

Thus, to the extent that Plaintiffs are attacking the

current hearing procedures as failing to comply with the

requirements of Gagnon, the Court finds that there is

insufficient evidence to support that claim and to warrant any injunctive relief.

III. The Court does not reach the remaining

injunction factors.

Because the Court has concluded that Plaintiffs are

unlikely to prevail on their claims, the Court need not

address the remaining injunction factors. Lack of likelihood of success on the merits is fatal to the motion.

Thomas v. Blocker, 799 F. App’x 131, 135 (3d Cir. 2020)

(affirming denial of motion for preliminary injunction after determining that plaintiff failed to show a likelihood

of success on the merits); In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) (“a failure

to show a likelihood of success or a failure to demonstrate irreparable injury, must necessarily result in the

denial of a preliminary injunction.”).

12

On the form that the hearing officers complete at the Gagnon

I hearing, they can schedule a Gagnon II hearing right away. Plaintiffs’ Ex. 19. No evidence was adduced as to why probationers’

counsel are unable to ask for the Gagnon II to be scheduled immediately and memorialized on that form.

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CONCLUSION

For the reasons above, the Court will deny Plaintiffs’ motion for preliminary injunction. An appropriate

order follows.

DATED this 22nd day of December, 2023.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

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APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

No. 22-CV-1391-NR

DION HORTON, et al.,

Plaintiffs,

v.

JILL RANGOS, et al.,

Defendants.

Filed December 22, 2023

ORDER

AND NOW, this 22nd day of December, 2023,

upon consideration of Plaintiffs’ motion for preliminary

injunction (ECF 2) and for the reasons stated in the foregoing Opinion, it is HEREBY ORDERED that the motion is DENIED.

Furthermore, as stated in the Court’s Opinion, the

Court has found, among other things, as a matter of law,

that no release-suitability determination is constitutionally necessary at the Gagnon I hearing, pursuant to Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v.

Scarpelli, 411 U.S. 778 (1973). As such, the Court intends to convert its decision on Plaintiffs’ motion for preliminary injunction to a decision on summary judgment,

as permitted under Fed. R. Civ. P. 65(a)(2) and Fed. R.

Civ. P. 56(f). Anderson v. Wachovia Mortg. Corp., 621

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F.3d 261, 280 (3d Cir. 2010) (“district courts are widely

acknowledged to possess the power to enter summary

judgments sua sponte, so long as the losing party was on

notice that she had to come forward with all of her evidence.” (cleaned up)); Yates Real Est., Inc. v. Plainfield

Zoning Bd. of Adjustment, 435 F. Supp. 3d 626, 646

(D.N.J. 2020) (converting preliminary injunction to summary judgment).1 Accordingly, it is hereby ORDERED

as follows:

1. By January 24, 2024, Plaintiffs may file a brief,

not to exceed 15 pages, showing cause why the Court’s

Opinion and this Order should not be converted into a

ruling granting summary judgment to Defendants.

2. By February 14, 2024, Defendants may file responding briefs, not to exceed 15 pages.

3. The parties may assume that the Court is familiar with the arguments made for and against preliminary-injunctive relief and shall not repeat them unnecessarily.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

1

The Court anticipates that the Third Circuit will likely review

this case at some point. Converting the preliminary-injunction decision to a final decision on the merits may also assist in streamlining

the matter for resolution before the Third Circuit.

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APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Case No. __

DION HORTON, DAMON JONES,

CRAIG BROWNLEE, RAHDNEE ODEN-PRITCHETT,

TATE STANFORD, AND ELIJAH BRONAUGH,

individually and on behalf of a class of

similarly situated persons;

Plaintiffs,

v.

JILL RANGOS, ADMINISTRATIVE JUDGE,

in her official capacity;

FRANK SCHERER, DIRECTOR OF

ADULT PROBATION AND PAROLE,

in his official capacity;

ANTHONY MARIANI AND KELLY BIGLEY,

COURT OF COMMON PLEAS JUDGES,

in their official and individual capacities;

CHARLENE CHRISTMAS, ROBERT O’BRIEN,

STEPHEN ESSWEIN, AND RENAWN HARRIS,

PROBATION HEARING OFFICERS,

in their official and individual capacities;

And ORLANDO HARPER,

in his official capacity.

Defendants.

72a

Filed October 2, 2022

COMPLAINT—CLASS ACTION

JURY TRIAL DEMANDED

STATEMENT OF THE CASE

1. This case is about hundreds of individuals, like

Plaintiff Dion Horton, who are jailed for months on end

without a lawful justification and with virtually no way

out.

2. Nearly eight months ago, Mr. Horton was jailed

after being accused of certain offenses. A judicial officer

ordered he could be released on an unsecured monetary

bond, meaning he could get out without an upfront payment. But because he happened to be on probation at

the time of his arrest, a probation detainer—or an order

prohibiting his release from jail—issued against him.

3. At a pro forma proceeding shortly after his arrest,

a bureaucrat from the probation department ordered

Mr. Horton to stay in jail with no explanation and with

no option to bond out.

4. Mr. Horton has not been found guilty of any

wrongdoing.

5. Mr. Horton’s unjustified incarceration has taken

a toll on him. He lost his job (and the ability to provide

for his family). He missed the birth of his child.

6. Mr. Horton has virtually no recourse. By virtue

of the probation detainer, he is trapped in jail. He has no

idea when he will regain his liberty.

7. Mr. Horton’s case is not an aberration. Probation

detainers are the single largest driver of incarceration at

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the Allegheny County Jail (ACJ). For people arrested

for violating probation in Allegheny County, detention

prior to a hearing on the merits of the alleged violation

is the rule rather than the exception.

8. On any given day over the last two years, roughly

one third of the people caged at the ACJ (or upwards of

600 people daily) have had a probation detainer lodged

against them.

