McCrery v. MarkMcCrery v. Mark
MEMORANDUM
Plaintiff Michael McCrery, an inmate at S.C.I. Graterford, has filed a
pro se
complaint pursuant to
I.Facts
When considering a summary judgment motion, the court must take as true the evidence of the non-movant and draw all justifiable inferences in the non-movant’s favor.
See Anderson v. Liberty Lobby, Inc.,
In August of 1988, plaintiff was convicted of the first degree murder of his estranged wife and was sentenced to life in prison. On August 8, 1988 he was transferred to E.E.C.C. Graterford and he was soon admitted tо the Mental Health Unit there for assessment and classification. On or about August 26, 1988, plaintiff received classification for S.C.I. Graterford.
Defendant Mark has been a correctional counselor at S.C.I. Graterford since April 1989. Mark Aff. at ¶ 1. McCrery was one of the inmates assigned to Mark for monitoring. According to defendant, his responsibilities as a counselor involved preparing a prescriptive program plan about once a year, completing an annual casе review, and attempting to contact the inmate at least once every six months. Id. at ¶ 3.
At issue in plaintiffs complaint is the defendant’s July 3, 1990 Annual Case Review (“ACR”) of plaintiff. See Plaintiffs Ex. 13; Defendant Ex. H. The report, completed in plaintiffs absence since plaintiff refused to attend the scheduled meeting (Complaint at ¶ 4), states, that defendant’s “Areas of Concern” are plaintiffs “mental health,” “assaul-tiveness,” and “suicidal” tendencies. Id. The ACR further states:
1. McCrery continues to refuse to honor treatment passes.
2. Recommend Impulse Control Group.
3. Report any problem [to] counselor, Mental Health, or other appropriate staff member.
4. He has maintained a clear conduct record since reception.
Id. In place of plaintiffs signature, defendant wrote “in absentia.” Id. Defendant explains that he based plaintiffs July 3 ACR on defendant’s prior contacts with plaintiff and on a review, of earlier records and reports concerning plaintiff. See Mark Affidavit at ¶31; see also Plaintiffs Ex. 4.
Plaintiff mailed his present complaint to the Clerk of the Court for the Eastern District of Pennsylvania on or about July 12, 1990 2 — nine days after the July 3 ACR was completed. In his complaint plaintiff contends that defendant’s descriptions of plaintiff as assaultive, suicidal and in need of impulse control are “pejorative labels” that have no substantive basis. Complaint at ¶¶ 5, 6, and 8. Plaintiff argues that his records 'do not support defendant’s conclusions, particularly with regard to his supposed suicidal ideation. Plaintiff did not file a grievance with the prison officials regarding the allegedly false July 3 ACR. Gf. Defendant’s Ex. L (copy of Administrative Directivе: Commonwealth of Pennsylvania Bureau of Corrections Consolidated Inmate Grievance Review System).
In the time between the filing of plaintiffs complaint and the filing of defendant’s motion for summary judgment on August 2, 1991, the plaintiff has undergone two further psychological evaluations. On November 29,
II. Discussion
Plaintiff seeks two forms of injunctive relief: first, that defendant should enter into plaintiffs prison record a report disclaiming the false descriptions in the July 3 ACR; and second, that the July 3 ACR be expunged from the prison filé. Complaint at ¶¶ D, E. I will address each of-these in turn.
A. A Disclaimer
From this court’s view, plaintiff has already received the equivalent of a disclaimer. While his prison -file does not contain a report or letter specifically deeming the statements in the July 3 ACR false, there aré two psychological examinations of plaintiff completed since the challenged ACR, both calling into question its reliability. These examinations both disclose that the July 3 ACR was based on a review of plaintiffs records, not on a personal examination. Moreover, both observe that plaintiff is not currently exhibiting signs of the supposed areas of concern — assaultiveness, lack of impulse control, and suicidal ideation — listed in the July 3 ACR.
In his November 29, 1990 examination of plaintiff, Dr. Courturier reported:
[Mr. McCrery] is an intellectually gifted individual ... The depression and suicidal ideation which were described in Mr. McCreary’s [sic] earlierreports [sic] did not appear in the present evaluation. No salient evidence of a thought or emotional disorder was noted. Nor does the inmate appear assaultive or display impulse control problems. Past ACRs of 1989 and 1990 which identified concerns in the area of suicide, impulse control and assaultive behavior were based on a review of prior records and reports.... [Mr. McCrery] does not appear to be suicidal or assaultive and appears to display adequate impulse control.
Plaintiffs Ex. 4. In addition, Dr. Courturier notes that “the inmate ... is presently suing his counselor.”- Id.' In defendant’s January 17, 1991 ACR of plaintiff — an evaluation signed by plaintiff — defendant indicated that plaintiffs “mental héalth,” “assaultiveness,” and' “suicidal” ideation were still “Areas of Concern.” Defendant’s Ex. K. However, this time defendant qualified his statements. With respect to plaintiffs alleged “assaultiveness,” defendant stated that this conclusion was “based on [plaintiffs] offense only.” Id. Defendant further explained, “[s]ince [plaintiffs] reception, he has a clear conduct record. Staff has not reported any assaultive behavior. A recent psychological evaluation does not indicate any assaultive concerns.” Id. As for plaintiffs “suicidal” tendenciеs, defendant made clear that the conclusion was “based on prior records,” and that “[a] recent psychological evaluation does not list any suicidal concerns.” Id. Plaintiff has not challenged the January 17 ACR either by presenting a grievance to prison officials or by filing suit.'
