Petition for Writ of Certiorari — Scott v. Quigley (No. 07-1118)

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Supreme Coud, US.

071118060 21 2007

No. THE CLERK

IN THE

Supreme Court of the

United States

RONALD K. SCOTT

Petitioner,

KEITH B. QUIGLEY, ET AL.

Respondents.

On Petition for a Writ of Certiorari To .

The United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Michael D. Reed

Mette Evans & Woodside, P.C.

3401 North Front Street, Suite 202

Harrisburg, PA 17110

(717) 232-5000

Elizabeth J. Goldstein

Arthur R. Traldi

Elizabeth Goldstein, P.C.

355 North 21st Street, Suite 202

Camp Hill, PA 17011

(717) 724-0266

Counsel for Petitioner

QUESTION PRESENTED

(1) Whether prisoner’s clearly established Eighth

and Fourteenth Amendment rights are

violated, giving rise to a cause of action under

42 U.S.C. §1983, when he is incarcerated for

four additional days after a judge orders his

release due to the implementation of a state

policy requiring the judge’s order to be

transmitted to the correctional institution

where he resides by U.S. mail.

PARTIES TO THE PROCEEDING BELOW

The following individuals are parties to the

proceeding in the court below:

Ronald K. Scott, Jeffrey A. Beard, Raymond J.

Sobina, District Attorney R. Scott Cramer,

Assistant District Attorney Chad Chenot, Public

Defender S.C. Walz, III, Clerk of Court Brenda

Albright, Perry County, the Honorable Keith B.

Quigley, President Judge, The Hon. C. Joseph

Rehkamp, and Magisterial District James R.

Moyer, Jr.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CITED AUTHORITIES

OPINIONS BELOW AND

JURISDICTION

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONSING FOR GRANTING THE

PETITION

I. Defendants Detained Mr. Scott For

Several Days After Judge Rehkamp

Granted His Writ, Violating His

Eighth and Fourteenth Amendment

Rights and Creating a Cause of Action

CPU SOON TN oak sca ian kc icc svattpdidenns 1]

A. By Detaining Mr. Scott for

Several Days After His Writ

Was Granted, Defendants Imposed

a Cruel and Unusual

Wares eiccic sce vesinscese 11-12

B. By Detaining Mr. Scott for

Several Days After His Writ

Was Granted, Defendants Violated

His Fourteenth Amendment Right

to be Free From Continued

ERTS CI fb 1 OOS ROY ON 25

Il. This Case Provides an Ideal Vehicle

for Addressing the Important Legal

Question of When a Plaintiff Subjected

to Overdetention may Recover

CHGOE EE Ty Beker; B RIGS ces vsisivsveicnvncsciesecic 32

A. There is a split in the circuits

a awh 32

B. Overdetention is a serious and

widespread problem.....................00e e000 41

C. This Case is an Ideal Vehicle for

Resolving the Question...................0.008 44

Sp ec DM a a ee a ae 45

APPENDIX |

United States Court of Appeals for the Third

Circuit September 26, 2007

NN ete Ge sai ccc ckeuspsscvacgeiess esens 2-6

United States District Court for the Middle

District of Pennsylvania

MNF) te Wo inst ccerp cannes sdccseccnees 7-22

Common Pleas Court of the Commonwealth of

Pennsylvania, Opinion of Judge Rehkamp

NS ity MII 658s s os icndndsascae sheiessivins 23-24

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton, 483 U.S. 635 (1987)--------- 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

ft 23

Armstrong v. Squadrito, 152 F.3d 564

Ue I ication sconce 25

Atkins v. Virginia, 536 U.S. 304 (2002)------------ 12, 17

Baker v. McCollan, 443 U.S. 137, 144-46

PI a iiiicicctsninignisccticinaeinsccncrenacscatiiti 26

Banks v. Beard, 548 U.S. _ , (2006)--------------------- 18

Barnes v. District of Columbia, 2007 U.S. Dist.

LEXIS 20856 (D.D.C. 2007)-------------------- 36, 42

Berry v. Baca, 379 F.3d 764 (9 Cir. 2004)

staan stebaaiibabiaieGniienicanniameainst 21, 25, 33, 38

Vil

Brass v. County of Los Angeles, 328 F.3d 1192

OO ie CIE incinsnensccicssin ieprerccinnniiinnied 26, 3°

Bynum v. District of Columbia, 214 F.R.D. 27,

STL, Sais ccs cere 42

Cannon v. Macon County, 1 F.3d 1558 (11%

Cir. 1999) ---------------------------------------0-----=- 26

Cannon v. Macon County, 15 F.3d 1022

CRE Cie Binnie sectenineisstinnne 21

Carter v. Hennepin County, 162 Fed. Appx. 682

(8 Cir. 2006)-------------------------------------------- 34

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)--------- 23

Chortek v. City of Milwaukee, 356 F.3d 740

heal 1. | a 35

Commonwealth v. Morman, 541 A.2d 356 (1988)----5

County of Riverside v. McLaughlin, 500 U.S. 44

f. | | NUMAN EER re eI 16, 19, 32, 37, 38

Davis v. Hall, 375 F.3d 703 (8th Cir. 2004)----------- 25

Vili

Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980)------- 36

Dye v. Hennepin County, 162 Fed. Appx. 678

(8% Cir. 2006)---------------------------------+------0--- 34

Elder v. Holloway, 510 U.S. 510 (1997)----------------- 21

Emmund v. Florida, 458 U.S 782 (1982)--------------- 13

Ewing v. California, 538 U.S. 11 (2003)---------------- 14

Farmer v. Brennan, 511 U.S. 825 (1994) ------------- 24

Fairley v. Luman, 281 F.3d 913 (9% Cir. 2002)------- 26

Foucha v. Louisiana, 504 U.S. 71 (1992)--------------- 28

Fowler v. Block, 2 F. Supp. 2d 1268

(C.D. Cal 1998)---------------------------020-----e0-0e 22

Goldberg v. Hennepin County, 417 F.3d 808

BP ie, DOI re sciinsensenmtomrsiecn 33, 34

Gramenos v. Jewel Companies, Inc., 797 F.2d 432

(7% Cin, 19G onnsnnarannnencnninincvenicninnninisinisnsinitinnin 35

Gregg v. Georgia, 428 U.S. 153 (1976)------------------ 17

Harmelin v. Michigan, 501 U.S. 957 (1991)------ i4, 15

Harlow v. Fitzgerald, 457 U.S. 800 (1982)------- 11, 20

Heryla v. Hennepin County, 162 Fed. Appx.

en 34

Hodges v. Humkin, 80 Eng.Rep.

1015 (KB 1615)-------------------------------0--0-0e000- 13

Hutto v. Finney, 437 U.S. 678 (1978)------------------- 12

Johnson v. California, 543 U.S. 499 (2005)--10, 19, 30

Lewis v. O'Grady, 853 F.2d 1366

(7 Cir. 1988)-------------------------------------+- 16, 35

Lund v. Hennepin County, 427 F.3d 1123

(8t Cir. 2005) -------------------------------------- 33, 34

Lytle v. Household Mfg., Inc., 494 U.S. 545

(1990)----------------c-eae--neenenssen-neeseennenneenenee 24

Mathews v. Eldridge, 424 U.S. 319 (1976)------------ 18

McCurry v. Moore, 242 F. Supp. 2d 1167

eee 20, 30

Moore v. Marketplace Restaurant, Inc., 754 F.2d

1336 (7% Cir. 1985)-----------------.-------------- 35

Murphy v. County of Hennepin, 162 Fed. Appx. 677

CP Cllr. SID aman n nnn ten enna nennnesenenaes 34

Oertwig v. Hennepin County, 162 Fed. Appx. 683

I ae inicio 34

Overton v. Bazzetta, 539 U.S. 126 (2003)-------------- 18

Pederson v. Hennepin County, 170 Fed. Appx. 14

(8% Cir. 2006)----------------------.-----------ceeeee-2e- 34

Pierce v. Underwood, 487 U.S. 552 (1988)------------- 21

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000)----------------------------- 24, 31

