A. Robinson v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Robinson, :
Petitioner :
:
v. : No. 253 M.D. 2022
: Submitted: March 17, 2023
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION
BY JUDGE DUMAS FILED: November 30, 2023
Before this Court, in our original jurisdiction, are the preliminary
objections in the nature of a demurrer filed by the Pennsylvania Parole Board
(Board). The Board challenges the Petition for Writ of Mandamus (Petition) filed
pro se by Anthony Robinson (Petitioner). Petitioner has requested that this Court
compel the Board to grant his automatic reparole. For the following reasons, we
sustain the Board’s demurrer and dismiss the Petition with prejudice.
I. BACKGROUND1
On January 10, 2020, Petitioner was discharged from the Harrisburg
Community Corrections Center (CCC) and returned to State Correctional Institution
(SCI)-Laurel Highlands.2 On March 30, 2020, the Board recommitted Petitioner as
1
A complete record from the Board is not before the Court. We derive the following facts,
which we accept as true for purposes of this disposition, from the Petition and its attached exhibits.
See Pet., 4/22/22. See Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019)
(observing that courts reviewing preliminary objections may not only consider the facts pleaded
in the petition for review, but also any documents or exhibits attached to it).
2
The reasons for his unsuccessful discharge from the Harrisburg CCC are unclear. See
Pet., Ex. B, Notice of Bd. Dec., 3/30/20, at 1 (generally citing evidence of violations).
Nevertheless, we note that the Board may place a technical parole violator (TPV) in an SCI if that
TPV is accused of violating the CCC’s rules of conduct. 61 Pa.C.S. § 6138(c)(1.4).
a technical parole violator (TPV) to a CCC with automatic reparole no later than
July 10, 2020, provided Petitioner remained in good standing with the Board and
successfully completed all recommended programs. However, Petitioner twice
refused placement at a CCC.3 On July 9, 2020, the Board issued a warrant to commit
and detain Petitioner for parole rescission. See Pet., Ex. D, Bd.’s Warrant, 7/9/20.
Citing in relevant part Petitioner’s placement refusals, the Board
scheduled a parole rescission hearing for July 23, 2020. At the hearing, Petitioner
explained that his refusals were due to health concerns amid the COVID-19
pandemic.4 Petitioner is on dialysis and wished to avoid the crowded environment
at a CCC.
On August 4, 2020, the Board rescinded Petitioner’s automatic reparole
and agreed to consider an approved home plan on or after January 2021.5 Petitioner
filed an administrative appeal asserting a violation of his Eighth Amendment right
of protection against cruel and unusual punishment. See U.S. Const. amend. VIII.
The Board denied administrative relief and affirmed its prior decision. See Pet., Ex.
H, Bd.’s Resp., 11/2/21. The Board explained that it rescinded Petitioner’s
automatic reparole because Petitioner twice refused placement into a CCC. See id.
On April 21, 2022, Petitioner commenced this action in mandamus,
requesting that this Court direct the Board to “comply with the Eighth Amendment,”
3
Petitioner avers that his parole agent, Ms. Laura Weimer, alleged three refusals. Pet., ¶13
(citing Ex. E, Notice of Rescission Hr’g, 7/9/20). However, the notice indicates only two
placement refusals. Notice of Rescission Hr’g.
4
Petitioner was counseled at the hearing. See Pet., Ex. F, Letter from Pub. Defender,
8/3/20.
5
Petitioner avers that the Board approved his home plan. Pet., ¶17. That is unclear from
the documents attached. See Pet., Ex. A, Notice of Bd. Dec., 8/4/20 (“approved home plan to be
available at next review”), Ex. G, Admin. Remedies Form, 9/3/20, p.2 (suggesting that the Board
“approved [P]etitioner’s request to submit a home plan”).
2
“rescind its decision,” and “re-establish [] Petitioner’s parole.” Pet., ad damnum cl.