9. Once arrested for violating probation, individuals

do not have a meaningful opportunity to obtain release.

The majority are forced to remain in jail until a final determination on the merits of the alleged violation—a period that lasts months or even years.

10. The decision to jail them for this duration is

made at a perfunctory proceeding (referred to as a “Gagnon I” proceeding) that occurs up to 14 days after their

arrest.1

11. Bureaucrats in the probation department—who

are neither judges nor lawyers— serve as hearing officers and preside over these proceedings (“Hearing Officers”).

12. Hearing Officers are supposed to determine

probable cause and whether arrested individuals should

remain detained until the final hearing on the merits of

their alleged violation of probation (the “Gagnon II”

hearing).

13. Gagnon I proceedings are cursory in nature. Despite the appearance of a hearing, they are devoid of

basic, constitutionally required procedural and substantive safeguards.

1

Gagnon v. Scarpelli, 411 U.S. 778 (1973).

74a

14. Individuals do not have an opportunity to consult with their assigned public defender before the proceeding. They have no opportunity to prepare a defense.

A probation officer reads the untested allegations

against the individual. A Hearing Officer makes a determination with little to no additional information; no witnesses or evidence are ever presented.

15. Hearing Officers do not consider, let alone find,

whether the individual’s incarceration is necessary to

protect the community or ensure their appearance in

court, as due process requires for prolonged incarceration.

16. Hearing Officers do not have ultimate authority

over the decisions they make during the Gagnon I proceedings. Instead, they issue recommendations to a judicial officer who has no first-hand knowledge of what

transpired. That officer then determines ex parte

whether to leave the detainer intact.

17. As a matter of course, these judicial officers rubber stamp detention decisions but scrutinize recommendations to lift the detainer or transfer it to alternative

housing (which would allow the individual to be detained

at an alternative housing facility rather than at the

ACJ).

18. Hearing Officers make their recommendations

based on a policy (approved by Administrative Judge Jill

Rangos and Director of Probation Frank Scherer on behalf of Allegheny County) that requires mandatory detention in some cases. In other words, no matter the particular facts of the alleged probation violation and no

matter any mitigating circumstances presented at the

Gagnon I proceeding, the Hearing Officer must recommend detention.

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19. The policy requires mandatory detention if an

individual is alleged to have violated a “zero tolerance”

condition of probation or “has a new charge that represents a serious threat to public safety.”

20. Hearing Officers rely on the “new charge” provision to circumvent any decision-making regarding the

necessity of detention. For specific offenses, based on

the type of charge alone, they require mandatory detention—frequently refusing to hear any facts regarding

what is alleged to have transpired.

21. In a similar vein, they refuse to lift detainers

where a zero-tolerance violation is alleged, typically

where the individual is accused of using of drugs or alcohol. Even drinking a single can of light beer has been

enough to trigger this provision in the past.

22. Based on instructions they receive from their

bosses (the judges), Hearing Officers treat the detainer

policy as a floor for mandatory detention decisions, systematically expanding its reach. Specifically, Hearing

Officers apply “no lift” policies required by Court of

Common Pleas Judges Anthony Mariani and Kelly

Bigley (“Judicial Defendants”), categorically refusing to

recommend a detainer lift for anyone supervised by

these judges.

23. In these cases, Hearing Officers typically also

refuse to recommend transferring the detainer to alternative housing.

24. Judge Rangos and Director Scherer sanction

this systematic expansion of the written detainer policy

through their inaction. Despite the policymaking authority that enabled them to issue the detainer policy,

they contend that they are not empowered to prohibit

Judicial Defendants’ no-lift policies.

76a

25. Because of the probation detainers, individuals

are jailed until their violation of probation proceedings

conclude. It does not matter whether a judicial officer

has authorized their release on a new charge that forms

the basis for the violation of probation. They are stuck.

26. In practice, it is nearly impossible to get the detainer lifted once a hearing officer recommends detention at the Gagnon I proceeding.

27. From the conclusion of the Gagnon I until

shortly before the Gagnon II, a period that can last

months or even years, individuals are not assigned a

public defender on their probation case. So, they have

no practical way to challenge their probation detainers,

aside from hiring a private attorney to file a motion to

lift a detainer on their behalf—which most cannot afford.

28. For those who can afford to hire an attorney, filing a motion to lift the detainer does not allow them to

avoid languishing in jail. Judges routinely delay ruling

on these motions, and often deny them without a hearing

or even an explanation.

29. As a result, over the last two years, an average

of 622 individuals per month (or 35% of the people caged

at the Allegheny County Jail) have had a probation detainer lodged against them.2 As of September 23, 2022,

2

This data comes from the Allegheny County Jail Population

Management Dashboard, which includes historical data regarding

numbers of people incarcerated at the jail and the type of hold they

were subjected to. See Current and Historical Holding Statuses,

ALLEGHENY COUNTY JAIL POPULATION MANAGEMENT DASHBOARDS, https://bit.ly/3SnUQMK (last visited Sept. 21, 2022). Plaintiffs retrieved jail population data from the last two years and computed the average.

77a

651 individuals were lodged on a detainer.3

30. Each is trapped in the jail for months on end before her Gagnon II proceeding.

31. Such incarceration would only pass constitutional muster if a judicial officer found that detention

pending the Gagnon II was necessary to prevent flight

risk or ensure public safety. Hearing Officers make no

such findings.

32. As has been widely reported, the Allegheny

County Jail has been a site of rampant human rights

abuses.

33. In recent years, the Allegheny County Jail has

been the subject of litigation regarding excessive force,

mistreatment of individuals with psychiatric disabilities,

poor conditions, and inadequate medical treatment.