Robinson v. California, 370 U.S. 660 (1962)----------- 14

Roper v. Simmons, 125 U.S. 1183 (2005)--------------- 13

Rummel v. Estelle, 445 U.S. 263 (1980)--------------- 14

Russell v. Hennepin County, 420 F.3d 841

GUNN Ce, Na sails 33

Saucier v. Katz, 533 U.S. 194 (2001)-------------------- 24

Sample v. Diecks, 885 F.2d 1099

(3d Cir. 1989)-------------------------------------------- 28

Sanders v. English, 950 F.2d 1152 (5th Cir. 1992) -27

Sizer v. County of Hennepin, 162 Fed. Appx. 681

Ce 25s... 34

Solem v. Helm, 463 U.S. 277, 279 (1983) -------------- 14

Streit v. County of LA, 236 F.3d 552

(9th Cir. 2001)-----------------------<------------------ 22

Trop v. Dulles, 356 U.S. 86, 96 (1958)------------------- 12

Turner v. Safley, 482 U.S. 78 (1987)-------------------- 10

Weems v. United States, 217 U.S. 341 (1910) ------- 14

Whirl v. Kern, 407 F.2d 781 (5 Cir. 1968), cert

denied, 396 U.S. 901------------- waneeee----- 35, 36, 43

Wilkinson v. Austin, 545 U.S. 209 (2003)-------------- 29

Youngberg v. Romeo, 457 U.S. 307 (1982)------------ 28

Xil

The United States Constitution

The Eighth Amendment -------------------------------- 9,14

The Fourteenth Amendment-------------------------------- 9

Federal Statute

42 U.S.C. Section 1983----------------------------------- 9

Federal Rule of Civil Procedure

eee Bis ote 23

Commonwealth of Pennsylvania Statute

42 Pa.C.S.A. Section 6109----------------------------------- 29

Law Review Article

Patricia E. Simone, NOTE, A __ Presumptive

Constitutional Time Limit for Administrative

Overdetention of Inmates Entitled to Release,

81 Notre Dame L. Rev. 719, 738 (2006)----------------- 38

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ronald Scott respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit

in this case.

OPINIONS BELOW AND JURISDICTION

The opinion of the Third Circuit Court of

Appeals, Petitioner’s Appendix 2-6, is available at

2007 U.S. App. Lexis 22776. The opinion of the

District Court for the Middle District of

Pennsylvania, Petitioner’s Appendix at 7-22, is

available at 2005 U.S. District Lexis 35692 and 2005

WL 1377893. The judgment of the Third Circuit was

entered into on September 26, 2007. The judgment of

the District Court was entered into on June 7, 2005.

This Court has jurisdiction under 28 U.S.C. §1254.

The District Court had had jurisdiction under 28

U.S.C. §1331: “The district courts shall have original

jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States."

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Eighth Amendment to the United States

Constitution provides that “Excessive bail shall not

be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.”

Section 1 of the Fourteenth Amendment to the

United States Constitution provides in pertinent

part that “No State shall... deprive any person of

life, liberty, or property, without due process of law.”

42 U.S.C. §1983 provides in pertinent part that

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

D RRR I BP IIE FET TO AE RT TONE OR A al RN OE gn pe

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress.”

STATEMENT OF THE CASE

1. Ronald Scott paid his bail on February 13,

2002. Raymond Sobina Declaration! at para. 8.

Scott’s lawyer filed a Writ of Habeas Corpus on

February 22, 2002. On February 25, 2002, Mr. Scott

sent a communication to Defendant Sobina, the

warden of the correctional institution at which he

was housed, informing Mr. Sobina that his bail had

been paid. Defendants have not presented at any

level any evidence that Defendant Sobina took any

action as a result of Mr. Scott’s communication. On

| The declarations of Raymond Sobina, Sheila Stailey, and

Donald Harcom are available in the Third Circuit record.

or before February 27, 2002, the Department of

Corrections was notified of Mr. Scott’s habeas corpus

petition and transported him to the Perry County

Prison in order to appear the next day at his Writ of

Habeas Corpus hearing. Harkcom Affidavit at para.

6. On Thursday, February 28, 2002, Mr. Scott

attended a habeas hearing, where Judge Rehkamp

granted Mr. Scott a Writ of Habeas Corpus as a

result of his finding that Mr. Scott had made bail.

2Petitioner’s Appendix at 23-24. Under Pennsylvania

2 Judge Rehkamp granted Mr. Scott’s writ subject to the terms

and conditions of bail, which under 234 Pa. Code § 526 are that

a bailee must:

(1) appear at all times required until full and final

disposition of the case;

(2) obey all further orders of the bail authority;

(3) give written notice to the bail authority, the clerk of

courts, the district attorney, and the court bail agency or other

designated court bail officer, of any change of address within 48

hours of the date of the change;

(4) neither do, nor cause to be done, nor permit to be done on

his or her behalf, any act proscribed by Section 4952 of the

“gated

- Ba) ik ae

Daten

law, the habeas writ “lies to secure the writ of one

who is detained unlawfully.” Commonwealth v.

Morman, 373 Pa. Super. 360, 541 A.2d 356 (1988).

On that same date, Sheila Stailey paid the

alleged outstanding detainers for Mr. Scott. Stailey

affidavit at para. 1. She returned receipt of these

payments to the Perry County Clerk of Courts Office

located at the Perry County Courthouse, Center

Square, New Bloomfield, Pennsylvania (hereinafter

the “Perry County Clerk’s Office”) between 12:30 PM

and 12:45 PM. Id. While at the Perry County Clerk’s

Office, she was told that the proper paperwork would

be sent to the State Correctional Institution at

Somerset (hereinafter “SCI-Somerset”), where Mr.

Crimes Code (relating to intimidation of witnesses or victims)

or by Section 4953 (relating to retaliation against witnesses or

victims), 18 Pa.C.S. § § 4952, 4953; and

(5) refrain from criminal activity.

Scott was imprisoned. Id. at para. 2. Her payment

was received, and the Perry County Clerk’s office

authorized its detainer against Mr. Scott to be lifted.

After returning home from the Perry County

Clerk’s Office (still on February 28, 2002), Stailey

spoke to Tonya, secretary for Mr. Scott's attorney,

Kevin Prosser, to tell her the detainers had been

paid. In that conversation, Stailey told Tonya that

the Perry County Clerk’s Office said that the proper

paperwork needed to be sent to SCI-Somerset in

order for Ronald Scott to be released. Stailey

Affidavit at para. 4. Tonya then responded that she

would call the Perry County Clerk’s Office to see if

they could fax the proper paperwork instead of

sending it to SCI-Somerset. Id. at para. 5. Tonya was

told that the Clerk’s Office said that SCI-Somerset

had to have an origina] Order and that it could not

be faxed to them, it must be mailed. Id. at para. 6.

Se eee eins eee teenie a Seer in.” aris

Then on the same day, February 28, 2002, Stailey

called the Perry County Clerk’s Office to see whether

she could drive a certified copy of the proper

paperwork up to SCI-Somerset instead of having it

mailed. Id. at para. 7. The person Stailey talked to

at the Perry County Clerk’s Office said that they had

already sent the paperwork. Id. This person also

said Stailey would just have to wait for SCI-

Somerset to receive the paperwork. Id. This person

told Stailey that SCI-Somerset should get the

paperwork by Friday, but because it was a Friday,

people might leave early for the weekend and Mr.