The Board timely filed preliminary objections in the nature of a demurrer, asserting
that (1) Petitioner lacks a clear right to the relief requested and (2) the Board lacks a
corresponding duty to grant the requested relief.6 Prelim. Objs., 5/17/22, at 6.
II. DISCUSSION7
Petitioner seeks mandamus relief. Mandamus is an extraordinary
remedy “designed to compel performance of a ministerial act or mandatory duty
where there exists a clear legal right in the petitioner, a corresponding duty in the
6
The Board also asserted that Petitioner’s mandamus action was unsuitable for an Eighth
Amendment claim and that he has an adequate and appropriate remedy available pursuant to 42
U.S.C. § 1983. See Prelim. Objs. at 5-6. This Court has previously addressed an Eighth
Amendment claim in the context of a mandamus action. Tindell v. Dep’t of Corr., 87 A.3d 1029,
1038-43 (Pa. Cmwlth. 2014). While petitioners in that case were unsuccessful in articulating a
clear right to relief based on the asserted denial of medical care, the Tindell Court did not “foreclose
the possibility” that a valid claim could sound in mandamus. Id. at 1041. Here, however, we need
not examine whether housing Petitioner at a CCC during the COVID-19 pandemic would have
exposed Petitioner to a substantial risk of serious harm or whether Petitioner has sufficiently
pleaded that the Board’s conduct evinced a deliberate indifference to his medical needs. See id. at
1039. In response to the Board’s preliminary objections, Petitioner repeatedly rejected the
relevance of Tindell, Answer, 6/13/22, ¶¶ 19-21, 30, and clarified that he seeks mandamus relief
related only to the Board’s rescission of his reparole. Id., ¶ 30. Moreover, Petitioner pleaded
explicitly that “this case is not an [Eighth] Amendment prison conditions case (or an [Eighth]
Amendment community corrections conditions case).” Id., ¶ 25 (emphasis removed). Thus,
according to Petitioner, Section 1983 “is an unsuitable legal instrument to resolve this issue.” Id.,
¶¶ 30-31.
7
In ruling on preliminary objections, we must “accept as true all well-pleaded material
allegations in the petition for review,” as well as inferences reasonably deduced therefrom.
Garrison v. Dep’t of Corr., 16 A.3d 560, 563 n.5 (Pa. Cmwlth. 2011). The Court need not accept
as true conclusions of law, “unwarranted inferences from facts, argumentative allegations, or
expressions of opinion.” Id. To sustain preliminary objections, “it must appear with certainty that
the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.”
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).
A preliminary objection in the nature of a demurrer admits well-pleaded facts and
inferences reasonably deduced therefrom in order to test the legal sufficiency of a petition for
review. Id. A demurrer can “be sustained only in cases where the pleader has clearly failed to
state a claim for which relief can be granted.” Id.3
respondent, and want of any other adequate and appropriate remedy.” Toland v. Pa.
Bd. of Prob. & Parole, 263 A.3d 1220, 1232 (Pa. Cmwlth. 2021) (cleaned up). A
petitioner may not use mandamus “to compel a purely discretionary act.” Coady v.
Vaughn, 770 A.2d 287, 290 (Pa. 2001). “[T]he purpose of mandamus is not to
establish legal rights, but to enforce rights [that] are already established.” Clark v.
Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007).
It is well settled that the Board has been granted broad discretion in
parole matters by the legislature. Coady, 770 A.2d at 289; Rogers v. Pa. Bd. of Prob.
& Parole, 724 A.2d 319, 322 (Pa. 1999); Commonwealth v. Vladyka, 229 A.2d 920,
922 (Pa. 1967); see also Sections 6131-32 of the Prisons and Parole Code (Code),
61 Pa.C.S. §§ 6131-32. The scope of this discretion extends to the recission and
denial of parole. Johnson v. Pa. Bd. of Prob. & Parole, 532 A.2d 50, 53 (Pa.