34. The jail has also repeatedly been in the press for

its overuse of solitary confinement, chronic understaffing, and unsanitary conditions.

35. At least 17 people have died while in custody of

the Allegheny County Jail since April 2020.4

3

See Current Population Hold Types, ALLEGHENY COUNTY

JAIL POPULATION MANAGEMENT DASHBOARDS, https://bit.ly/3BCmzTc (last visited Sept. 23, 2022).

4

Brittany Hailer, Hours before he died, the Allegheny County

Jail released an incarcerated man with intellectual disability from

custody, PITTSBURGH INSTITUTE FOR NONPROFIT JOURNALISM

(Sept. 23, 2022), https://bit.ly/3fk3e1S (“Talotta is the 17th man to

die after entering the jail since the onset of the pandemic, the sixth

such death in 2022.”). According to local reporting, the jail does not

“count” deaths of incarcerated individuals who are transferred from

the jail to a hospital on medical release and die at the hospital. Brittany Hailer, Thirteen men died after going to the Allegheny County

Jail.

Here are their stories., PITTSBURGH INSTITUTE FOR

78a

36. At least five of them had a probation detainer

lodged against them when they died.5

37. On behalf of themselves, and all others similarly

situated, Plaintiffs seek a declaration that Defendants’

policies and practices violate their rights under the

United States and Pennsylvania Constitutions, an injunction against the continuation of these unconstitutional practices, and monetary compensation for the

harm they have suffered.

JURISDICTION AND VENUE

38. Plaintiffs bring this civil rights action under

42 U.S.C. § 1983, 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution.

This Court has subject matter jurisdiction under 28

U.S.C. § 1331 (federal question), 28 U.S.C. § 1367 (supplemental jurisdiction), and 28 U.S.C. § 2201 (Declaratory Judgment Act).

39. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 1391. A substantial part of

the events giving rise to the claims take place at the

Fifth Judicial District Courts and the Allegheny County

Jail in Pittsburgh, Pennsylvania.

NONPROFIT JOURNALISM (March 13, 2022), https://bit.ly/3BYef1r.

As such, 17 may be an undercount, and Allegheny County’s official

report of in-custody deaths is likely even lower. See id. This approach is of dubious validity under federal law. See Bureau of Justice Assistance, Death In Custody Reporting Act: Reporting Guidance and Frequently Asked Questions, U.S. DEPARTMENT OF JUSTICE (March 2022) at 5, https://bit.ly/3S6Si68.

5

Based on publicly available court records, this includes Robert Blake (May 24, 2020); Cody Still (Oct. 1, 2020); Paul Allen (Oct. 9,

2021); Gerald Thomas (March 6, 2022); and Ronald James Andrus

(Aug. 14, 2022).

79a

PARTIES

I.

Plaintiffs

Pre-Gagnon I Plaintiffs

40. Tate Stanford is a 22-year-old Black man. In

March of this year, Judge Anthony Mariani sentenced

him to a total of three years of probation. On or around

September 27, 2022, he was arrested for allegedly committing new offenses. A magistrate judge set a $2,000

bond on those charges. But a probation detainer was issued against him, precluding his release from jail. Five

days after his arrest, Mr. Stanford still does not know

when he will have his Gagnon I proceeding.

41. Elijah Bronaugh is a 23-year-old Black man who

was arrested on or around September 27, 2022, for allegedly committing offenses that include burglary and carrying a firearm without a license. A magistrate judge

set monetary bond at a total of $7,500, an amount

Mr. Bronaugh could manage to pay. But he was on probation at the time of his arrest, and he was lodged on a

detainer. Mr. Bronaugh has been jailed for about five

days and, as far as he is aware, his Gagnon I proceeding

has not yet been scheduled.

Post-Gagnon I Plaintiffs

42. Dion Horton is a 22-year-old Black man who has

been in jail since February 2022. He was arrested on two

new cases while on probation (including charges of firearm possession and aggravated assault). A magistrate

judge ordered his release on $5,000 unsecured bond in

each case, but he could not get out of jail because of

a probation detainer.

43. At Mr. Horton’s Gagnon I proceeding, which

lasted only a few minutes, the Hearing Officer read the

80a

charges and refused to lift the detainer because of the

nature of those charges. The Hearing Officer gave no

other reason for why he needed to be jailed, stating only

that Mr. Horton would have to stay in jail until his new

case resolved. Eight months later, Mr. Horton remains

in jail, with both his new case and Gagnon II still pending.

44. Damon Jones is a 23-year-old Black man who has

been in jail since February 2022. He was arrested on two

new firearms-related charges while on probation.

A magistrate judge set a $25,000 secured financial condition of release, and Mr. Jones managed to pay a nonrefundable fee to a bail agent to get out of jail. Two days

later, he was arrested for allegedly violating his probation.

45. At Mr. Jones’s Gagnon I proceeding, the Hearing Officer explained that the alleged probation violation

was based on Mr. Jones’s new charges. No one testified

about the charges and the Hearing Officer did not consider the facts of the case, or the fact that Mr. Jones had

been released from jail on those charges. The Hearing

Officer refused to lift the detainer based on the nature of

the new charges alone. The probation detainer is the

only reason Mr. Jones is still in jail, nearly eight months

after his arrest.

46. Craig Brownlee is a 51-year-old Black man who

was arrested on a violation of probation warrant after

being released from jail on a $10,000 unsecured bond on

the charges that formed the basis of the alleged violation. A probation detainer was issued against him. At

his Gagnon I proceeding, the Hearing Officer refused to

lift the detainer because Mr. Brownlee is supervised by

Judge Mariani.

