S. Holden, aka S. Nelson v. The PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shavez Holden, aka Shawvez Nelson, :
Petitioner :
:
v. : No. 634 M.D. 2020
: Submitted: August 27, 2021
The Pennsylvania Board of Probation :
and Parole; The Pennsylvania :
Department of Corrections; John E. :
Wetzel (Secretary of Corrections, PA. :
D.O.C.), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: October 28, 2021
Shavez Holden, aka Shawvez Nelson, pro se, has filed a petition for
review in the nature of a mandamus action. Holden alleges that in retaliation for his
exercise of his First Amendment right of access to the courts, U.S. CONST. amend. I,
the Department of Corrections (Department) provided incorrect information to the
Pennsylvania Board of Probation and Parole (Parole Board).1 As a result, Holden
was denied parole. Holden seeks an order requiring the Department to clear his file
of all false misconduct reports. The Parole Board, the Department and John E.
Wetzel, Secretary of Corrections (collectively, Respondents) have filed a
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board.
See Sections 15, 16 and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective
February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as
amended, 61 Pa. C.S. §§6101, 6111(a).
preliminary objection in the nature of a demurrer. We sustain the preliminary
objection and dismiss the petition.
In his petition, Holden alleges that he is an inmate incarcerated at the
State Correctional Institution (SCI) at Greene serving a sentence of 20 to 40 years
sentence. The petition further avers that Holden was previously denied parole on
November 7, 2018, and October 25, 2019. Most recently, he was denied parole on
October 9, 2020, and it is this most recent denial of parole that is the subject of the
instant petition. Petition at 3, ¶6.
In its decision of October 9, 2020, the Parole Board denied Holden
parole for the following reasons:
Your institutional behavior, including reported overall
misconducts.
Your risk and needs assessment indicating your level of risk to
the community.
Other factors deemed pertinent in determining that you should
not be paroled: Your need for an extended period of positive
adjustment.
Petition, Exhibit B at 1. The Parole Board advised Holden that he would be reviewed
for parole in or after October 2021, and at his next interview, it would review his file
and consider: whether he complied with the Department’s order that he undergo
mental health services, whether the Department recommended parole, and whether
he has a clear conduct record. Petition, Exhibit B at 1-2.
Holden’s petition alleges that when he was interviewed for parole, one
of the Parole Board members, “Ms. Barto,” told him that there was a note that he
“put a hit out on a[n] inmate for working with the authorities in [his] last institution
. . . [which was] very disturbing[, and] it’s gonna be very hard [for him] to get five
2
votes [for parole].” Petition at 4, ¶A (emphasis in original omitted). Holden alleges
that he was never made aware of this allegation and was never disciplined for such
conduct. Id. His petition further avers that prior to November of 2018, Holden had
filed a lawsuit pursuant to 42 U.S.C. §1983 (relating to violations of civil rights)
against 30 employees of the Department for prison conditions.2 Specifically, the
federal lawsuit charged that the prison’s grievance hearings lacked fairness and
impartiality because the hearing examiners routinely credit the written reports of
prison staff over the inmate’s rebuttal testimony. In the federal lawsuit, Holden also
alleged that Department employees imposed cruel and unusual punishment by
placing him in the restricted housing unit; unlawfully seized his personal property;
and filed false misconduct reports against Holden in retaliation for grievances he had
filed against prison staff at SCI-Forest. While the federal lawsuit was pending, the
Department employees were “allowed to add fabricated information to [his] file for
the Parole Board to review.” Petition at 4, ¶9. By way of example, the
Superintendent of SCI-Forest, Derek Oberlander, a defendant in the federal lawsuit,
was allowed to provide information to the Parole Board on Holden’s request for
parole.
Holden alleges that the Parole Board relied upon fabricated information
from the Department to deny him parole. He further alleges that he has met all the
prerequisites that the Parole Board stated in October 2020 that it would consider at
his next parole review. He took the additional institutional programming, complied
with the Department’s mental health services, received the Department’s
institutional support for parole, provided a viable release plan, and maintained a clear
conduct record. Despite meeting all these requirements, the Parole Board wants him
2
Holden v. Wetzel (W.D. Pa. No. 1:18-CV-237-SPB).