Scott might not be released until Monday, March 4,

2002. Id.

SCI-Somerset did not release Scott until Monday,

March 4, 2002, four days after Scott’s bail and all

alleged detainers were paid. Sobina Declaration at 9;

Harkcom Declaration at 7. The Department of

Corrections’ policy was that it would not release a

prisoner due to bail without, “a certified court order

allowing bail, an order setting bail and a signed

receipt that bail was paid.” Checklist attached to

Pennsylvania Department of Corrections (“DOC”)

Bulletin Number 11.5.1-4.4 The DOC interprets this

policy as requiring a mailed copy of the certified

order. Sobina Affidavit at 5; Harkcom Affidavit at 7

and final paragraph of the Affidavit which is

—> -

misnumbered with a second 7.

2. Mr. Scott brought suit in the United States

District Court for the Middle District of

Pennsylvania under Section 1983 alleging that

Defendants’ continued imprisonment of him after a

Judge had ordered his release violated, inter alia, his

rights under the Eighth and Fourteenth |

Amendments to the United States Constitution.

3 This document is available in the record below.

Judge Caputo granted the Defendants’ motion for

summary judgment. Petitioner's Appendix at 7-22.

Mr. Scott then appealed to the United States Court

of Appeals for the Third Circuit, which denied his

appeal September 26, 2007, without hearing oral

argument. Petitioner’s Appendix at 2-6.

REASONS FOR GRANTING THE WRIT

The Due Process Clause of the Fourteenth

Amendment lays out one of the most fundamental

principles of any nation governed by the rule of law:

that no State shall “deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const., Amend. XIV, Sec. 1. The Eighth Amendment

further provides “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” And the United

States Congress, in passing 42 U.S.C. §1983, has

recognized that victims of Constitutional violations

}

Reis

are entitled to be made whole by American tort law

like the victims of any other offense.

In the case at bar, Defendants continued to

detain Mr. Scott for four days after he was granted a

writ of habeas corpus. This was due to a policy that

required regular mail transmission of the writ to the

correctional institution, putatively due to concern for

prison security. While prison operations are entitled

to some deference, Turner v. Safley, 482 U.S. 78, 84-

85, (1987), that deference is extremely limited in the

Eighth Amendment context “because the integrity of

the criminal justice system depends on full

compliance with the Eighth Amendment.” Johnson

v. California, 543 U.S. 499, 510-511 (2005). Unless

necessity is shown, searching judicial review is

appropriate. Id.

Moreover, Defendants are not shielded by

qualified immunity. Such immunity protects officials

whose “conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The right tu be

promptly released after a writ of habeas is granted is

evident, and its violation not shielded from suit.

I. Defendants Detained Mr. Scott For

Several Days After Judge Rehkamp

Granted His Writ, Violating His Eighth

and Fourteenth Amendment Rights and

Creating a Cause of Action Under Section

1983.

A. By Detaining Mr. Scott for Several

Days After His Writ Was Granted,

Defendants Imposed a Cruel and Unusual

Punishment.

1. Imprisonment subsequent to a lawful order

of release is ipso facto imprisonment without legal

authority. As such, it is a cruel, unusual, and

unlawful punishment.

This Court's precedents are clear that

overdetention may be a violation of the Eighth

Amendment. For a sanction imposed by the state‘ to

violate the Eighth Amendment, it must be cruel or

unusual and punitive. Trop v. Dulles, 356 U.S. 86, 96

(1958). Imprisonment is a punitive sanction. Hutto v.

Finney, 437 U.S. 678, 685 (1978).

Some punishments violate the Eighth

Amendment because they are “always-and-

everywhere ‘cruel,” such as the rack and the

thumbscrew. Atkins v. Virginia, 536 U.S. 304, 349,

(2002) (Scalia, J., dissenting). A punishment may

also violate the Eighth Amendment if it violates the :

4 The Eighth Amendment has been interpreted as incorporated

to the states since Louisiana ex rel. Francis v. Resweber, 329

U.S. 459 (1947).

“evolving standards of decency that mark the

progress of a maturing society.” Trop, supra, 356

U.S. at 101.5 Recently, the Supreme Court

reaffirmed that “cruel and unusual punishments”

must be judged by modern standards. Roper v.

Simmons, 125 U.S. 1183, 1190 (2005). “Cruel and

unusual” is a matter of proportion to the crime, and

specifically “must be tailored to [the defendant’s]

personal responsibility and moral guilt.” Emmund v.

Florida, 458 U.S 782, 801.® For instance, “even one

day in prison would be a cruel and unusual

5 The possibility of interpreting the Eighth Amendment in light

of evolving standards was contemplated at the Founding.

Furman v. Georgia, 408 U.S. 238, 321 at n.19 (Marshall, J.,

concurring), citing 1 Annals of Cong. 782-83 (1789).

6 The principle that punishment must be tailored to guilt was

handed down to us from the British legal tradition. See Hodges

v. Humkin, 80 Eng.Rep. 1015, 1016 (KB 1615) (“imprisonment

ought always to be according to the quality of the offense”),

Earl of Devon's Case, 11 State Tr. 133, 136 (1689) (overruling a

fine because it was “excessive and exorbitant, against magna

charta, the common right of the subject, and the law of the

land”).

punishment for the ‘crime’ of having a common cold.”

Robinson v. California, 370 U.S. 660, 667 (1962).

This Court has also struck a mandatory life sentence

for overtime parking, a sentence of twelve to twenty

years at hard labor for falsifying public records, and

a life sentence without parole for a bounced check as

“grossly disproportionate.” Rummel v. Estelle, 445

U.S. 263, 273 (1980) , Weems v. United States, 217

U.S. 341, 381 (1910), Solem v. Helm, 463 U.S. 277,

279 (1983).?

7 While the application of the principle that the Eighth

Amendment prohibits excessive and disproportionate non-

capital punishments has been criticized, see Harmelin v.

Michigan, 501 U.S. 957, 966-985 (opinion of Scalia, J.), this

Court’s jurisprudence had for decades prior and in numerous

cases since interpreted the Eighth Amendment to provide such

protection. See, e.g., Ewing v. California, 538 U.S. 11, 20

(2003), citing Harmelin, supra, at 996-997 (Kennedy, J.,

concurring): “The Eighth Amendment, which forbids cruel and

unusual punishments, contains a ‘narrow proportionality

principle’ that ‘applies to noncapital sentences,” a principle

originating in Anglo-American legal thought in Section 20 of

the Magna Carta and finding support, as well, in the 1689

Declaration of Rights’ rejection of excessive bail and excessive

fines (emphasis added). In this case, moreover, the issue is

incarceration subsequent to a court order granting 2 writ of

—- we ew

In this case, whether the punishment imposed

on Mr. Scott is proportional depends on whether this

Court interprets a judicial writ of habeas corpus to

be a decision an officer of a state correctional

institution must abide by immediately, or one he

may abide by at his leisure.

Moreover, the punishment imposed on Mr. Scott

is unusual. As Justices Scalia and Marshall have

noted, the primary precursor to the Bull of Rights,

the 1689 Declaration of Rights, uses “cruel and

unusual” and “cruel and illegal” interchangeably.

Harmelin, supra, at 973-974, citing Furman, supra,

at 318, (Marshall, J., concurring). Given the

centrality of the Declaration of Rights to the

mers understandin “cr and unusual,”

Framers derstand of “cruel and u ual

AS EIS . a

“unusual” must at least include “illegal” |

habeas corpus, rather than the proportionality of a lawfully

imposed sentence.

ROE TN AAT RE SP NRL AL TRG PLL LENE, VOTE REE

punishments. And under Pennsylvania law, habeas

relief is provided to those unlawfully, or illegally,

detained. Morman, supra.

Moreover, such punishment is unusual in the

colloquial sense. This Court has found that in a

pretrial context, detention of more than 48 hours

without a judicial finding legitimizing such detention

is impermissible. County of Riverside v. McLaughlin,

500 U.S. 44, 58-59 (1991). In this case, Mr. Scott was

detained for twice as long after Judge Rehkamp had

issued an order setting him free. In contrast, the

Seventh Circuit has found that even an eleven-hour

delay in granting a prisoner’s release gives rise toa

jury question. Lewis v. O’Grady, 853 F.2d 1366 (7

Cir. 1988).