81a

47. Rahdnee Oden-Pritchett is a 23-year-old Black

man. He was arrested in September of this year, and a

magistrate judge set a $10,000 bond. At the time of his

arrest, he was on probation supervised by Judge Kelly

Bigley. Despite being determined eligible for release on

the new charges, a probation detainer was imposed.

48. At Mr. Oden-Pritchett’s cursory Gagnon I proceeding, the Hearing Officer refused to lift the detainer,

explaining that he would need to take it up with Judge

Bigley at his Gagnon II hearing—and that he would not

get the opportunity to do so until his new charges resolved.

II. Defendants

County Defendants

49. Judge Jill Rangos is a Court of Common Pleas

Judge in Allegheny County. She serves as the Administrative Judge of the Criminal Division.

50. Frank Scherer is the Director of Allegheny

County Adult Probation and Parole (“Adult Probation”).

51. In these capacities, Judge Rangos and Director

Scherer approved a detainer policy for Adult Probation,

requiring mandatory detention without regard to the individual circumstances of the alleged violation of probation. County Defendants are sued in their official capacities for declaratory, injunctive, and monetary relief.

52. Orlando Harper is the Warden of the Allegheny

County Jail. In this capacity, he has custody of all individuals detained at the jail, including those subject to

probation detainers. Decisions to lodge and maintain

probation detainers are thus ultimately executed by

Warden Harper. He is sued in his official capacity for

declaratory, injunctive, and monetary relief.

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Judicial Defendants

53. Judge Anthony Mariani and Judge Kelly Bigley

are Court of Common Pleas Judges in Allegheny

County. They are assigned to the Criminal Division. In

this capacity, they sentence people to probation and

oversee their probationary terms.

54. Judges Mariani and Bigley have a blanket, administrative “no-lift” policy, meaning anyone they supervise who is arrested for allegedly violating their probation may not have their detainer lifted at their Gagnon I proceeding. Judicial Defendants are sued in their

individual and official capacities for declaratory relief.

Hearing Officer Defendants

55. Charlene Christmas, Robert O’Brien, Stephen

Esswein, and Renawn Harris are managing probation

officers at Adult Probation, a subdivision of the Court of

Common Pleas. They report to the Court of Common

Pleas criminal division judges, including Judicial Defendants. In this capacity, they serve as Hearing Officers overseeing Gagnon I proceedings and make decisions or recommendations regarding whether to lift a detainer. Hearing Officers are sued in their individual and

official capacities for declaratory relief.

OVERVIEW OF APPLICABLE LAW

56. Revocation of probation is a loss of liberty. People facing revocation are entitled to procedural and substantive due process protections. See Gagnon, 411 U.S.

778; Morrissey v. Brewer, 408 U.S. 471 (1972); Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied, __ U.S. __, 134 S. Ct. 1771 (2014).

57. The Court must provide people charged with violating their supervision with a “prompt” hearing,

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referred to in Pennsylvania as a “Gagnon I” proceeding,

to determine whether there is probable cause to believe

that they committed the violation alleged and whether

they should be detained during the pendency of their violation proceedings.

58. At the Gagnon I proceeding, the court must provide individuals notice of the alleged violation(s) of probation, an opportunity to appear and present evidence

on their own behalf, a conditional right to confront adverse witnesses, an independent decision-maker, and a

written report of the hearing. See Gagnon, 411 U.S. at

786 (citing Morrissey, 408 U.S. at 489).

59. After the Gagnon I proceeding, the court must

then conduct a hearing within a “reasonable time” to determine whether the person under supervision violated

the conditions of release, and, if so, whether that person

should be committed to prison or if other steps should be

taken to protect society and improve chances of rehabilitation. See id. at 784-85; Morrissey, 408 U.S. at 479-80,

488. This final revocation hearing is referred to in Pennsylvania as a “Gagnon II” hearing.

60. Prolonged incarceration pending the Gagnon II

hearing is justified only if the government proves, and a

neutral arbiter finds, that detention is necessary to prevent flight or ensure public safety. See Zadvydas v. Davis, 533 U.S. 678, 690-92 (2001); Kansas v. Hendricks, 521

U.S. 346, 358-69 (1997); Foucha v. Louisiana, 504 U.S.

71, 80-81 (1992); United States v. Salerno, 481 U.S. 749,

751 (1987). Given the absence of such procedural and

substantive safeguards, Defendants’ systemic detention

practices are unconstitutionally punitive.

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STATEMENT OF FACTS

I.

Defendants’ Employ a Detainer Policy That Requires Mandatory Detention.

61. County Defendants Judge Rangos and Director

Scherer have approved a formal, written Detainer Policy for Allegheny County Adult Probation (“Detainer

Policy”) that governs detention decisions when someone

is accused of violating their probation.

62. The Detainer Policy provides the “criteria” that

probation officers should apply to determine whether an

individual who is arrested “will be lodged in the jail on a

detainer.”

63. It includes a “mandatory detention provision,”

requiring that the individual “shall be detained if he or

she has a zero tolerance or mandatory detention court

condition that has been violated, or the offender has a

new charge that represents a serious threat to public

safety.”

64. “Zero tolerance or mandatory detention court

condition” typically refers to any use of alcohol or drugs.

65. When an individual is accused of violating the

terms of their probation, a probation officer applies this

Detainer Policy to make a preliminary decision regarding whether the individual should be caged. If so, the

probation officer lodges a “detainer” against them.

66. Individuals jailed on probation detainers wait as

long as 14 days after arrest to have their Gagnon I proceeding, an excessively long delay.

67. At the Gagnon I proceeding, Hearing Officer

Defendants are charged with determining whether

there is probable cause for the probation violation and

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whether the individual should remain detained until

their Gagnon II proceeding.

II. Hearing Officers Systematically Conduct Perfunctory Gagnon I Proceedings.

68. Hearing Officers routinely and systematically

conduct the Gagnon I proceedings in a perfunctory manner.

