McBride v. Cahoone, Civil Action No. 10–cv–3228.

• Decision Date: 17 October 2011
• Docket Number: Civil Action No. 10–cv–3228.
• Citation: 820 F.Supp.2d 623
• Parties: Rond Roberts McBRIDE, Plaintiff, v. Don CAHOONE et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

820 F.Supp.2d 623

Rond Roberts McBRIDE, Plaintiff,

v.Don CAHOONE et al., Defendants.

Civil Action No. 10–cv–3228.

United States District Court, E.D. Pennsylvania.

Oct. 17, 2011.

Jeremy Andrew Menkowitz, Nathan J. Andrisani, Morgan Lewis & Bockius, Philadelphia, PA, for Plaintiff.

Michael P. Laffey, Holsten & Associates, Media, PA, for Defendants.

MEMORANDUM

LEGROME D. DAVIS, District Judge.I. Factual Background and Procedural History ¹

On January 11, 2010, Plaintiff Rond Roberts McBride (“Plaintiff” or “McBride”) pled guilty to identity theft under 18 Pa.C.S.A. § 4120(a) in the Delaware County Court of Common Pleas. (Doc. No. 23 ¶ 23). Judge James F. Nilon sentenced McBride to a “Min/Max” term of incarceration of three (3) to twenty-three (23) months, followed by two (2) years of probation. (Doc. No. 23 ¶ 24). Judge Nilon ordered that McBride receive seven (7) days credit for time served and serve the remaining eighty-three (83) days of his sentence on house arrest with electronic monitoring pursuant to Defendant Delaware County Office of Adult Probation and Parole Services' (“APPS”) Electronic Monitoring (“EM”) Program (Doc. No. 23 ¶ 25).

Before McBride decided to plead guilty, Judge Nilon repeatedly assured McBride and his attorney, Ms. Denise McCrae, that McBride would not go to jail or prison if he accepted the Government's plea offer:

THE COURT: The offer that they have extended to you is 3 to 23 months, with three months on electronic monitoring so you don't go to jail, you wear the bracelet, and after three months, they take the bracelet off ...

(Doc. No. 15, at 10:10–14).

THE COURT: You're looking at essentially no prison time under the offer to substantial prison time if you're convicted ...

(Doc. No. 15, at 15:3–7).

THE COURT: Three to 23 months is the period of incarceration. You're not going to have to go to jail because they're going to let you serve your minimum on electronic monitoring. Once they finish with the electronic monitoring, for the remainder of the 23 months, which would be 20 months, you are considered on parole ...

(Doc. No. 15, at 17:20–18:2).

MS. MCCRAE: For the record, Your Honor, but no jail time.

THE COURT: But no jail time.

(Doc. No. 15, at 18:12–15).

THE COURT: If there is a question in your mind as to whether or not you can win this case, then you have to give serious consideration to the offer because it doesn't carry any jail time with it.

(Doc. No. 15, at 20:2–7).

Additionally, McBride expressed concern about caring for his mother while serving his sentence. Judge Nilon told McBride that APPS should work with him to make the appropriate arrangements, but Judge Nilon would give McBride a hearing on the issue if McBride could not work it out with APPS.

MR. MCBRIDE: Yeah. Well, I got to leave the state at times.

THE COURT: Yeah. Well, you have to talk to your probation officer or parole officer about that. But I think arrangements could be made. They'll work with you.

MR. MCBRIDE: ... my mother ...

THE COURT: So you can visit your mother?

MR. MCBRIDE: I got to take her back—she got [inaudible] so I go back and forth.

THE COURT: I'm sure arrangements can be made.

MR. MCBRIDE: That's why I want to get this over with.

THE COURT: You can work with the person assigned to your case from Adult Probation and Parole. Okay?

MR. MCBRIDE: Okay.

THE COURT: And if—and if they refuse to allow that, then you could file a petition through the Office of the Public Defender and I would give you a hearing on it.

MR. MCBRIDE: Okay.

(Doc. No. 15, at 58:13–59:18).

McBride was scheduled to have the EM equipment hooked up (“hook up appointment”) on January 27, 2010, but he called Defendant Don Cahoone, his probation officer, to reschedule because he was in the hospital due to medical problems. (Doc. No. 23 ¶¶ 28–29). On February 3, 2010, McBride informed Cahoone that he was out of the hospital, and Cahoone scheduled a new hook up appointment for February 20, 2010. (Doc. No. 23 ¶¶ 30–31). On February 19, the day before the new hook up date, McBride told Cahoone that he had to undergo several medical tests, including an MRI, on February 20, and Cahoone informed McBride that he should not get hooked-up because the EM anklet cannot be worn during an MRI procedure. (Doc. No. 23 ¶ 32). Cahoone again rescheduled McBride's hook up appointment, this time for March 4, 2010. (Doc. No. 23 ¶ 33). Despite McBride's apparent health-related issues, Cahoone told McBride that this was “the last time” Cahoone would reschedule the appointment. (Doc. No. 10 Ex. D).

