Brown v. Wilson, Civ. A. No. 72-755.

• Decision Date: 26 March 1974
• Docket Number: Civ. A. No. 72-755.
• Citation: 373 F. Supp. 1045
• Parties: Joseph Carl BROWN, Jr. v. Ira WILSON.
• Court: U.S. District Court — Eastern District of Pennsylvania

373 F. Supp. 1045

Joseph Carl BROWN, Jr. v. Ira WILSON.

Civ. A. No. 72-755.

United States District Court, W. D. Pennsylvania.

March 26, 1974.

No appearance for plaintiff.

Stephen M. Sokol, Pittsburgh, Pa., for defendant.

MEMORANDUM AND ORDER

SNYDER, District Judge.

The Plaintiff, Joseph Carl Brown, Jr., brought this action against Ira Wilson for his alleged failure to present a letter written on his behalf before the Board of Pardons. Plaintiff claims his action arises under 42 U.S.C. § 1983 (the Civil Rights Act) and bases jurisdiction on 28 U.S.C. § 1343. The Defendant Wilson is a Counselor at the State Correctional Institution at Pittsburgh. The purpose of the Counselors at the State Correctional Institution at Pittsburgh is to (1) aid the prisoners to adjust to living in the prison population, (2) find what the particular aptitudes and abilities are of specific prisoners, and (3) to use their findings to help the prisoners to eventual rehabilitation through release by either pardon, parole or any other available program. The Plaintiff had applied for a commutation of his sentence; the Pennsylvania Board of Pardons was to meet on July 29, 1972 for the purpose of reviewing such applications. Since Plaintiff Brown did not have sufficient funds to obtain an attorney to represent him, Mr. Wilson would present his (Brown's) case for commutation before the Board of Pardons.

Sometime in June of 1972, the Plaintiff and the Defendant met and discussed Brown's application for commutation. In the best interest of the prisoner, he was advised he should procure as many letters of recommendation as possible to present before the Board. Plaintiff here was able to procure only one letter (other than letters from his immediate family) and that letter was from a former school teacher, Mrs. Bette Cavanah. The letter of Mrs. Cavanah was received at least a few days prior to the meeting of the Board of Pardons on June 29, 1972. In his Affidavit supporting the initial Motion for Summary Judgment, the Defendant stated:

"2. I have been employed at the State Correctional Institution at Pittsburgh as a Counselor since 1965. In January of 1972, I was appointed Representative for the Western District to the Board of Pardons. I have recently been named Resident Placement Co-Ordinator at the Institution.

3. On June 29, 1972, as Representative for the Western District to the Board of Pardons, I presented to the Board of Pardons, at their meeting, letters of recommendation on behalf of many prisoners incarcerated at the State Correctional at Pittsburgh. One of these prisoners was Joseph Carl Brown, Jr. Shortly before the meeting of the Board occurred, I received a letter from Mrs. Bette Cavanah on behalf of Joseph Carl Brown, Jr. However, I was unable to present this letter to the Board because there was insufficient time to incorporate this letter into Joseph Carl Brown's file because there were a great many files to prepare for presentation to the Board."

In an "Opposing Memorandum of Fact and Law" filed December 14, 1972, the Plaintiff pro se alleged:

"The term `SHORTLY BEFORE' is grossly misleading. It appears that the defendant would have the Court believe that the letter was received as he was going out of the prison front gate en route to the City County Building on the Morning Sic of June 29, 1972, where the hearing was conducted. However, it just so happens that the letter of Mrs. Bette Cavanah was postmarked June (20) (twentieth), 1972; and therefore most certainly arrived at the institution within a maximum of three (3) days."

A Preliminary Hearing scheduled for August 7, 1973, was postponed by the request of Plaintiff and held on August 16, 1973. At that time the Plaintiff brought a Motion to Disqualify the Trial Judge. This Motion was subsequently denied and another hearing was scheduled on December 20, 1973.

In the interim, the Defendant filed an Affidavit of William B. Robinson, which stated the following:

"I, William B. Robinson, Senior Member of the Pennsylvania Board of Pardons, do swear that the following facts are true and correct to the best of my knowledge, information and belief.

On June 29, 1972, the case of Joseph Carl Brown, Jr., applicant for commutation of minimum sentence, was heard in the Supreme Court Room, in the City-County Building, County of Allegheny, Pittsburgh, Pennsylvania.