69. In a sample of 2,259 Gagnon I proceedings observed by volunteer court watchers between January

10, 2021, and September 16, 2022, 427 (19%) were under

2 minutes; 782 (25%) were between 2 and 5 minutes, and

805 (36%) were marked as somewhere over 5 minutes.

Only one proceeding was noted as 10 minutes; two were

15 and 20 minutes, respectively (all >1%).

70. The proceedings take place via video conference

over Microsoft Teams, with all individuals participating

remotely.

71. At the outset of the proceeding, Hearing Officers inform the detained individuals that the Hearing Officer will be making a decision about their detainer and

that there is a public defender present who can speak on

their behalf.

72. A probation officer proceeds to read a report regarding the alleged violation of probation. They present

no witnesses to testify, even where the probation officer

does not have first-hand knowledge.

73. The assigned public defender may then advocate

for the detainer to be lifted or transferred to alternative

86a

housing (another form of detention, albeit outside the

ACJ).6

74. The public defender does so without having had

the opportunity to meet with their client, investigate the

alleged violation, or obtain information that could be

used in their client’s defense. This prevents the public

defender from presenting any evidence or challenging

the factual basis for the alleged violation.

75. Hearing Officers render a decision on the detainer without making any finding that detention is necessary to prevent flight or to ensure public safety. Indeed, because Hearing Officers systematically fail to

consider information relevant to these factors, they do

not have a basis for such a finding.

76. In the vast majority of cases, Hearing Officers

decline to release the individual.

77. Based on a sample of 1,269 Gagnon I proceedings

observed by volunteer court watchers between January

10, 2021, and September 16, 2022, release was recommended in only 255 cases (20.1%).

78. Hearing Officers were responsible for 1,252 of

these cases. Broken down by individual hearing officer,

Charlene Christmas recommended release in only 70 of

418 cases (16.75%); Robert O’Brien recommended release in only 45 of 294 cases (15.31%); Stephen Esswein

recommended release in only 106 of 372 cases (28.49%);

and Renawn Harris recommended release in only 27 of

141 cases (16.1%).

79. Hearing Officers’ release rates were significantly low in cases involving technical violations and

6

On rare occasions, an individual’s privately retained defense

counsel appears.

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direct violations (new criminal charges) alike. In a sample of 1,121 cases notated by court watchers during the

same time period, release was recommended in only 11%

of cases involving a direct violation (26 out of 227 cases),

30% involving a technical violation (108 out of 354 cases),

and 17% involving both (91 out of 540 cases).

80. Though Hearing Officers inform detained individuals that the purpose of the Gagnon I proceeding is

to make a decision about the detention, they routinely

couch their “decision” in terms of a recommendation to

be reviewed by a judicial officer.

81. When Hearing Officers recommend detention,

the recommendation is routinely rubber stamped by the

reviewing judicial officer ex parte.

82. Conversely, when Hearing Officers recommend

that the detainer be transferred or lifted, the judicial officer scrutinizes and frequently overrides the recommendation.

83. When recommending detention, Hearing Officers systematically fail to make any finding that detention pending the Gagnon II is necessary to prevent flight

risk or to ensure public safety.

III.

Hearing Officers Systematically Order Mandatory Detention Pursuant to County Defendants’ Detainer Policy and Judicial Defendants’ No-Lift Policy.

84. In certain categories of cases, Hearing Officers

systematically order mandatory detention, without regard to any individualized circumstances and without a

case-specific finding regarding the necessity of detention. This occurs where the two mandatory detention

provisions of the Detainer Policy are implicated, or for

all people supervised by Judge Mariani and Judge

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Bigley, based on a blanket “no-lift” administrative policy

Judicial Defendants have issued.

Mandatory Detention Pursuant to

County Defendants’ Detainer Policy

85. In cases where an individual is alleged to have

violated a “zero tolerance” condition of probation, Hearing Officers automatically order detention based solely

on the nature of the alleged violation in accordance with

the Detainer Policy’s mandatory detention provision.

They do not consider any evidence about the circumstances surrounding the alleged violation, nor do they

make a finding that detention is necessary to prevent

flight or ensure public safety.

86. Even drinking a single can of light beer has been

enough to trigger this provision in the past.

87. Hearing Officers have also ordered mandatory

detention for individuals battling opioid use disorder, no

matter the fact that the ACJ is not equipped to provide

proper medical treatment.

88. Similarly, applying the mandatory detention

provision of the Detainer Policy regarding “a new

charge that represents a serious threat to public safety,”

Hearing Officers systematically order mandatory detention based on the nature of the underlying offense alone.

89. Hearing Officers apply this mandatory detention

provision to alleged offenses like aggravated assault and

possession of a weapon, without reference to the facts of

the alleged crime or the necessity of detention pending

the Gagnon II proceeding.

90. Hearing Officers’ indifference to the factual record holds true even where a judicial officer has already

determined that there is no need to detain the individual

89a

pretrial until their new case resolves and set conditions

for the individual’s release on the new offense.

91. Indeed, Hearing Officers routinely require detention without even considering the individual’s eligibility for release on the new charges.

92. For example, Plaintiff Jones was arrested on two

new charges while on probation. He was not only

deemed eligible for release on these charges—he was released. He posted a $25,000 bond and got out of jail.

A few days later, he was rearrested on the basis that the

new charges were a violation of probation.

93. At his Gagnon I proceeding, the Hearing Officer

refused to lift the detainer because of the nature of the

new charges, not considering the fact that Mr. Jones was

not even being detained on those offenses.

94. Plaintiff Horton was also accused of violating

probation after being arrested in two new cases. A magistrate judge ordered his release on a $5,000 unsecured

bond in each case. At the Gagnon I, the hearing officer

did not take the magistrate’s release order into account

and refused to lift his detainer based on the nature of the

offenses.