McBride spoke with Cahoone on March 4, 2010, at which time McBride told Cahoone that he could not attend the scheduled hook up appointment because he was in the hospital with his mother, who was having surgery. (Doc. No. 23 ¶ 34). Cahoone then requested that a bench warrant be issued for McBride's arrest as provided in the EM Violation Policy (Doc. No. 23 ¶ 35; Doc. No. 10 Ex. G, Chapter 7.18). Judge Chad F. Kenney of the Delaware County Court of Common Pleas issued the bench warrant on March 16, 2010. (Doc. No. 33).

McBride subsequently contacted Cahoone to schedule a new hook up appointment, but Cahoone informed McBride about the bench warrant and told McBride to turn himself in because “he would have to do the time (83 days) he was supposed to do on EMP in DCI.” (Doc. No. 23 ¶ 37; Doc. No. 10 Ex. D). McBride voluntarily surrendered on May 2, 2010 and, pursuant to the EM Violation Policy, was immediately taken into custody and transferred to Delaware County Prison to serve the remainder of his sentence. (Doc. No. 23 ¶¶ 38–39).

On May 13, 2010, McBride told Cahoone that he believed his rights were being violated because he was entitled to a hearing before Judge Nilon, and McBride specifically requested that Cahoone schedule the hearing. (Doc. No. 23 ¶ 42). Cahoone refused to schedule a hearing, telling McBride that “he has to do his min. sent. of 83 days regardless of his medical problems” and “if he needs to be out so bad have a lawyer file a habeas.” (Doc. No. 23 ¶¶ 42–44; Doc. No. 10 Ex. D). McBride was not released from prison until he had served the remaining minimum term of his sentence. (Doc. No. 23 ¶ 44). From the time McBride surrendered, McBride never received a hearing of any kind regarding the EM violation that sent him to prison. (Doc. No. 23 ¶¶ 38–45).

Chapter 7.18 of the Delaware County Adult Probation and Parole Policy and Procedure Manual (the “Manual” or “Policy and Procedure Manual”) describes the Electronic Home Monitoring Program (“EMP” or “EM Program”) procedures pursuant to which McBride was sent to prison without a hearing. (Doc. No. 10 Ex. G). The “authority” for Chapter 7.18 resides in the Director of APPS, a position currently held by Defendant Michael Raith. (Doc. No. 10 Ex. G). According to Chapter 7.18 of the Manual, violations of the EM Program include, but are not limited to, (1) not being home for a scheduled hook up, (2) not responding to a probation/parole officer's attempts to schedule a hook up, and (3) missing an office appointment without a legitimate explanation. (Doc. No. 10 Ex. G). When a violation occurs:

[The probation/parole] Officer will: Consult with supervisor concerning the violation. At that time it may be determined that the violation can be handled with a warning slip. If it is determined that the violation is severe, then a bench warrant is requested from the sentencing judge ... If the client was serving EMP as part of a ‘Min/Max’ sentence, he/she will serve the remainder of time left on the minimum in prison ... If the client was serving EMP as part of an Intermediate Punishment sentence or if it was ordered at a Gagnon hearing, the appropriate violation hearing will be requested by the probation officer.

(Doc. No. 10 Ex. G) (emphasis added).

In other words, the official EMP violation policy affords a hearing to those individuals serving EMP in some circumstances, i.e., if the individual is serving EMP as part of an intermediate punishment sentence or if EMP was ordered at a Gagnon hearing, but not others, i.e., when the individual is serving EMP as part of a “Min/Max” sentence. McBride falls within the latter category and, pursuant to the policy, was not given a hearing.

On July 9, 2010, McBride brought this civil action under 42 U.S.C. § 1983 against Defendants Don Cahoone, his probation officer; Michael Raith, Director of APPS; and APPS, claiming that Cahoone's actions and Raith's/APPS' policy deprived McBride of his Fourteenth Amendment Due Process rights by denying him a hearing before sending him to prison for allegedly violating the EMP policy. Defendants filed a motion to dismiss on August 15, 2011, Plaintiff responded on September 8, 2011, and the Court heard oral arguments on the motion on October 11, 2011. Defendants' motion is now ripe for disposition, and for the reasons detailed below, we grant Defendants' motion in part and deny it in part.

II. Legal Analysis

When considering a motion to dismiss under Rule 12(b)(6), we utilize the “plausibility” standard recently articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss under this standard, the Plaintiff must plead factual allegations sufficient “to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955. The “mere possibility” of misconduct is not enough; the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’ ” i.e., sufficient facts to permit “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949–50 (emphasis added) (citation omitted). In our...