3
to meet a new prerequisite for parole: a longer period of positive adjustment. Petition
at 7, ¶C.
Holden seeks an order to compel the Department to remove false
misconduct reports from his files; to compel the Parole Board to grant him a new
hearing without consideration of the false information previously added to his file;
and to compel the Parole Board to conduct the hearing without the participation of
attorneys who represent the Department.
In response, Respondents have filed preliminary objections. They
object to the form of the pleading, which is not divided into paragraphs numbered
consecutively, with each paragraph containing only one material allegation as
required by Pennsylvania Rule of Civil Procedure 1022, Pa.R.Civ.P. 1022.3
Additionally, Respondents have demurred, contending that a mandamus action is
not available to challenge the discretionary decision to deny parole.
In ruling on preliminary objections, the Court “must accept as true all
well[-]pleaded material allegations in the petition for review, as well as all inferences
reasonably deduced therefrom.” Buoncuore v. Pennsylvania Game Commission,
830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are not required to accept as true
“conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion.” Id. For this Court to sustain preliminary objections, “it
must appear with certainty that the law will not permit recovery[.]” McCord v.
Pennsylvania Gaming Control Board, 9 A.3d 1216, 1218 n.3 (Pa. Cmwlth. 2010)
(quotations omitted). Should there be any doubt, this Court should overrule the
preliminary objections. Fumo v. Hafer, 625 A.2d 733, 734 (Pa. Cmwlth. 1993).
3
It states that “[e]very pleading shall be divided into paragraphs numbered consecutively. Each
paragraph shall contain as far as practicable only one material allegation.” Pa.R.Civ.P. 1022.
4
First, the Court will address Respondents’ preliminary objection in the nature of a
demurrer.
Mandamus is an extraordinary remedy that is designed to compel the
official performance of a ministerial act or mandatory duty. McGriff v. Pennsylvania
Board of Probation and Parole, 809 A.2d 455, 458 (Pa. Cmwlth. 2002). “A writ of
mandamus may be issued only where there is a clear legal right in the petitioner, a
corresponding duty in the respondent, and a lack of any other appropriate and
adequate remedy.” Id. Mandamus will not lie to compel a discretionary act or to
direct the exercise of discretion in a particular way. Clark v. Beard, 918 A.2d 155,
159 (Pa. Cmwlth. 2007). “Mandamus is not appropriate to challenge whether an
agency considered improper factors, whether its findings were supported by the
record in rendering a decision, or whether its stated basis was pretext as such
question takes place in the scope of an appeal.” Garcia v. PA Board of Probation
and Parole (Pa. Cmwlth., No. 10 M.D. 2012, filed July 25, 2012) (unreported),4 slip
op. at 3 (citing Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d
766 (Pa. Cmwlth. 1997)). Mandamus will lie against the Parole Board only where
it has not followed the law or the proper procedures in ruling on an application for
parole. Weaver, 688 A.2d at 777.
Under Section 6135 of the Prisons and Parole Code (Parole Code), 61
Pa. C.S. §6135, the Parole Board is required to consider several factors when
determining whether to grant parole to an inmate. These factors include:
(1) The nature and circumstances of the offense committed.
(2) Any recommendations made by the trial judge and
prosecuting attorney.
4
The Pennsylvania Supreme Court affirmed this decision per curiam. See Garcia v. PA Board of
Probation and Parole, 69 A.3d 235 (Pa. 2013).
5
(3) The general character and background of the inmate.
(4) Participation by an inmate sentenced after February 19, 1999,
and who is serving a sentence for a crime of violence as defined
in 42 Pa. C.S. §9714(g) (relating to sentences for second and
subsequent offenses) in a victim impact education program
offered by the Department….
(5) The written or personal statement of the testimony of the
victim or the victim’s family submitted under section 6140
(relating to victim statements, testimony and participation in
hearing).