95. Unsecured bond entitles a person to release with

no up-front payment of bail. But for the detainer, Mr.

Horton would have been released from jail.

96. Despite the fact that judicial officers determined

that neither Mr. Jones nor Mr. Horton needed to be

jailed pretrial, Hearing Officers forced them to stay in

jail pending their Gagnon II proceedings.

90a

Mandatory Detention Pursuant to

Judicial Defendants’ No-Lift Policy

97. Hearing Officers also routinely and systematically expand on the two mandatory detention provisions

codified in the Detainer Policy by automatically recommending mandatory detention for anyone supervised by

Judge Mariani or Judge Bigley. This is because Judicial

Defendants have a categorical “no-lift” policy, meaning

that every individual they supervise arrested for a probation violation will be jailed regardless of the specific

circumstances of the alleged violation or the individual’s

risk of flight or harm to the community.

98. In so doing, Hearing Officers frequently remark

that Judicial Defendants have instructed them not to lift

detainers for any individuals they supervise, or even recommend a transfer to alternative housing; that their

hands are tied; and that they are powerless to provide

any relief.

99. Hearing Officers have made comments like: “It’s

Judge Mariani, I have no discretion in this case”; “I don’t

have the liberty to lift Mariani’s detainers and that’s

that”; “There’s nothing we can do here, even if all three

of us [hearing officer, public defender, and probation officer] want you out, Mariani won’t let it happen”; “This

is Judge Bigley. I’m not allowed to lift the detainer”;

“This is Judge Bigley--I’m not allowed to release you.”

100. Frequently, the assigned public defender echoes the same sentiment, explaining to detained individuals that the detainer will not be lifted at the Gagnon I

because of Judicial Defendants’ preferences regarding

detainers: “There is very little we can do because you

have Judge Mariani and a zero tolerance condition”;

“Judge Mariani does not give much leeway for hearing

officers”; “The difficulty is the sentencing judge is

91a

Mariani and I’m not sure how much leeway the hearing

officer has until the judge sees you”; “Judge Mariani

wants everyone detained before he sees them for [Gagnon] IIs”; “The big problem is you have Judge Mariani

on both of these cases, and he prefers to have people detained… We’re dealing with a judge who doesn’t want

to let you out”; “Bigley makes her own decisions”;

“Judge Bigley wants to see people personally who have

new charges”; “Judge Bigley likes to make her own decisions”; “I’m limited in what I can do for you in part because Bigley likes to make her own decisions”; “[Judge

Bigley] likes to see everyone who violates”; “Judge Mariani likes to make his own decisions.”

101. In other words, Judicial Defendants divest

Hearing Officers of the ability to make an independent,

individualized determination regarding the necessity of

detention.

102. Judicial Defendants do so through a blanket

policy that anyone they supervise should remain detained. Hearing Officers defer to these instructions from

their bosses, rendering the Gagnon I proceeding for the

people they supervise utterly meaningless; the procedural protections it purports to afford ring hollow.

103. This was the precise experience of Plaintiffs

Brownlee and Oden-Pritchett. At their Gagnon I proceedings, Hearing Officers refused to lift the detainers

because they were supervised by Judge Mariani and

Judge Bigley, respectively.

104. County Defendants sanction Judicial Defendants’ expansion of the Detainer Policy.

105. Despite the policymaking authority they have

exercised by issuing the Detainer Policy (and despite

Judge Rangos’s general authority as the Administrative

92a

Judge), County Defendants do not prohibit Judicial Defendants from imposing a no-lift policy, or Hearing Officers from abiding by it.

IV. After the Gagnon I Proceeding, Detained Individuals Have No Meaningful Opportunity for Release.

106. Once a Hearing Officer orders someone detained at the Gagnon I proceeding, they are effectively

relegated to languish in jail until their Gagnon II proceeding, which is typically months later.

107. As a matter of local custom, after the Gagnon I

proceeding, only the supervising Common Pleas judge

has the authority to lift the probation detainer.

108. County Defendants could promulgate a policy

allowing automatic review of detainer decisions after the

Gagnon I proceeding.

109. In fact, Allegheny County does this very thing

for bail determinations, allowing a specific Court of Common Pleas judge to review pretrial incarceration decisions within a few days after a magistrate judge makes

the initial determination.7

110. Instead, no review of the detainer ever occurs

unless an individual files a motion to lift the detainer.

111. As a practical matter, most people on probation

do not have access to an attorney to file such a motion—

even if they are indigent and qualify for a public defender. While an individual may on paper be represented by the Public Defender’s Office between their

Gagnon I and Gagnon II proceedings, in reality there

7

Plaintiffs do not pass on the constitutional sufficiency of the

initial bail setting proceedings or these bail review proceedings.

93a

are often long gaps during which defendants lack access

to representation.

112. The Public Defender’s Office employs horizontal representation, meaning that a different attorney

represents an individual during different stages of their

case.

113. Between the conclusion of the Gagnon I hearing and shortly before the Gagnon II hearing, a period

that can last months or even years, individuals are not

assigned a public defender on their probation case.

114. For example, when Plaintiff Horton met with a

public defender months after his arrest, that attorney

was there only to work with him on his new charges—

not his alleged probation violation. A public defender

has yet to meet with him about his probation case, nearly

eight months into his incarceration.

115. At the Gagnon I proceedings, Hearing Officers

and the assigned public defender alike routinely tell individuals they should hire an attorney if they would like

to move to lift the detainer.

116. So, for the vast majority of people, who cannot

afford to hire an attorney, even the prospect of filing

such a motion is illusory.