The case was presented by Ira Wilson, Jr. Mr. Wilson's plead for the above named applicant was very thorough and complete. At the conclusion of his oral presentation, Mr. Wilson submitted to the Board a letter dated June 20, 1972, from one Mrs. W. D. Cabanah. This letter was incorporated in the file of Joseph Carl Brown, Jr.

At the conclusion of the day's hearings the Board met in an executive session on July 21, 1972, in the Office of the Attorney General, in the State of Pennsylvania. At that time, the case of Joseph Carl Brown, Jr., was reviewed (note: The letter of Mrs. Cabanah was incorporated in the file and was considered to be part of the final disposition of the Board). It was the decision of the Board at this time to refuse commutation of minimum sentence based on numerous other factors."

At the Hearing on Defendant's Motion for Summary Judgment held on December 20, 1973, the Court pointed out a conflict between the two affidavits as presented. The Affidavit of Mr. Wilson stated that he did not have time to incorporate the letter prior to the hearing of the Board of Pardons on June 29, 1972, while the Affidavit of Mr. Robinson stated that at the conclusion of his oral presentation of June 29, 1972, on behalf of Mr. Brown, Mr. Wilson incorporated into the file the letter of Mrs. Cavanah. The Court, at the request of Brown, granted both parties forty (40) days to file briefs dealing with constitutional questions concerning inmates' rights before the Board of Pardons.

The Defendant's argument in support of the Motion for Summary Judgment is that the actions of the Defendant Wilson as alleged in the Complaint did not involve the deprivation of any right or privilege secured by the Federal Constitution or Laws. This reasoning starts with the premise that since there is no federal right to pardon, Plaintiff could not be heard to complain in a civil rights action that his letter was not presented to the Board. The Defendant then notes that actions arising under 42 U.S.C. § 1983 must be based on the deprivation of a right or privilege secured by the Constitution and/or Laws of the United States. From this, the Defendant concludes that pardon has never been held to constitute a right or privilege of the citizenship of a criminal, but rather has been recognized as purely an element of legislative and judicial grace, relying on Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) and Murray v. State of Louisiana, 347 F.2d 825 (5th Cir. 1965) (See also: United States ex rel. Forino v. Garfinkel, 166 F.2d 887 (3rd Cir. 1948); Singleton v. Shafer, 313 F.Supp. 1094 (E. D.Pa.1970); and In re Raymond, 110 F. 155 (E.D.Pa.1901)), therefore, no federal right was violated.

The Defendant analogizes the situation presently before us to that in Lambur v. Chew, 356 F.Supp. 751 (E.D.Va. 1973). In Lambur the Plaintiff had been picked up as a parole violator on September 9, 1972. No hearing was held at the time of apprehension as required by Virginia law to determine whether or not he had violated his parole. On January 9, 1973, a probable cause interview was held and it was then determined that Lambur had indeed violated the terms of his parole. Lambur argued that the failure to give him the required hearing in September resulted in a violation of his rights from September until January. The Court held that since a hearing at the time of his apprehension would have shown that he was a parole violator, therefore, he should have been bound over. The Court then stated:

"The Commonwealth of Virginia, if it so desires, may choose to use the preliminary interview procedure for the further purpose of making an initial determination as to whether the violations found justify revocation. This seems to have been done in the hearing given Lambur on January 9, 1973, by Campbell's recommendations. But if Virginia does choose to use the procedure in this way and then fails to accord it to a particular parolee, whatever misfortune that may result to that parolee does not result from the violation of a federal constitutional right. Thus, it may be that had Lambur been given the sort of preliminary hearing on September 9, 1972, that he was given on January 9, 1973, the Parole Board at the hearing in October would have decided not to revoke his parole. If this is true, then the failure to give him a preliminary hearing contributed to his incarceration from October until January. But it was not the violation of the due process requirement recognized by Morrissey Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 that resulted in that additional period. It was, instead, the failure to make a preliminary recommendation as to the merits of his revocation that contributed to the period of incarceration. This failure does not constitute a violation of federal rights."

Plaintiff contends that the right to be protected was his right to have the letter presented before the Pardons Board. He relies principally on the Civil Rights Act that such a federal right exists.

After reviewing all the pleadings and the principles of law applicable, we concur with the Plaintiff that such a right exists which is federally protected; however, we conclude that the Defendant's Motion for Summary Judgment must be granted since the Plaintiff...