While the newer examinations do not'expressly disclaim the July 3 ACR, they do the equivalent. They discredit the ACR to the extent that they point out that the earlier report is neither based on a personal examination of plaintiff nor accurately reflective of plaintiffs current condition. Moreover, Dr. Courturier’s reference to the present suit against plaintiffs counselor further advises the person reviewing plaintiffs files to question plaintiffs earlier evaluations. The newer examinations make it highly unlikely that the July 3 ACR will be relied upon in any significant way.
B. Expungement
In certain limited circumstances, an inmate has the constitutional right, founded on the principles of due process, to have incorrect information éxpunged from his record.
See Paine v. Baker,
(1) that information is in his file, (2) that the information is false, and (3) that it is relied on to a constitutionally significant degree.
Paine,
Defendant argues that plaintiff has failed under
Paine
to claim that his constitutional rights have been violated by the presence of the July 3 ACR in plaintiffs prison file. Accordingly, defendant contends that he is entitled to summary judgment on plaintiffs
There is no dispute that plaintiff has satisfied the first Paine condition. Plaintiff alleges that the challenged ACR is in his prison file, and defendant appears to concede this. As for the second condition, plaintiff suggests in his legal memorandum that defendant has admitted that the information in the July 3 ACR is false. Although I do not interpret defendant’s papers as making this concession, I will assume for purposes of argument that a genuine issue of material fact exists as to whether the statements made on the July 3 ACR are erroneous. 4 I make this assumption because I believe defendant’s motion can be resolved on consideration of the third Paine condition: whether the information in plaintiffs file has been “relied on to a constitutionally significant degree.”
On review, this court finds that plaintiff has failed to satisfy the third condition in
' Second, the ways in which plaintiff predicts the July 3 ACR will be relied upon, assuming it will be some day, are not constitutionally significant. Plaintiff suggests that the report could affect his eligibility for parole, commutation or pardon. Seе-Plaintiffs Mem. in Opp. at 16. In addition, plaintiff contends in his complaint that the • July 3 ACR will “preclude plaintiff from certain programs and considerations in the institution wherein he is confined.” Complaint at ¶6.
5
Because plaintiff is an inmate, the.inquiry into what interests are liberty interests entitled to due process protection is somewhat unusual since, where there is “a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”
Meachum v. Fano,
Plaintiff argues that under
Greenholtz,
in which Nebraska inmates were found
By contrast, the Pennsylvania Probation and Parole Act, 61 Pa.Stat.Ann. § 331.21 cannot be said to create an expectation of parole. Most importantly, under 61 Pa.Stat.Ann. § 321, inmates sentenced to life imprisonment, such as plaintiff, are not even eligible for parole. Thus, plaintiff cannot seriously argue that he reasonably anticipates release on parole.
Still, plaintiff suggests that the law might change some day such that he might be considered for parole-release. Even if this occurred, plaintiff would have no reasonable expectation of parole. As compared to the Nebraska, statute with its mandatory language, the Pennsylvania Probation and Parole Act gives the parole board broad discretion to:
release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment, whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby.
Accordingly, Pennsylvania courts considering the issue in the wake of
Greenholtz
have concluded that the statute has not created a liberty interest in parole.
See, e.g. Counts v. Penn. Board of Probation and Parole,
Nor does plaintiff have a liberty interest in the possibility of a pardon or commutation.' Like the decision to grant release on parole, the decision concerning pardon or commutation is not a purely fact-based calculation wherein an inmate сould derive a sense of entitlement, but it is a discretionary and predictive determination. Noting this similarity of processes, the Supreme Court stated in
Connecticut Board of Pardons v. Dumschat,
Greenholtz ... compels the conclusion that an inmate has “no constitutional or inherent right” to commutation of his sentence .... In terms of the due process clause, a ... felon’s expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate’s expectation that hе will be transferred to another prison; it is simply a unilateral hope.
Finally, there is also no liberty interest in obtaining certain work assignments or in participating in certain prison programs. According to the Fourth Circuit in Paine:
an allegation that false information was relied on to make ... a decision [regarding internal matters like work assignments] would not be constitutionally significant.
C. Failure to file a grievance
Even if plaintiff had alleged the deprivation of certain liberty interests, this court would still be compelled to dismiss plaintiffs
as a jurisdictional predicate to filing an action under§ 1983 , the inmate must allege that the prison officials have deprived him of this right [to the expungement of erroneous information in prison, files]. This means that the application for ex-punction must be made in the first instance to prison authorities.
, This is not a requirement of exhaustion, but rather a requirement of jurisdiction. State prison authorities cannot be said to have denied an inmate’s right to have erroneous information expunged from his file, unless they have been requested to do so and have refused.