It would be relevant to this Court’s Eighth

Amendment inquiry if Mr. Scott’s punishment had

been sanctioned by legislatures, since “the clearest

and most reliable objective evidence of contemporary

values is the legislation enacted by the country’s

legislatures,” Atkins v. Virginia, 536 U.S. at 312

(emphasis added; citation omitted). See also Gregg v.

Georgia, 428 U.S. 153, 175 Goint opinion of Stewart,

Powell, and Stevens, JJ.). However, in this case, Mr.

Scott’s unlawful punishment resulted from the

issuance of an internal Department of Corrections

bulletin, which does not provide clear or objective

evidence of Pennsylvania's values, let hen the

nation’s. Where unelected bureaucrats impose

punishments by administrative fiat far from the

light of democratic scrutiny, those punishments do

not have the same democratic stamp of approval as

those imposed pursuant to publicly debated

legislation passed by representatives accountable to

their constituents.

3. The court below did not apply any of this

Court’s numerous relevant precedents in evaluating

Mr. Scott’s Constitutional claims. Instead, the panel

rested its decision on Mathews v. Eldridge, 424 U.S.

319, 335 (1976). However, Mathews deals not with

unlawful incarceration but with Social Security

benefits and with a Fourteenth Amendment property

interest rather than a liberty interest. This Court

has set out far more directly applicable precedent,

such as the Turner line of cases.

In Turner and its progeny, this Court has

recognized that prison operations are due deference.

Turner, supra, at 84-85, Overton v. Bazzetta, 539

U.S. 126, 132 (2003), Banks v. Beard, 548 U.S. _ ,

(2006). However, this Court has made clear that

such deference does not shield an “exaggerated

response,” Turner, 482 U.S. at 87, and that deference

is extremely limited where there are ready

alternatives for furthering the governmental

interest. Id. at 90 (additionally requiring that courts

consider the connection between a prison regulation

and the governmental interest at stake; alternative

means for prisoners to exercise the right at issue;

and the impact on guards, other inmates, and the

allocation of prison resources). In Johnson, supra,

this Court explained further that where a prisoner’s

right need not “necessarily be compromised for the

sake of proper prison administration,” “searching

judicial review” is appropriate. 543 U.S. at 510-511.

Defendants’ conduct in this case cannot withstand

such searching review. In the pretrial context, this

Court has placed explicit limits on the amount of

time for which a prisoner may be held awaiting a

probable cause determination. McLaughlin, supra.

While the issues accompanying release of a prisoner

are different than those facing officials preparing for

a probable cause determination, lower courts have

consistently found that if anything, release should be

a more expeditious process.

4. Qualified immunity does not shield

defendants’ unlawful conduct. Under Harlow, supra,

qualified immunity protects officials whose conduct a

reasonable person could have understood not to

violate any of the plaintiff's rights. In this case,

however, the right to promptly be released once a

court orders it is self-evident. See McCurry v. Moore,

242 F. Supp. 2d 1167, 1178 (N.D. Fla. 2002) ("The

eduriyine constitutional right is well established.

When a prisoner's sentence has expired, he is

entitled to release.") Defendants adopted a dilatory

policy that would inevitably lead to the violation of

Mr. Scott’s constitutional rights and the rights of

every prisoner placed in a similar situation.

The question of whether a right is clearly established

nhe

is considered de novo. Elder v. Holloway, 510 U.S.

510, 516 (1997), citing Pierce v. Underwood, 487 U.S.

552, 558 (1988). For a right to be clearly established,

it is not necessary that “the very action in question

has previously been held unlawful,” merely that “the

unlawfulness must be apparent.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987), cited in Cannon

v. Macon County, 15 F.3d 1022 (11t Cir. 1994).

Moreover, the fact that deliberate indifference has

infected an administrative procedure for releasing

prisoners rather than taking place only in an

isolated incident provides no heightened immunity.

Berry v. Baca, 379 F.3d 764 (9t Cir. 2004). In Berry,

three arrestees detained between 26 and 29 hours —

less than one-third of the overdetention imposed on

Mr. Scott — brought suit against a sheriff in his

official capacity. The Court of Appeals found that

summary judgment was inappropriate because there

was a question of fact as to whether the county’s

policy amounted to deliberate indifference to the

detainees’ Constitutional rights. Similarly, in this

case, the unreasonable and unnecessary use of

regular mail rather than a fax or a sheriff reflects

deliberate indifference to the certain overdetentions

that will result from a multiple-day delay before the

correctional institution in question can even begin

processing the prisoner’s release. See, e.g., Fowler v.

Block, 2 F. Supp. 2d 1268, 1277-79 (C.D. Cal. 1998),

rev'd on other grounds, 185 F.3d 866 (9th Cir. 1999)

(“"in the face of [a] state court's ‘clearly established'

release order, it was unreasonable for the [Sheriff] to

do more than simply "check-out" the Plaintiff after

he was returned to custody”), cited approvingly in

Streit v. County of LA, 236 F.3d 552, 556 at n.1 (9t

Cir. 2001).

At a minimum, summary judgment on this issue

is inappropriate. Summary judgment should be

granted only when “the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law.” Fed.R.Civ.Proc. 56(c). To prevail, a

moving party without the burden of proof must

allege a lack of evidence which could meet the

burden in question. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The non-moving party may

then defeat the motion by setting out, by affidavit or

as otherwise provided in "Rule 56, “specific facts

showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); "Fed.R.Civ.Proc. 56(e). In evaluating a

summary judgment motion, the Supreme Court has

held that courts should draw all reasonable

inferences in favor of the non-moving party. See

Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 150-151 (2000), citing Lytle v. Household

Mfg., Inc., 494 U.S. 545, 554-555 (1990). In a Section

1983 case, a court’s role is to determine whether

"{t]Jaken in the lhght most favorable to the party

asserting the injury, [] the facts alleged show the

[defendants’] conduct violated a constitutional right,"

Saucier v. Katz, 533 U.S. 194, 201 (2001).

In the instant case, Defendants implemented

a policy that was obviously going to result in the

unwarranted punishment of every prisoner who was

granted a habeas writ by delaying his release. This

Court has held that where the risk of such

unwarranted punishment is obvious, knowledge of

the risk on the part of the defendants may be

inferred. Farmer v. Brennan, 511 U.S. 825, 844

SSRN AGE AA De LAE TE TUN RIES | BR

(1994). Consequently, Mr. Scott has raised a prima

facie case that Defendants knowingly violated his

rights. Whether such a violation constitutes

deliberate indifference and so gives rise to Section

1983 hability is “a classic issue for a fact finder.”

See Davis yv. Hall, 375 F.3d 703, 719 (8th Cir. 2004),

citing Armstrong v. Squadrito, 152 F.3d 564, 577

(7 Cir. 1998). See also Berry, supra, at 769 (the

factors contributing to a delay in implementing a

prisoner's release are “issues of fact, however, not

matters of law” and so questions for a jury rather

than appropriate issues to resolve at summary

judgment).

B. By Detaining Mr. Scott for Several

Days After His Writ Was Granted,

Defendants Violated His Fourteenth

Amendment Right to be Free From

Continued Detention.

1. A United States citizen may be deprived of

his liberty only after being accorded due process of

law. An administrative procedure that incarcerates

him for several days after his release his been

ordered deprives him of his liberty and affords him

no process at all.

The Ninth Circuit has read this Court to suggest

that an imprisoned individual may have a due

process right to be released in a reasonable time

after the reason for his detention ends. Brass v.

County of Los Angeles, 328 F.3d 1192 (9 Cir.