Cmwlth. 1987). Further, “mandamus will not lie where the substance of the
[B]oard’s discretionary action is the subject of the challenge.” Coady, 770 A.2d at
290; Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 777 (Pa. Cmwlth. 1997)
(recognizing that mandamus is inappropriate to compel the exercise of “discretion
in a certain manner or to arrive at a particular result”); see also Homa v. Pa. Bd. of
Prob. & Parole, 192 A.3d 329, 334 (Pa. Cmwlth. 2018) (limiting mandamus relief
to where the Board has “failed to follow its statutory duties”).
A. The Parties’ Arguments
In its preliminary objections, the Board asserts that Petitioner cannot
establish a clear right to relief or that the Board had a duty to grant the relief
requested. See Bd.’s Br. at 6-9. According to the Board, its decision to rescind
Petitioner’s automatic reparole was discretionary, and, thus, Petitioner’s mandamus
claim fails. See id. In support, the Board relies on Henderson v. Pennsylvania
4
Parole Board, 277 A.3d 633 (Pa. Cmwlth. 2022), and focuses on Petitioner’s status
while serving his recommitment and awaiting reparole. According to the Board,
Petitioner never achieved parolee status and, therefore, lacked any vested liberty
interest to challenge the Board’s discretionary act. See generally Bd.’s Br.
Although his brief is difficult to parse, Petitioner appears to challenge
the Board’s assertion that he was never a parolee. See Pet’r’s Br. at 8 (suggesting
the Board’s assertion “is a misconception”). According to Petitioner, despite his
ongoing confinement at SCI-Laurel Highlands, the Board’s administrative actions
document his status. See Pet’r’s Br. at 8-9. Essentially, Petitioner argues that he
was paroled as of July 10, 2020, regardless of where he was housed at the time.
Petitioner also rejects the Board’s reliance on Henderson. According to Petitioner,
Henderson merely precludes automatic reparole for those TPVs that commit
assaultive misconducts. Because Petitioner never received a misconduct for
assaultive behavior, Petitioner contends that Henderson is inapposite. See id. at 9-
11. Petitioner also suggests that the Board’s efforts to deny his parolee status reveal
an underlying strategy to deprive him of due process rights, ignore the public health
concerns prevalent at the time, and punish him for seeking more favorable housing.
See id. at 12-19.
B. The Board’s Reliance on Henderson is Persuasive
While not directly on point, the Board’s reliance on Henderson is
persuasive. In that case, the Board recommitted Henderson as a TPV to serve six
months’ backtime with automatic reparole. 277 A.3d at 634. Following his
recommitment, Henderson received a disciplinary misconduct for assaultive
behavior.8 Id. Accordingly, the Board rescinded his automatic reparole without a
8
Henderson denied the assaultive behavior but was found guilty and sentenced to 45 days
in disciplinary custody. Henderson, 277 A.3d at 634-35.
5
hearing. Id. at 635. Henderson sought administrative relief, which the Board denied,
citing in support Section 6138(d)(5) of the Code.9 Id.
Henderson then petitioned this Court for appellate review, asserting a
violation of his due process rights because the Board had rescinded his reparole
without a hearing, but this Court denied relief. See id. at 636-38. Relying upon the
plain language of Section 6138, the Court concluded that the recommitment period
9
At the time Henderson was decided, as well as at the relevant times herein, this section
provided:
(d) Recommitment to correctional facility.--A technical violator recommitted
to a State correctional institution or a contracted county jail under subsection (c) shall
be recommitted as follows:
(1) If paroled from a county prison, to the same institution or to any other institution
to which the violator may be legally transferred.
(2) If paroled from a State correctional institution, to any State correctional
institution or contracted county jail designated by the [Department of Corrections
(department)].
(3) Except as set forth in paragraph (4) or (5), the parolee shall be recommitted for
one of the following periods, at which time the parolee shall automatically be
reparoled without further action by the [B]oard:
(i) For the first recommitment under this subsection, a maximum period of six
months.