117. The few people who are able to hire an attorney

for this purpose are still unable to avoid spending

months in jail, as judges routinely delay ruling on these

motions and they frequently deny them—often without

a hearing or explanation.

118. Plaintiff Jones, for example, hired an attorney

to file a motion to lift his detainer. His supervising

judge, Judge Rangos, denied it without a hearing.

94a

V. Detainer Practices Are Widespread and Contribute Significantly to Pretrial Detention in

the Allegheny County Jail.

119. The reach of Defendants’ unconstitutional and

illegal policies and practices is significant.

120. On any given day, about one third of the people

caged at the Allegheny County Jail have a probation detainer lodged against them.

121. As of September 23, 2022, 651 individuals—or

39.4% of the 1,651 total people in jail—had a probation

detainer lodged against them.8

122. The vast majority of these people would be eligible for release but for the detainer.

123. 264 individuals with a detainer (or 16% of the

overall jail population) appear to be detained only because of a technical violation of probation.9

8

Allegheny County, Current Population Hold Types, ALLE-

GHENY COUNTY JAIL POPULATION MANAGEMENT DASHBOARDS,

https://bit.ly/3BCmzTc (last visited Sept. 23, 2022), applying these

filters:

9

Id., applying these filters:

95a

124. 280 individuals with a detainer (or 17% of the

overall jail population) are awaiting trial on a new charge

(i.e. the primary basis of the alleged probation violation

is a new charge).10

125. About 24 of those with a probation detainer had

resolved their new cases and were in jail solely awaiting

their Gagnon II proceeding.11

126. Most of those with a new criminal case pending

are eligible for release on the new case (i.e., as is the case

with each of the Named Plaintiffs, a judicial officer has

set monetary or non-monetary conditions for release).

But because of the detainer, they are stuck in jail.

127. Due to Defendants’ unconstitutional and illegal

policies and practices, people subject to probation detainers in Allegheny County are often detained for extended periods of time.

128. The vast majority of people accused of violating

probation because they allegedly committed a new criminal offense must wait three months (on average) between the resolution of their new case and the Gagnon II

hearing—in addition to the months it takes for the new

case to resolve.12

10

11

12

Id., applying these filters:

Id., applying these filters:

See, e.g., Allegheny County Safety + Justice Challenge, Year

Three Report (January 2021 – December 2021) at 3, https://bit.ly/

96a

129. There is no legal requirement for the Gagnon

II to be delayed until after the new case resolves, let

alone for months afterward—this is purely a matter of

local practice, at the expense of individual liberty.

130. Throughout this time, individuals suffer the incalculable harm of pretrial incarceration.

131. Pretrial incarceration harms people’s lives beyond their loss of liberty. People who are jailed awaiting

trial endure degrading and life-threatening conditions.

132. For instance, people who are incarcerated pretrial can experience worsening mental illness, since conditions in jail can put a person under extreme stress and

restrict access to needed medications;13 a high likelihood

of being assaulted, including sexual assault, especially in

the first few days of incarceration; exposure to communicable diseases; inability to exercise; deprivation of sunlight and fresh air; and forcible separation from children

and family.

133. Other consequences of pretrial incarceration

include loss of income, since people often lose their jobs

while detained; loss of housing and missed payments on

utilities and other bills, since people cannot make rent

and other payments when jailed; and loss of physical or

legal custody of children.

134. Those few people who can actually afford an attorney to represent them in probation violation proceedings have a more difficult time communicating with their

3DMYDPM (suggesting that it takes an average of 84 days between

resolution of a new case and resolution of the probation violation).

13

See Incarceration’s Front Door: The Misuse of Jails in

America, VERA INSTITUTE OF JUSTICE (July 29, 2015), at 12,

https://bit.ly/3rvEwyp.

97a

counsel, making it harder to prepare a defense. In the

analogous pretrial incarceration context, detained individuals are more likely to be convicted, and sentenced to

longer terms of incarceration, than comparable individuals who can prepare their defense out of custody.14 And

incarceration makes communities less safe, too: just two

or three days of pretrial detention increases the risk of

recidivism for low-risk persons.15

135. Conversely, reducing reliance on incarceration

makes communities more safe. For example, under a

consent decree approved by a federal court in November

2019, Harris County, Texas has been releasing most people arrested for misdemeanors promptly and following

modified procedures at bail hearings to comply with the

Constitution. Since the consent decree has been in place,

the number of persons arrested for misdemeanors who

had a new charge filed within a year has decreased, while

the percentage of misdemeanor cases resulting in conviction has dropped by more than 50 percent.16

14

See Christopher T. Lowenkamp et al., Laura & John Arnold

Found., Investigating the Impact of Pretrial Detention on Sentencing Outcomes 12, 14, 16, 18 (2013), https://bit.ly/3PjDgbO; Megan

T. Stevenson, Distortion of Justice: How the Inability to Pay Bail

Affects Case Outcomes, 34 J.L. ECON. & ORG. 511, 535–36 (2018).

15

See Timothy R. Schnacke, Nat’l Inst. of Corr., Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a

Framework for American Pretrial Reform 15-16 (2014),

https://bit.ly/3y6jNVk; Christopher T. Lowenkamp, Marie VanNostrand, & Alexander Holsinger, The Hidden Costs of Pretrial

Detention (Laura & John Arnold Found. 2013).

16

Brandon L. Garrett et al., Monitoring Pretrial Reform in

Harris County: Fourth Report of the Court-Appointed Monitor,

ODonnell v. Harris County, 16-cv-1414 (S.D. Tex.) at v-vi (Apr. 18,

2022), https://bit.ly/3PG3rt8; see also Fola Akinnibi, Texas Bail

98a

136. The harmful effects of pretrial incarceration

are particularly acute at the Allegheny County Jail.