2001), citing Baker v. McCollan, 443 U.S. 137, 144-

46 (1979). Lower courts have repeatedly recognized

a Fourteenth Amendment right “to be free from

continued detention after it was or should have

been known that the detainee was entitled to

release.” Cannon v. Macon County, 1 F.3d 1558,

1563 (11th Cir. 1993). See also Fairley v. Luman,

27°

281 F.3d 913, 918 (9th Cir. 2002); Sanders Vv.

English, 950 F.2d 1152, 1162 (5th Cir. 1992).

In the matter sub judice, once Judge Rehkamp

signed Mr. Scott’s writ of habeas corpus, it was and

should have been known that Mr. Scott was entitled

to release. To the extent that officials at SCI-

Somerset were not aware for an additional four days,

that delay was due to an official policy that

inevitably delayed their receipt of Mr. Scott’s writ.

Applying the Mathews test to overdetention, as

the Third Circuit suggested, demonstrates

Defendants’ actions were constitutionally

impermissible. Under Mathews, a court should

balance three factors in determining the adequacy of

procedural safeguards provided to individuals whose

property interests are at stake: (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 probable value, if

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

government's interest, including the fiscal and

administrative burdens that the additional or

substitute procedures would entail. 424 U.S. at 332-

335. Here, an interest in avoiding unlawful

incarceration is very strong, stronger than any

possible peawente interest. That freedom is “at the

core of the liberty protected by the Due Process

Clause.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992)

(citing Youngberg v. Romeo, 457 U.S. 307, 316

(1982)). Indeed, "next to bodily security, freedom of

choice and movement has the highest place in the

spectrum of values recognized by our Constitution."

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir.

1989). As a result, Justice Kennedy has written,

“where the right at stake is the right to be free from

confinement at all” prisoners are entitled to

substantial procedural protections. Wilkinson v.

Austin, 545 U.S. 209, 225 (2003).

It is certain that individuals will wrongfully be

deprived of their protected liberty interest if the

government employs a more time-consuming

procedure, and the government has merely asserted

but provided no evidence to support the contention

that there is any fiscal or administrative benefit to

using regular mail rather than a speedier means of

communication. Forging a document and sending it

through the mail, for instance, is not obviously more

complicated than forging a document, faxing it, and

calling for confirmation.® Indeed, mailing the

original poses an unacceptable risk that it could be

8 Indeed, Pennsylvania permits faxed copies to be admitted into

evidence in court — so Defendants would suggest that they can

serve as the basis for a conviction or an acquittal, but not as a

justification for release. See 42 Pa. C.S.A. §6109. Sending the

order, or a copy, with the sheriffs who will return the prisoner

to his correctional institution is likely to be more secure than

either a fax or regular mail.

lost in the mail, requiring an additional hearing to

issue a second “original” order.

Defendants’ assertions fall well short of

demonstrating that the policy in question is

“necessary for proper prison administration,” as

required by Johnson, supra. Defendants have also

not shown that alternative methods would be more

expensive or more administratively complicated.

2. Qualified immunity does not shield

defendants’ unlawful conduct. As supra, qualified

immunity protects officials whose conduct a

reasonable person could have understood not to

violate any of the plaintiffs rights. The right to be

promptly released once a court orders it is self-

evident. McCurry, supra.

3. At the least, summary judgment on this

issue is inappropriate. Defendants have provided

only a rote, conclusory assertion that transmitting

original orders by regular mail is essential to prison

security. Courts draw all reasonable inferences in

favor of the non-moving party at this stage of the

litigation, Reeves, supra. Thus for summary

judgment to be appropriate, defendants would have

to have proffered enough evidence to convince this

Court that it would be unreasonable to draw the

inference that faxing Judge Rehkamp’s order or

sending it with the sheriffs who returned Mr. Scott

to the prison would be equally consistent with the

demands of prison security and the genuine need to

avoid forgery and improper release of prisoners. The

entire body of evidence submitted in support of this

assertion is the statement that “This policy is

necessary for security reasons and is required in

order to guard against falsification of records and to

ensure that the inmate’s release is proper and in

accordance with the Court’s instructions.” Sobina

Declaration at para. 6. This Court can and shovid

give deference to the reasonable needs of prison

operations under Turner, but that deference does not

extend to shielding unlawful conduct based on brief,

conclusory, and unsubstantiated assertions like

Defendant Sobina’s.

II. This Case Provides an Ideal Vehicle

for Addressing the Important Legal Question

of When a Plaintiff Subjected to Overdetention

may Recover Under 42 U.S.C. §1983.

A. There is a split in the circuits on this

issue.

1. There is no consensus in the lower courts on

what constitutes a permissible length of time to

effectuate an inmate’s release. Berry v. Baca, 369

F.3d at 771. In Berry, the Ninth Circuit noted that it

was not clear that the 48-hour period set out for pre-

trial detention in McLaughlin, supra, was

Pear

appropriate for detention subsequent to court-

ordered silat and that Lewis, supra, set out no

zone of presumptive reasonableness. Id.

Since Berry, the Eighth Circuit has also

addressed the issue in a number of cases, See, e.g.

Russell v. Hennepin County, 420 F.3d 841(8th Cir.

2005); Golberg v. Hennepin County, 417 F.3d 808

(8th Cir. 2005); Luckes v. Hennepin County, 415

F.3d 936 (8th Cir. 2005) and Lund v. Hennepin

County, 427 F.3d 1123 (8 Cir. 2005). The panel in

Lund, summarizing, noted that in cases involving a

24 hour detention after an inmate was told he would

be released “shortly after booking”, Luckes, a 10

hour overdetention due to a new computerized .

prison management system, Golberg, and a six day

overdetention due to an administrative error,

Russell, that Circuit had upheld summary judgment

in favor of administrators. 427 U.S. at 1127.

Consequently, the panel found that “Lund's claim...

that the County's outprocessing procedures delayed

his release for twelve hours with the knowledge of

the County and its officials” was also inadequate. Id.

Lund has been followed by numerous Eighth Circuit

cases since. See, e.g., Pederson v. Hennepin County,

170 Fed. Appx. 14 (8 Cir. 2006), Oertwig v.

Hennepin County, 162 Fed. Appx. 683 (8* Cir.

2006), Carter v. Hennepin County, 162 Fed. Appx.

682 (8th Cir. 2006), Sizer v. County of Hennepin, 162

Fed. Appx. 681 (8'> Cir. 2006), Dye v. Hennepin

County, 162 Fed. Appx. 678 (8th Cir. 2006), Murphy

v. County of Hennepin, 162 Fed. Appx. 677 (8 Cir.

2006), and Heryla v. Hennepin County, 162 Fed.

Appx. 676 (8‘» Cir. 2006). However, none of these

appellate cases involve an overdetention of more

than 24 hours.

The Seventh Circuit’s seminal case on the

subject is Lewis, supra. As noted supra, it provides

no zone of presumptive reasonableness to shield

overdetentions from judicial review. Indeed, the

Circuit has required justifications for even

detentions as short as four hours. Moore v.

Marketplace Restaurant, Inc., 754 F.2d 1336 (7 Cir.

1985), Gramenos v. Jewel Companies, Inc., 797 F.2d

432 (7'h Cir. 1986).9

The Fifth Circuit’s caselaw is vaguer. Whirl v.

Kern, 407 F.2d 781 (5+ Cir. 1968), cert denied, 396

U.S. 901, 90 S. Ct. 210, 24 L. Ed. 2d 177, notes that a

jailer’s duty to effect his prisoner’s release is

9 In a subsequent decision, the Circuit held that Bradley Center

ticket scalpers who were detained up to twenty-one hours did

not have a cause of action for their overdetention. Chortek v.

City of Milwaukee, 356 F.3d 740 (7*» Cir. 2004). However,

Chortek dealt with individuals detained for less than one day

rather than four, immediately subsequent to their arrest rather

than subsequent to the issuance of an order granting their

release, and delayed only by the “natural backlog in processing

at PPS” rather than the inevitable result of government policy.