(ii) For the second recommitment under this subsection for the same sentence,
a maximum of nine months.
(iii) For the third or subsequent recommitment under this subsection for the
same sentence, a maximum of one year.
(4) The parolee may be reparoled by the board prior to expiration of the time period
under paragraph (3) if the [B]oard determines that it is in the best interest of the
Commonwealth and the parolee.
(5) The time limit under paragraph (3) shall not be applicable to a parolee who:
(i) Committed a disciplinary infraction involving assaultive behavior, sexual
assault, a weapon or controlled substances;
(ii) Spent more than 90 days in segregated housing due to one or more
disciplinary infractions; or
(iii) Refused programming or a work assignment.
61 Pa.C.S. § 6138(d) (effective Apr. 16, 2020, to June 29, 2021). Minor and inconsequential
amendments have been made to this section. See 61 Pa.C.S. § 6138(d) (effective June 30, 2021)
(replacing, e.g., “parolee” with “offender”).
6
and automatic reparole provisions “shall not be applicable” to a TPV who has
committed assaultive behavior. Id. at 636 (quoting 61 Pa.C.S. § 6138(d)(5)(i))
(emphasis in quotation removed). Further, as the Board’s authority was limited to
“those powers conferred upon it by the General Assembly in clear and unmistakable
language,” the Court opined that the Board was prohibited from granting the parolee
relief. Id. at 636 (quoting Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 416
(Pa. Cmwlth. 2019)).
In addressing the Board’s rescission without a hearing, the Court also
clarified a TPV’s status during his recommitment. Id. at 637-38. According to the
Court, “a grant of parole by itself does not vest a prisoner with any protected liberty
interest in that parole.” Id. at 637. The grant of parole is executed when “the prisoner
signs the acknowledgement of parole conditions . . . and the Board issues its parole
release order . . . .” Id. (citing several cases).10 Because those steps had not occurred,
Henderson had not attained the status of a parolee. See id. at 638.
Thus, Henderson is instructive for two reasons. First, “a prisoner does
not attain the status of a ‘parolee’ until the grant of parole is actually executed.” Id.
at 637. Second, a TPV’s conduct following recommitment may endanger or even
void an automatic reparole. Id. at 636 (citing Section 6138 of the Code).
C. Petitioner Lacks a Vested Liberty Interest in his Reparole
Petitioner’s status is relevant to whether he has a clear right to relief.
See Toland, 263 A.3d at 1232; Clark, 918 A.2d at 159. It is evident that Petitioner
never attained parolee status following his recommitment in January 2020.
10
In denying relief, the Court observed that the parolee had availed himself of the prison
appeal process in disputing his disciplinary infraction, that the Board’s recission decision was
mandated by the Code, and that no further process was required. See Henderson, 277 A.3d at 637-
38.
7
Whatever the precise circumstances surrounding his unsuccessful discharge from
the Harrisburg CCC, upon his recommitment to SCI-Laurel Highlands, Petitioner
was confined as a prisoner housed at that institution. As memorialized by the
Board’s written decision, “[w]hile confined [Petitioner] must abide by the rules and
regulations of the institution and comply with the institution’s prescriptive program
requirements[.]” Pet., Ex. B, Notice of Bd. Dec., 3/30/20, at 1 (unnecessary
capitalization removed). Further, the Board informed Petitioner that he was eligible
for automatic reparole but clarified that “this Board action will not take effect until
you have signed the conditions . . .[,] and the release orders . . . have been issued.”
Id. at 3 (unnecessary capitalization removed; emphasis added).
Petitioner has not pleaded, nor is it a reasonable inference from his
exhibits, that he signed a form documenting the conditions of his release on parole
or that the Board issued orders executing his release. Therefore, on this record and
in accordance with this Court’s precedent, Petitioner’s assertion that he attained
parolee status is incorrect.