An inmate who believes his file to contain false information should notify prison officials in writing, specifying what information he believes is false and what the true facts are. 7
Paine,
“To state a claim under
The right to have false information eliminated from a prison file is deprived in a manner actionable under
Plaintiffs argument is inapposite
8
for it ignores the basic problem with his complaint. Plaintiff has neither alleged that he made his objections concerning the July 3 ACR known to defendant, nor, more importantly, has plaintiff alleged that defendant refused to modify the supposedly erroneous ACR from plaintiffs file despite plaintiffs objections. Without these allegations, plaintiffs complaint fails to assert that defendant acted to deprive plaintiff of his constitutional right to have his file free of false information. Thus, plaintiff has failed to state a claim under
III.- Conclusion
For the foregoing reasons, defendant’s motion for summary judgment will be granted.
Notes
. Plaintiff initially raised six claims in his complaint, five of which were dismissed as frivolous. Only the claim described in the text — count 4— remains. See August 16, 1990 Order.
. The date July 12, 1990 is derived from the cover letter to which plaintiff's complaint and a Motion to Proceed In Forma Pauperis was attached. While plaintiff’s Motion to Proceed In Forma Pauperis was filed on July 17, 1990, the complaint was not stamped as filed until August 16, 1990.
.
See United States ex rel. Silverman,
. A review of the records used by defendant in making his July 3 assessment makes it difficult to conclude that defendant’s report when made was erroneous. In virtually every record evaluation of plaintiff, there is some stated concern regarding plaintiffs suicidal notions. (1) On May 12, 1988 Dr. Sara Warren, staff psychiatrist at Nor-ristown State Hospital, dictated a memorandum concerning plaintiff upon his'discharge from the hospital. Although plaintiff suggests that Dr. Warren's memorandum supports his argument that his records do not show a suicidal ideation, Dr. Warren made the following comments: "He [McCrery] was transferred from Delaware County Prison because he was 'depressed and tearful.' The evaluating psychiatrist was concerned that he might try tо kill himself;” "While McCrery made no attempt to harm himself or others while in the hospital, he certainly has indicated that he would prefer to die by a natural event rather than going on and attempting to adjust to events over which his controls may be extremely limited;” "Follow [McCrery] closely for suicidal behavior and increased despair.” Plaintiff's Ex. 1. (2) On the August 5, 1988 document concerning plaintiff's August 8, 1988 transfer from the Delaware County Prison to Graterford, it states that plaintiff is "very suicidal.” Plaintiff's Ex. 6. (3) On August 9, 1988, upon arrival at Gratеrford, plaintiff underwent an Initial Psychiatric Session where it was noted that plaintiff attempted suicide on August 3, 1988. Plaintiff's Ex. 5. (4) On August 26, 1988 Dr. M. Sadar, Director of the Mental Health Unit at Graterford wrote of McCrery: "denies suicidal ideation. Does report ifftvhen his appeals are denied he will again consider suicide." (Plaintiff's copy of Dr. Sa-dar's report only has the first sentence that plaintiff "denies suicidal ideation.”) Defendant's Ex. C. (5) On October 24, 1988 a case review of plaintiff stated that he had a history of suicide ideation. Defendant’s Ex. D. (6) Finally, on July 28, 1989 defendant completed an ACR of plaintiff in absentia and marked the same areas of concern as he did the next year in the July 3 ACR, including suicidal ideation. Defendant's Ex. F.
The only documents not referring to plaintiff's suicidal ideation are a November 14, 1988 case review and a psychological examination by G. Fleischer, Ph.D., completed at the behest of plaintiff to combat the effort of Delaware County to terminate his parental rights.
Given the abundant record evidence of plaintiff’s suicidal tendencies, McCrery’s July 3 ACR is not obviously erroneous. "[I]t is not sufficient that the information is true but prejudicial, or that the inmate disagrees with the evaluations or opinions of others."
United States ex rel. Silverman,
. Plaintiff also states that the false information could be used to affect his relationship with his children.
See
Plaintiff's Mem. in Opp. at 16. It is true that a parent’s relationship with his child can not be terminated without due process.
See, e.g., Santosky v. Kramer,
If plaintiff's parental rights were not terminated, there would be no liberty interest at stake. Assuming though that the rights were terminated, thеre is no indication in plaintiff's pleadings or legal memoranda that the allegedly false information in the July 3 ACR was reviewed, yet alone relied upon, by the Delaware County Children and Youth Services in reaching its decision. "The court’s review of [a] claim [for violation of due process] is limited to 'the facts which constitute[d] significant factors'" in the decision affecting the liberty interest,
Murneigh v. Prisoner Review Bd.,
. In the absence of a state-created right, the Due Process Clause itself might still offer protection to an inmate where "consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by the person convicted of a crime.”
Vitek v. Jones,
. While the Paine court requires that a written application be made tо the prison authorities, this court can imagine circumstances where an inmate has. made his objections known to prison authorities through less formal means that should be recognized.
. -Moreover, the reasoning of the argument collapses in light of the Criminal History Record Information Act,