Id. at 748.

breached after “a reasonable length of time,” though

considerably less than the nine months at issue in

that case. Id. at 792. Applying Whirl, the Fifth

Circuit also found that thirty days was

unreasonable. Douthit v. Jones, 619 F.2d 527, 532

(5th Cir. 1980).

In sum, there is considerable disagreement

within the circuits on the deference courts ought to

provide for prison administrators in granting a

7 reasonable amount of time to ensure a prisoner's

release. However, the District Court for the District

of Columbia recently found that “the great weight of

precedent suggests that release must occur within a

matter of hours after the right to it accrues, and that

after some period of hours -- not days -- a

presumption of unreasonableness, and thus

unconstitutionality, will set in.” Barnes v. District of

Columbia, 2007 U.S. Dist. LEXIS 20856 (D.D.C.

2007), at 12.

As the D.C. District Court’s conclusion

suggests, while the circuits are divided on what

amount of elapsing time will forfeit administrators’

presumption of reasonableness, it is clear that in the

matter sub judice, the Third Circuit’s brusque

dismissal of Mr. Scott’s constitutional claims placed

it on the most extremely deferential end of the

spectrum in terms of standing up against state

overdetention.

2. This case provides an opportunity for this

Court to resolve the Circuit split by adopting a

presumptive limit, akin to Mclaughlin’s, for

overdetention of prisoners whose release has been

ordered or whose sentences have expired. Several

decisions argue for a lower limit. See Brass, 328 F.3d

at 1202 (“One might conclude that when a court

orders a prisoner released - or when, for example, a

prisoner's sentence has been completed - the outer

bounds for releasing the prisoner should be less than

48 hours’); Berry, 379 F.3d at 771-72 (‘Applying

McLaughlin's stringent proof requirement to post-

release detentions of less than forty-eight hours

would be difficult to reconcile with the fact that, for

the plaintiffs at issue here, there has been a judicial

determination that they are entitled to freedom from

the criminal justice system. Thus, the societal

interest in the processes that result in delay, while

significant, may not be as weighty as in the probable

cause context’).

Analyzing those cases, one commenter has

proposed a 24-hour presumptive limit.!° Patricia E.

Simone, NOTE, A Presumptive Constitutional Time

Limit for Administrative Overdetention of Inmates

10 Justice Scalia proposed a 24-hour time limit for probable

cause determinations in McLaughlin. 500 U.S. at 70 (Scalia, J.,

dissenting).

Entitled to Release, 81 Notre Dame L. Rev. 719, 738

(2006). In the instant case, McLaughlin's

presumptive time limit was doubled — so whether or

not the jurisprudence and scholarship suggesting a

lower time limit is appropriate in this context are

correct or feasible, the McLaughlin standard itself

was dramatically exceeded and liability is

appropriate. Moreover, the Eighth Circuit cases

refusing to impose liability all dealt with shorter

;

}

i”

;

time periods. Consequently, the ambiguity of the

caselaw on this issue is important, but does not in

any way alter the conclusion that to incarcerate a

prisoner for four days after he is granted a writ of

RAS

habeas corpus violates his Constitutional rights.

) Writing for the McLaughlin court, Justice

O’Connor also explained why a bright-line rule is

necessary and desirable:

[A]s lower court decisions applying Gerstein

have demonstrated, it is not enough to say that

probable cause determinations must be

“prompt.” This vague standard simply has not

provided sufficient guidance. Instead, it has led

to a flurry of systemic challenges to city and

county practices, putting federal judges in the

role of making legislative judgments and

overseeing local jailhouse operations.

500 U.S. at 55-56 (citations omitted).

Similarly, overdetention has been challenged in a

wide variety of ways, and different Circuits have

adopted different standards. A bright-line rule

delineating where the zone of presumptive

reasonableness, if any, ends, and when prisoners

have a clearly established right to release, would end

the proliferation of different “federal law” standards

in different circuits, provide guidance to

administrators and confidence in a genuinely prompt

release to prisoners.

3. The circuit split does not mitigate against the

conclusion that Mr. Scott’s clearly established

Constitutional rights were violated. Initially, the

appellate cases reflectin, the proliferation of

standards applied by different Circuits to cases like

Mr. Scott’s differ on whether the right to release in

certain time periods is clearly established, not

whether it exists. Moreover, while there is division

among the Circuits about where to draw the line on

overdetention, neither Defendants nor the Third

Circuit have cited caselaw finding an overdetention

this lengthy to be reasonable. In a legal context

where the Circuits are deeply divided, the Third

Circuit has dramatically decreased prisoners’ legal

recourse when subjected to administrative

overdetention.

B. Overdetention is a serious and

widespread problem.

1. Several circuits have had to confront suits

challenging overdetention of prisoners. Los Angeles

County has been forced to settle a suit by a class of

400,000 overdetained inmates for $27 million.

Simone, supra, at 721, citing Steven H. Pollak,

Georgia County Faces Class Action over Jail

Procedures, Recorder (S.F.), Apr. 30, 2004, at 3.

Similar claims have arisen in Atlanta, Chicago,

Washington, Hawau, and now Pennsylvania. Id. at

719-720, citing Rhonda Cook, Fulton Jailers Accused

of Holding Inmates Too Long, Atlanta J.-Const., Jan.

28, 2005, at Al; James G. Sotos, Holding Pattern: |

Detainee States Claim, Chi. Daily L. Bull., July 22,

2004, at 6; Jason Cherkis, Hard Time: Federal Judge

Slams the District for Overdetaining Inmates, Wash.

City Paper, April 4, 2007; Barnes, supra; Bynum v.

District of Columbia, 214 F.R.D. 27, 42 (D.D.C. :

2003); Tapaoan, et al. v. Hawan, Civil No. 1-000815

(D.Hi. 2003) (settled for more than $1 million).

2. In each case, overdetention hits at the heart

of a society based on the rule of law: the principle

that the government may not hold one of its citizens

in custody without judicial approval. Federal courts

have long recognized, as the Fifth Circuit did in

Whirl, that to hold officials liable before a

“reasonable” amount of time has passed would be

unjust. However, without guidance from this Court,

what constitutes a reasonable amount of time can

and does vary case-by-case and circuit-by-circuit. On

such a fundamental issue, a consistent rule is

necessary and appropriate. Such a rule would

provide prison officials better guidance and inmates

awaiting release surety that they could expect to be

released within a certain amount of time and, if not,

that thoy would have legal recourse.

C. This Case is an Ideal Vehicle for

Resolving the Question.

This case presents no extraneous issues.

Defendants’ statements are clear that Mr. Scott

remained in prison subsequent to Judge Rehkamp’s

order granting his release due to official Department

of Corrections policy, and give a cursory justification

of that policy. See Sobina Declaration. This cursory

justification is inadequate to support summary

judgment, so the issue in the case is clear: whether

an inmate who has been detained for several days

after the issuance of a court order granting his

release has a cause of action to recover.

CONCLUSION

For the foregoing reasons, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted by,

Michael D. Reed

Mette Evans & Woodside,

P.C.

3401 North Front Street,

Suite 202

Harrisburg, PA 17110

(717) 232-5000

Dated: 12/20/07 _—si By:

Elizabeth J. Goldstein

Arthur R. Traldi

Elizabeth Goldstein, P.C.

355 North 215 Street,

Suite 202

Camp Hill, PA 17011

(717) 724-0266

RONALD K. SCOTT

Petitioner,

KEITH B. QUIGLEY, ET AL.

Respondents.

Appendix

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-3330

RONALD K. SCOTT,

Appellant

VS.

