Noel v. Wolf

HAROLD W. NOEL, JR., Plaintiff v. TOM WOLF, et al., Defendants

CIVIL ACTION NO. 4:20-CV-430

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

September 4, 2020

(BRANN, D.J.)

(ARBUCKLE, M.J.)

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff Harold W. Noel, Jr. ("Plaintiff"), a state prisoner, initiated this pro se civil suit by filing a Complaint¹ (Doc. 1) on March 12, 2020, against the following defendants: Tom Wolf (Governor of Pennsylvania), Josh Shapiro (Pennsylvania Attorney General), and Robert Marsh (Superintendent of SCI Benner Township). Plaintiff alleges that he was convicted in state court and received an illegal sentence. Plaintiff states that he seeks a declaration regarding the legality of the statute under which he received a sentencing enhancement. However, in his Complaint, Plaintiff fails to state a claim upon which relief can be granted. For the reasons below, I recommend that the Complaint be dismissed.

II. AUTHORITY TO SCREEN COMPLAINT

Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 10). On August 14, 2020, Plaintiff filed the civil filing fee of $350 - the amount owed once a plaintiff is granted leave to proceed in forma pauperis. Typically, when prisoner plaintiffs are granted leave to proceed in forma pauperis, the amount of the civil filing fee is paid over time through withdrawals from the plaintiff's prisoner trust fund account. Plaintiffs granted leave to proceed in forma pauperis do not have to pay the $50 administrative fee for civil actions. Here, Plaintiff paid his civil filing fee of $350 in one lump sum payment and is not required to pay the $50 administrative fee. Thus, Plaintiff is still proceeding in forma pauperis and is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 F. App'x 753, 755 (3d Cir. 2007) ("[T]he screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike."). Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) ("[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.").

III. FACTUAL BACKGROUND & PROCEDURAL HISTORY

According to the Complaint, Plaintiff's criminal jury trial took place in February 2010.² (Doc. 1, p. 7). The jury found Plaintiff guilty of robbery and conspiracy to commit robbery. Id. Plaintiff received an enhanced sentence under 42 Pa.C.S.A. § 9714, resulting in an aggregate sentence of 29 to 58 years imprisonment. Id.

Plaintiff filed two appeals regarding his conviction to the Superior Court of Pennsylvania. Plaintiff filed his first notice of appeal on May 13, 2010.³ ("2010 Appeal"). Plaintiff challenged the government's discussion of defense counsel's cross-examination of a witness as prejudicial and the procedure used for jury selection as improper. Plaintiff argued that he was entitled to a new trial. On March 13, 2012, the Superior Court held oral argument regarding Plaintiff's appeal. On September 11, 2012, the Superior Court issued an opinion, affirming the decision of the Court of Common Pleas. See Commonwealth v. Noel, 53 A.3d 848 (Pa. Super. Ct. 2012) aff'd by 104 A.3d 1156 (Pa. 2014). Plaintiff appealed the Superior Court's decision regarding the jury selection procedure to the Supreme Court ofPennsylvania. On November 21, 2014, the Supreme Court of Pennsylvania affirmed the Superior Court's decision. Commonwealth v. Noel, 104 A.3d 1156 (Pa. 2014).

Plaintiff filed another notice of appeal on May 15, 2018.⁴ ("2018 Appeal"). Plaintiff proceed pro se. On August 3, 2018, his appeal was dismissed for failure to comply with the Pennsylvania Rules of Appellate Procedure.

Plaintiff filed this Declaratory Judgment Complaint on March 12, 2020. (Doc. 1). On May 4, 2020, I issued an Order directing Plaintiff to provide written notice to the Court on whether he intended to pursue his claim as a civil suit or a petition for writ of habeas corpus. (Doc. 7). On June 1, 2020, Plaintiff indicated that he seeks a declaratory judgment. (Doc. 8). Thus, I construe Plaintiff's original filing to be a civil complaint.

In his Complaint, Plaintiff argues that the "ambiguous wording of Section 9714 was misinterpreted - specifically the use of the word "or" as to his convictions of robbery and criminal conspiracy. (Doc. 1, pp. 7, 11). As relief, Plaintiff requests that this Court vacate his sentence and remand the matter to the state court for resentencing. Id. at p. 11.

On July 13, 2020, I issued a Screening Order (Doc. 11) concluding that Plaintiff failed to state a claim upon which relief may be granted. In that Order, Igranted Plaintiff leave to file an amended complaint. At this time, Plaintiff has not filed an amended complaint. On August 13, 2020, Plaintiff filed a "Motion to Proceed on the Original Record" (Doc. 14). Plaintiff reiterates that he "merely seeks a Federal Declaration under Federal Law whether the word 'OR' contained in statute 42 Pa.C.S. § 9714(g) is exclusive and must be read in the disjunctive as this ruling has the potential to render Plaintiff Noel's sentence highly illegal and unconstitutional." (Doc. 14, p. 1). I construe this Motion to be Plaintiff's indication that he wishes the Court to move forward with his original Complaint and that no amended complaint will be filed. If Plaintiff disagrees with this interpretation of his Motion, he should object to my report and recommendation.

IV. LEGAL STANDRD FOR REVIEWING COMPLAINTS FILED BY PRO SE PLAINTIFF PROCEEDING IN FORMA PAUPERIS

This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -

(A) the allegation of poverty is untrue; or

(B) the action or appeal--

(i) is frivolous or malicious;(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id. at 211. It also "has to 'show' such an entitlement with its facts." Id.

To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).

A complaint filed by a pro se litigant is to be liberally construed and '"however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are sufficient to raise the Plaintiff's claimed right to relief beyond the level of mere speculation. The complaint must set forth in a "short and plain" statement a cause of action. With that explanation of the legal standards to be applied to cases of this type I now turn to an analysis of the claims.

V. ANALYSIS

A. SUBJECT MATTER JURISDICTION

Plaintiff cites to both the Pennsylvania Declaratory Judgment Act (42 Pa.C.S. § 7540(a)) and the Federal Declaratory Judgment Act (28 U.S.C. § 2201) in his Complaint. In doing so, Plaintiff correctly notes that Heck v. Humphrey, 512 U.S. 477 (1994) bars recovery unless he has received a favorable decision regarding his conviction or sentence.

I first address whether this Court has jurisdiction over Plaintiff's claim. Plaintiff does not explain how this Court has jurisdiction over a claim under the Pennsylvania Declaratory Judgment Act.

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co of Am., 511 U.S. 375, 377 (1994). "[T]hey have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Federal district courts have subject matter...