137. The inhumane conditions at the jail have been

widely reported in the local media and are regularly discussed at monthly Jail Oversight Board (JOB) meetings.

Recently, JOB members have heard concerns over

“lockdown” practices at the jail, which potentially violate a local ban on the use of solitary confinement;17 inadequate access to medications;18 and unsanitary food

that incarcerated individuals are forced to consume.19

138. There are several pending lawsuits against Allegheny County regarding the mistreatment of individuals caged at the jail, including litigation regarding excessive force, mistreatment of individuals with psychiatric disabilities, poor conditions, and inadequate medical

treatment.

139. Six people incarcerated at the Allegheny

County Jail died this year alone. Seventeen individuals

have died at the jail since the onset of the pandemic in

2020.20 Based on publicly available court records, at

Reform Reduced Jail Time and Crime, New Study Says, BLOOMBERG (Aug. 30, 2022), https://bloom.bg/3C9bdYp.

17

Julia Zenkevich, Allegheny County Jail was on lockdown in

June, some worry it may have violated the solitary confinement referendum, 90.5 WESA (July 8, 2022), https://bit.ly/3UCTako.

18

Juliette Rihl, Mixed-up meds & long waits: How understaffing hurts medical treatment at Allegheny County Jail, PUBLIC

SOURCE (Jan. 7, 2021), https://bit.ly/3SwJO7V.

19

Hannah Wyman, Food at the forefront of Jail Oversight

Board meeting, PITTSBURGH POST-GAZETTE (May 6, 2022),

https://bit.ly/3Uy5m61.

20

Brittany Hailer, Hours before he died, the Allegheny County

Jail released an incarcerated man with intellectual disability from

99a

least five of them were in jail solely because of a probation detainer.

140. Named Plaintiffs themselves have paid significant personal costs of incarceration.

141. Mr. Horton lost the job he had at Wal-Mart. He

has two kids, a one-year-old son and a one-month-old

daughter. Mr. Horton missed the birth of his daughter

because he was in jail. He can no longer help support his

girlfriend or either of his kids, putting a financial strain

on their mothers. For instance, his son’s mother lost her

job because she could not afford a babysitter; had

Mr. Horton not been in jail, he could have cared for his

son while her mother was at work.

142. Mr. Jones lost his housing and all of his belongings. His dog was taken to a dog pound. His siblings

have been sending him money so he can buy commissary,

which is in turn negatively impacting their ability to provide for their kids.

143. Mr. Brownlee was infected with the COVID-19

virus twice while jailed at the ACJ. Being in jail has prevented him from seeing his four-year-old son or caring

for his aging mother.

CLASS ACTION ALLEGATIONS

144. Plaintiffs bring the claims in this action, on behalf of themselves and all other similarly situated, as a

class action under Federal Rules of Civil Procedure

23(a)(1)-(4) and 23(b)(2)-(3).

custody, PITTSBURGH INSTITUTE FOR NONPROFIT JOURNALISM

(Sept. 23, 2022), https://bit.ly/3fk3e1S.

100a

145. In accordance with these Rules, Plaintiffs seek

to certify the following classes and subclasses:21

Pre-Gagnon I Class: All individuals, who are now

or will in the future be, detained at the Allegheny

County Jail on an Allegheny County probation detainer awaiting a Gagnon I proceeding. This class is

represented by Plaintiffs Stanford and Bronaugh,

who seek certification under Rule 23(b)(2).

Pre-Gagnon I Mandatory Detention Subclass:

All individuals, who are now or will in the future be,

detained in the Allegheny County Jail on an Allegheny County probation detainer pursuant to a

mandatory detention policy and awaiting a Gagnon

I proceeding. This class is represented by Plaintiffs

Stanford and Bronaugh, who seek certification under Rule 23(b)(2).

Post-Gagnon I Class: All individuals who, at any

time since October 3, 2020 through the present, were

ordered detained on an Allegheny County probation

detainer at their Gagnon I proceeding without a

finding that such detention was necessary to satisfy

a legitimate government interest. This class is represented by Plaintiffs Horton, Jones, Brownlee, and

Oden-Pritchett, who seek certification under Rule

23(b)(3).

Post-Gagnon I Mandatory Detention Subclass:

All individuals who, at any time since October 3,

21

For purposes of the subclasses, “mandatory detention” refers to circumstances in which individuals are automatically detained because they 1) are accused of violating a zero tolerance condition of probation; 2) are supervised by Judge Mariani or Judge

Bigley; or 3) are accused of a new charge “that represents a serious

threat to public safety.”

101a

2020 through the present, were ordered automatically detained on an Allegheny County probation detainer at their Gagnon I proceeding pursuant to a

mandatory detention policy. This subclass is represented by Plaintiffs Horton, Jones, Brownlee, and

Oden-Pritchett, who seek certification under Rule

23(b)(3).

146. A class action is the only practicable means by

which Plaintiffs and class members can challenge Defendants’ unconstitutional policies, practices, and procedures. On any given day, upwards of 600 individuals incarcerated at the Allegheny County Jail have a probation detainer lodged against them.

147. There are questions of law and fact common to

all class and subclass members, including:

•

What procedural protections and substantive

standards Defendants apply at Gagnon I proceedings before ordering people jailed for the

pendency of their violation of probation proceedings.

•

Whether Defendants require mandatory detention for certain categories of individuals at their

Gagnon I proceedings, regardless of the specific

circumstances of their alleged violations of probation.

•

Whether Defendants’ custom, policy, or practice

of perfunctory Gagnon I proceedings violates

the procedural and substantive due process

rights of people on probation.

•

Whether Defendants’ custom, policy, or practice

of mandatory detention at Gagnon I proceedings violates the procedural and substantive due

process rights of people on probation.

102a

•

Whether Plaintiffs are e

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