KEITH B. QUIGLEY, Honorable Judge; JOSEPH

REHKAMP, Honorable Judge; R. SCOTT CRAMER,

District Attorney; CHAD CHENOT, District

Attorney; S.C. WALTZ III, Public Defender;

BRENDALBRIGHT, Clerk of Courts; ELIZABETH

FROWNFETTER, District Justice; JAMES MOYER,

JR., District Justice; JEFFREY A. BEARD,

Commissioner, PA DOC; RAY J. SOBINA,

Superintendent, SCI Somerset; PERRY COUNTY,

PA; PA DEPT OF CORRECTSION.

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

(D.C. Civ. No. 03-CV-00768)

District Judge: Honorable A. Richard Caputo

Submitted Under Third Circuit L.A.R.34.1(a)

September 18, 2007

Before: SLOVITER, SMITH and WEIS,

Circuit Judges

Filed September 26, 2007

Opinion

WEIS, Circuit Judge.

Plaintiff in this action was convicted of

robbery in state court on April 17, 2000, and began to

serve his sentence. The court granted bail, which

plaintiff posted on February 13, 2002. At that time,

he was imprisoned in State Correctional Institution

at Somerset (“SCI-Somerset”). He was not released,

however, because of detainers lodged against him.

On Thursday, February 28, 2002, the

plaintiffs detainers were paid and the court ordered

him released on bail. That same day, the Perry

County Sheriffs Office sent a certified copy of the

order granting the plaintiffs released to officials at

SCI-Somerset via United States Postal Service. SCI-

Somerset received the order four days later on

Monday, March 4. Upon receiving the documents,

officials at SCI-Somerset completed esiilieakion

procedures and approved the plaintiffs release that

day.

At that time, Pennsylvania Department of

Corrections policies required satisfaction of all

outstanding detainers before an inmate could be

released. Moreover, an inmate was not to be

released on bail until prison officials received an

original, certified court order allowing bail, an order

setting bail, and a signed receipt that bail was paid.

Defendant, Superintendent Sobina, stated that these

policies were “necessary for security reasons and

[were] required in order to guard against falsification

of records and to ensure that the inmate’s release is

proper and in accordance with the court’s

instructions”.

Plaintiff alleges he was unlawfully detained

during the four days that elapsed between the state

court order and his actual release. He asserted

numerous federal and state constitutional claims

against various state officials. The District Court

dismissed all of the plaintiffs claims except his

Eighth and Fourteenth Amendment claims against

corrections officials Sobina and Beard. Summary

judgment was later entered in their favor. Plaintiff

has appealed the grant of summary judgment.

The District Court dismissed the plaintiff's

Eight Amendment claim because he did not show

that defendants acted with deliberate indiffvrence.

See Moore v. Tartler, 986 F.2d 682,686 (3d Cirt,

1993). The evidence supports the District Court’s

conclusion that prison officials responded promptly

to the plaintiffs request for inecenitiion and acted

quickly to release him once they received the

necessary paperwork. Moreover, plaintiff has not

shown that he was denied due process. The

regulatory procedures adopted by the Department of

Corrections are reasonable and constitutional. See

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)

(applying three-part analysis to determine

constitutionality of administrative procedures). The

District Court, thacelors, properly granted summary

judgment for defendants.

Accordingly, we will affirm the Order of the

District Court.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVNIA

RONALD K. SCOTT,

Plaintiff,

CIVIL ACTION NO. 3:03-CV-768

(JUDGE CAPUTO)

KEITH B. QUIGLEY, et al.,

Defendants.

MEMORANDUM

Presently before the Court is Defendants’

Motion for Summary Judgment filed by Defendants

Jeffery A. Beard and Ray J. Sobina. (Dec. 40.) The

Court finds that Plaintiff has filed to submit evidence

from which a reasonable fact-finder could conclude

that Defendants Beard and Sobina, or any other

official, acted with deliberate indifference regarding

Plaintiffs complaint concerning his continued

incarceration. Accordingly, the Court will grant

Defendants’ motion. In addition, the Court will

dismiss Plaintiffs remaining state law claims for

lack of jurisdiction pursuant to § 1331 and 28 U.S.C.

§ 1367.

BACKGROUND

On April 17, 2000, Plaintiff Ronald K. Scott

was convicted of two counts of robbery. On April 27,

2000, Judge Quigley, formerly a defendant in this

matter, sentenced Plaintiff to a term of incarceration

of twelve to twenty-four years. Plaintiff then

appealed this conviction. On July 31, 2001, Judge

Rehkamp, also formerly a defendant in this matter,

issued an order granting Plaintiff bail pending his

appeal. Judge Rehkamp set bail at $35,000.00 to be

paid in a form approved by him. After an

unsuccessful attempt at posting bail with

unencumbered property, Plaintiff posted bail on

February 13, 2002, through a bail bondsman.

Plaintiff was not released, however, because of

previously imposed detainers. On February 28,

2002, Plaintiff paid all detainers and Judge

Rehkamp ordered that Plaintiff be released. A

certified copy of the order was sent via United States

Postal Service on February 28, 2002, and was

received by the Department of Corrections on March

4, 2002. Plaintiff was released on bail that same day.

Plaintiff commenced the instant action pro se

on May 7, 2003. In the Complaint, Plaintiff alleged

violations of both the United States Constitution as

well as the Constitution of the Commonwealth of

Pennsylvania. Defendants filed the instant motion

on February 28, 2005. Plaintiff filed a brief in

opposition, to which Defendants replied. The matter

if fully briefed and ripe for disposition.

10 mers

LEGAL STANDARD

Summary judgment is appropriate if “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P.56(c).

A fact is material if proof of its existence or

nonexistence might affect the outcome of the suit

under the applicable substantive law. Se Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the

moving party need only establish that it is entitled to

judgment as a matter of law. Where, however, there

is a disputed issue of material fact, summary

judgment is appropriate only if the factual dispute 1s

not a genuine one. See id. at 248. An issue of

material fact is genuine if “a reasonable jury could

return a verdict for the nonmoving party.” Id.

Where there is a material fact in dispute, the

moving party has the initial burden of proving that:

(1) there is no genuine issue of material fact; and (2)

the moving party is entitled to judgment as a matter

of law. See CHARLES ALAN WRIGHT & ARTHUR

R. MILLER, FEDERAL PRACTICE AND

PROCEDURE: Civil 2D § 2727 (2d ed. 1983). The

moving party may present its own evidence or, where

the nonmoving party has the burden of proof, simply

point out the Court that “the nonmoving party has

failed to make a sufficient showing of an essential

element of her case.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).

All doubts as to the existence of a genuine

issue of material fact must be resolved against the

moving party, and the entire record must be

examined in the light most favorable to the

nonmoving party. See White v. Westinghouse Elec.

Co., 862 F.2D 56, 59 (3d Cir. 1988). Once the moving

party has satisfied its initial burden, the burden

shifts to the nonmoving party to either present

affirmative evidence supporting its version of the

material facts or to refute the moving party’s

contention that the facts entitle it to judgment as a

matter of law. See Anderson, 477 U.S. at 256-257.

The Court need not accept mere conclusory

allegations, whether they are made in the complaint

or a sworn stateznent. Lujan v. Nat'l Wildlife Fed’n,

497 U.S. 871, 888 (1990). In deciding a motion for

summary judgment, “the judge’s function is not

himself to weigh the evidence and determine the

truth of the matter but to determine whether there is

a genuine issue for trial.” Anderson, 477 U.S. at 249.

DISCUSSION

1) Federal Claims

As noted in the Court’s previous Memoranda,

the Complaint alleges violations of the Fifth, Sixth,

Eighth and fourteenth Amendments of the United

States Constitution. In the Court’s September 9,

2003, Memoranda, all of the Plaintiffs claims

brought pursuant to the Fifth, Sixth and Fourteenth

Amendments were dismissed for failure to state a

claim upon which relief may be granted. (Doc. 16 at

8-15.) Therefore, the only remaining claim against

Defendants Beard and Sobina is that they violated

the rights afforded Plaintiff under the Eight

Amendment by failing to release him from prison

upon the order issued by the Honorable C. Joseph

Rehkamp on February 28, 2002, because of DOC

Policy 11.5.1-4.

ere

In its previous Memorandum, the Court raised

the question concerning the proper standard under

which Plaintiffs Eight Amendment claim should be

evaluated. (Doc. 16 at 15.) The Court noted that

under the standard set forth in Tuner v. Safley, 482

U.S. 78 (1987), DOC Policy 11.5.1-4 must be

reasonably related to legitimate penological

interests. (id.) This was in error. Eighth

Amendment claims are subject to the more exacting

deliberate indifference standard “because the

integrity of the criminal justice system depends on

full compliance with the Eighth Amendment.”

Johnson v. California.—U.S.--, 125 S. Ct. 1141, 1149-

50 (2005). Accordingly, the Court must evaluate the

constitutionality of DOC Policy 11.5.1-4 under the

standard set forth by the United States Court of

Appeals for the Third Circuit in Moore v. Tartler, 986

F.2d 682 (3d Cir. 1993).

Plaintiff alleges that DOC Policy 11.5.1-4

caused him to be subject to incarceration without

penological justification. To establish § 1983 liability

for incarceration without penological justification in

violation of the Eighth Amendment, the United

States Court of Appeals for the Third Circuit

requires the convergence of three elements. Moore,

986 F.2d at 686 (3d Cir. 1993). First, Plaintiff must

demonstrate that a prison official had knowledge of

Plaintiffs problem, and thus of the risk that

unwarranted punishment was being, or would be

inflicted. Jd. Second, Plaintiff must establish that

the official either failed to act or took ineffectual

action under the circumstances, thus demonstrating

a deliberate indifference to the plight of Plaintiff. Jd.

Finally, Plaintiff must show a causal connection

between the official’s response to the problem and

the infliction of the unjustified detention. Jd.

On February 25, 2002, Plaintiff filed an

Inmate’s Request to Staff Members. (Doc. 41, Ex. 1-

B.) In the request, Plaintiff stated that his

incarceration was being continued despite the fact

that he had been granted bail. (td.) A Department of

Corrections official responded to Plaintiff the same

day indicating that the delay was caused by a lack of

certified paperwork. (id.) The evidence also suggests

that at the time Plaintiff filed the request, he was

not entitled to be released because of the existence of

detainers lodged against him. (Doc. 41, Ex. 1 { 8.)

The evidence submitted indicates that on February

28, 2002, Plaintiff satisfied the detainers in full. :

(Doc. 41, Ex. 1 | 9; Doc. 41, Ex. 1-E; Doc. 45, Ex. A {

1.) That same day, Judge Rehkamp ordered Plaintiff

be released from incarceration. (Doc. 41, Ex. 1-D.)

The order was then sent by the Perry County

Sheriffs Department to the Department of

Corrections on February, 28, 2002. (Doc. 41, Ex. 1-C;

Doc. 45, Ex. A J 8.) The evidence submitted

indicates that a letter from the Perry County

Sheriffs Department and Judge Rehkamp’s order

was received by the Department of Corrections on

March 4, 2002. (Doc. 41, Ex. 1 | 9; Doc. 41, Ex. 2 { 7;

Doc. 41, Ex. 1-C.) Plaintiff failed to submit any

evidence to the contrary. It is undisputed that the

Department of Corrections released Plaintiff on

March 4, 2002.

Deliberate indifference may be established

where a prison official refuses to address a question

of incarceration without penological justification

brought to his attention by an inmate. Sample v.

Diecks, 885 F. .2d 1099, 1110 (3d Cir. 1989). Unlike

situations where prison officials stood idly by while

prisoners’ contentions about the legality of their

continued detention when unaddressed, there is no

evidence in the instance matter that plaintiff

suffered a similar fate. In fact, Plaintiff has filed to

submit any evidence from which a reasonable fact-

finder could conclude that Defendants Beard or

Sobina, or any other official, acted with deliberate

indifference. Rather, the evidence suggest quite the

opposite. Consequently, the Court will grant

Defendant’s motion.

2) State Claims

Although never addressed previously, a review

of Plaintiffs Complaint reveals that he has asserted

violations of various provisions of the Constitution of

the commonwealth of Pennsylvania. (Doc. 1 at 5.)

The Court may exercise jurisdiction over these

claims pursuant to § 1367. Section 1367(a) states:

[I]n any civil action of

which the district courts

have original jurisdiction,

the district courts shall

have supplemental

jurisdiction over all other

claims that are so related

to claims in the action

within such original

jurisdiction that they form

part of the same case or

controversy under Article

III of the United States

Constitution. Such

supplemental jurisdiction

shall include claims that

involve the joinder or

intervention of additiomal

parties.

28 U.S.C. § 1367(a). Cases that “derive from a

common nucleus of operative fact” with federal

claims are part of the same case or controversy.

United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

725 (1966). The state law claims raised by Plaintiff

derive from the same operative facts as the federal

law claims, giving the Court jurisdiction under §

1367(a). The Court, however, “may decline to

exercise supplemental jurisdiction over a claim under

subsection (a) if ... the district court has dismissed

all claims over which it has original jurisdiction

.... 28 U.S.C. § 1367(c). The Supreme Court has

indicated that “if the federal claims should be

dismissed before trial, even though not insubstantial

in a jurisdictional sense, the state claims should be

dismissed as well.” United Mine Workers, 383 U.S. at

726.

Here, the Court will grant summary judgment

on the only remaining federal claim. The remaining

claims allege violations of various provisions of the

Constitution of the Commonwealth of Pennsylvania.

The Court declines to exercise jurisdiction over these

state law claims. Therefore, the Court will dismiss

the remaining state law claims for lack of jurisdiction

pursuant to § 1367(c).

CONCLUSION

Plaintiff failed to submit any evidence that

Defendants Beard or Sobina, or any other official,

acted with deliberate indifference. Accordingly, the

Court will grant Defendants’ motion. In addition,

the Court will dismiss Plaintiffs remaining state law

claims for lack of jurisdiction pursuant to § 1367(c).

An appropriate Order follows:

June 7, 2005 /s/ A. Richard Caputo

Date A. Richard Caputo

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

RONALD K. SCOTT,

Plaintiff , CIVIL

ACTION NO. 3:03-CV-768 ,

Vv.

(JUDGE CAPUTO)

KEITH B. QUIGLEY, et al.,

Defendants.

ORDER

NOW, this 7% day of Jude, 2005, IT IS HEREBY

ORDERED that:

(1) Defendants’ Motion For Summary Judgment

(Doc. 40) is GRANTED.

(2) Plaintiffs remaining state law claims are

DISMISSED.

(3) The Clerk of the Court shall mark this case

CLOSED.

/s/ A. Richard Caputo

A. Richard Caputo

United States District Judge

COMMONWEALTH OF PENNSYLVANIA

IN THE COURT OF COMMON PLEAS

OF THE 41ST JUDICIAL DISTRICT

PERRY COUNTY BRANCH

RONALD KEVIN SCOTT: NO. 501 OF 1999

ORDER

AND NOW, February 28, 2002, this matter

having come forward on a habeas corpus matter,

IT IS HEREBY ORDERED AND DIRECTED

that this Court’s order dated July 31, 2001, setting

bail in the amount of $35,000, in a form to be

approved by this Court; is hereby confirmed as it

appears to the Court this date that bail has been

posted by a bail bondsman,

IT IS FURTHER ORDERED AND DIRECTED

that the defendant be released on bail on the

standard terms and conditions of bail, with the

additional condition that if the defendant is involved

in any criminal activity, then bail shall be revoked.

cc:

BY THE COURT,

/s/

C. JOSEPH REHKAMP, JUDGE

DA’s Office

Kevin Prosser, Esq.

Probation

File

SCI

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.