In Henderson, the petitioner’s status as a prisoner, rather than a parolee,
was significant because it relieved the Board of an obligation to provide him with
advance notice and a hearing before rescinding his automatic reparole. In this case,
the Board afforded Petitioner a hearing before rescinding his automatic reparole.
Nevertheless, Petitioner’s status is no less significant here in this mandamus action
because it demonstrates that he lacks a vested liberty interest in his reparole. See
Henderson, 277 A.3d at 637. Because he lacks a vested liberty interest in his
reparole, he has no clear legal right to the relief requested, and his mandamus action
fails. See Toland, 263 A.3d at 1232; Clark, 918 A.2d at 159.
D. The Board has No Duty to Grant Petitioner Reparole
8
This is not a case in which the Board has failed or refused to abide by
its statutory duties. The Board’s decision to rescind Petitioner’s reparole based on
his conduct following recommitment was an appropriate exercise of its discretion.
See Coady, 770 A.2d at 290; Johnson, 532 A.2d at 53. The Board’s broad discretion
in parole matters is tempered by a statutory duty to provide a brief statement of the
reasons for its decision. Homa, 192 A.3d at 334 (citing 42 Pa.C.S. § 6139(a)(5)).11
In Homa, for example, the Board issued letters explaining that it had denied the
prisoner automatic parole upon reaching his minimum sentence date because, inter
alia, he had an unsatisfactory supervision history. Homa, 192 A.3d at 331.
Here, in its response to Petitioner’s administrative appeal, the Board
explained that it had rescinded Petitioner’s reparole because he “failed to cooperate
with the release process during which [he] refused placement in two separate
programs in the community” and refused “placement in a treatment program[.]”
Pet., Ex. H, Bd.’s Resp., 11/2/21, at 1. The Board’s response articulated the basis
for its decision. It therefore complied with its statutory duty. See Homa, 192 A.3d
at 334; 61 Pa.C.S. § 6139(a)(5).
Accordingly, Petitioner cannot establish the Board has a duty to grant
the relief requested, and his mandamus action fails on this ground as well. See
Coady, 770 A.2d at 290; Weaver, 688 A.2d at 777; Toland, 263 A.3d at 1232; Homa,
192 A.3d at 334.
Indeed, Petitioner’s conduct deprived the Board of authority to grant
reparole. Section 6138(d)(5)(iii) of the Code provides that the time limits placed on
a TPV recommitted to a SCI “shall not be applicable” to a prisoner that has “refused
programming.” 61 Pa.C.S. § 6138(d)(5)(iii). Thus, as this Court recognized in
11
“[W]henever parole is refused by the [B]oard, a brief statement of the reasons for the
[B]oard’s action shall be file of record . . . .” 61 Pa.C.S. § 6139(a)(5).
9
Henderson, the Board lacked authority to grant Petitioner the relief requested
“because it was affirmatively prohibited from doing so . . . .” Henderson, 277 A.3d
at 636-37. For this reason, too, the Board had no duty to grant Petitioner the relief
he requested.
III. CONCLUSION
Petitioner has not established a clear right to relief. Further, the Board
has no corresponding duty to grant the relief requested. For these reasons,
Petitioner’s mandamus claim fails. Accordingly, this Court sustains the Board’s
preliminary objections and dismisses Petitioner’s Petition for Review with
prejudice.12
LORI A. DUMAS, Judge
12
In August 2022, Petitioner filed an application to compel the production of a copy of the
rescission hearing held on July 23, 2020. See Appl. to Compel, 8/17/22. In light of our disposition,
we dismiss the application as moot.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Robinson, :
Petitioner :
:
v. : No. 253 M.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 30th day of November, 2023, the preliminary
objections to Anthony Robinson’s Petition for Mandamus, filed by the Pennsylvania
Parole Board on May 17, 2022, are SUSTAINED, and the Petition is DISMISSED
WITH PREJUDICE. Robinson’s Application to Compel, filed August 17, 2022, is
DISMISSED AS MOOT.
LORI A. DUMAS, Judge