(6) The notes of testimony of the sentencing hearing, if any,
together with such additional information regarding the nature
and circumstances of the offense committed for which sentence
was imposed as may be available.
(7) The conduct of the person while in prison and his physical,
mental and behavioral condition and history, his history of family
violence and his complete criminal record.
61 Pa. C.S. §6135(a) (emphasis added). The Parole Board has discretion to decide
which factors to afford the most weight in considering whether to parole an inmate.
Hibbard v. Pennsylvania Board of Probation and Parole, 816 A.2d 344, 347 (Pa.
Cmwlth. 2003) (Parole Board has the discretion to give one factor greater weight or
even the entire weight in denying an inmate parole).
In its decision of October 9, 2020, the Parole Board denied Holden
parole because of his conduct while in prison, his risk to the community, and the
need for an extended period of positive adjustment. Petition, Exhibit B. Even if
Holden demonstrated that the Department’s misconduct reports were incorrect, this
is not dispositive. The Parole Board cited other reasons, i.e., risk to the community
and the need for a longer period of positive adjustment.
6
In Burkett v. Frank, 841 A.2d 646 (Pa. Cmwlth. 2004), this Court
considered a similar argument. There, the inmate filed a petition asserting that a trial
court judge and district attorney, in retaliation against him for a previous successful
habeas corpus petition, recommended that the Parole Board not grant him parole.
Burkett asserted that the Parole Board’s stated reasons for denying parole were
pretextual and that it had no legitimate reason to deny him parole. The Court rejected
Burkett’s claim. First, the Parole Board was required by statute to consider
recommendations made by the sentencing court and district attorney. Further,
even if Burkett could demonstrate that the recommendations of
the sentencing judge and district attorney were based on
improper motives, the [Parole] Board’s denial of parole would
be proper based on the other reasons cited. “Mandamus cannot
be used to say that an agency considered improper factors, that
its findings were wrong, or that the reasons set forth in its
decision are a pretense.”
Id. at 650 (citing Weaver, 688 A.2d at 777). Here, as in Burkett, even if Holden
could prove the Department’s misconduct report was false or incorrect, the denial of
parole was based on other reasons cited by the Parole Board, which are not relevant
to the misconduct reports.
To the extent Holden’s petition can be construed as an attempt to state
a claim against the Secretary or any Department employees for retaliation under 42
U.S.C. §1983,5 it is irrelevant. Holden alleges that he is already pursuing claims
5
Section 1983 provides, in relevant part:
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 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[.]
42 U.S.C. §1983.
7
against the Secretary and various employees of the Department for retaliation.
Petition at 3, ¶7. Therefore, mandamus does not lie against the Secretary or any
Department employees for a retaliation claim.
Concluding that the petition for review does not state a clear right to
relief, we sustain Respondents’ preliminary objection in the nature of a demurrer and
dismiss Holden’s petition for review in the nature of a writ of mandamus with
prejudice.6
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
6
It is unnecessary to address Respondents’ preliminary objection to pleading defects. See
generally Green v. Pennsylvania State Board of Veterinary Medicine, 116 A.3d 1164, 1167 (Pa.
Cmwlth. 2015) (Court did not need to address preliminary objection under Pa.R.Civ.P. 1022
because it sustained the State Board’s demurrer and dismissed the petition).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shavez Holden, aka Shawvez Nelson, :
Petitioner :
:
v. : No. 634 M.D. 2020
:
The Pennsylvania Board of Probation :
and Parole; The Pennsylvania :
Department of Corrections; John E. :
Wetzel (Secretary of Corrections, PA. :
D.O.C.), :
Respondents :
ORDER
AND NOW, this 28th day of October, 2021, upon consideration of the
preliminary objections filed by the Pennsylvania Board of Probation and Parole, the
Pennsylvania Department of Corrections, and John E. Wetzel, to the petition for
review in the nature of a writ of mandamus filed by Shavez Holden, aka Shawvez
Nelson, it is hereby ORDERED that the preliminary objection in the nature of a
demurrer is SUSTAINED and the petition for review is dismissed with prejudice.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita