McCrery v. Mark, Civ. No. 90-4652.

• Decision Date: 28 May 1993
• Docket Number: Civ. No. 90-4652.
• Citation: 823 F. Supp. 288
• Parties: Michael McCRERY v. Dominic MARK.
• Court: U.S. District Court — Eastern District of Pennsylvania

823 F. Supp. 288

Michael McCRERY v. Dominic MARK.

Civ. No. 90-4652.

United States District Court, E.D. Pennsylvania.

May 28, 1993.

Michael McCrery, pro se.

Sue Ann Unger, Office of Atty. Gen., Philadelphia, PA, for defendant.

MEMORANDUM

LOUIS H. POLLAK, District Judge.

Plaintiff Michael McCrery, an inmate at S.C.I. Graterford, has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the continued presence in his prison files of an erroneous 1990 psychological evaluation — completed by defendant Dominic Mark, a corrections counselor at S.C.I. Graterford — impinges upon a variety of plaintiff's liberty interests in violation of the Fourteenth Amendment.¹ Plaintiff seeks injunctive relief in the form of the expungement of the 1990 case review from his prison file and the insertion of a report into his file disclaiming the allegedly incorrect statements in the 1990 case review. Defendant has filed a motion for summary judgment.

I. Facts

When considering a summary judgment motion, the court must take as true the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). For purposes of this summary judgment motion, then, the facts of the case are as follows:

In August of 1988, plaintiff was convicted of the first degree murder of his estranged wife and was sentenced to life in prison. On August 8, 1988 he was transferred to E.E.C.C. Graterford and he was soon admitted to the Mental Health Unit there for assessment and classification. On or about August 26, 1988, plaintiff received classification for S.C.I. Graterford.

Defendant Mark has been a correctional counselor at S.C.I. Graterford since April 1989. Mark Aff. at ¶ 1. McCrery was one of the inmates assigned to Mark for monitoring. According to defendant, his responsibilities as a counselor involved preparing a prescriptive program plan about once a year, completing an annual case review, and attempting to contact the inmate at least once every six months. Id. at ¶ 3.

At issue in plaintiff's complaint is the defendant's July 3, 1990 Annual Case Review ("ACR") of plaintiff. See Plaintiff's Ex. 13; Defendant Ex. H. The report, completed in plaintiff's absence since plaintiff refused to attend the scheduled meeting (Complaint at ¶ 4), states that defendant's "Areas of Concern" are plaintiff's "mental health," "assaultiveness," and "suicidal" tendencies. Id. The ACR further states:

1. McCrery continues to refuse to honor treatment passes.

2. Recommend Impulse Control Group.

3. Report any problem to counselor, Mental Health, or other appropriate staff member.

4. He has maintained a clear conduct record since reception.

Id. In place of plaintiff's signature, defendant wrote "in absentia." Id. Defendant explains that he based plaintiff's July 3 ACR on defendant's prior contacts with plaintiff and on a review of earlier records and reports concerning plaintiff. See Mark Affidavit at ¶ 31; see also Plaintiff's Ex. 4.

Plaintiff mailed his present complaint to the Clerk of the Court for the Eastern District of Pennsylvania on or about July 12, 1990² — nine days after the July 3 ACR was completed. In his complaint plaintiff contends that defendant's descriptions of plaintiff as assaultive, suicidal and in need of impulse control are "pejorative labels" that have no substantive basis. Complaint at ¶¶ 5, 6, and 8. Plaintiff argues that his records do not support defendant's conclusions, particularly with regard to his supposed suicidal ideation. Plaintiff did not file a grievance with the prison officials regarding the allegedly false July 3 ACR. Cf. Defendant's Ex. L (copy of Administrative Directive: Commonwealth of Pennsylvania Bureau of Corrections Consolidated Inmate Grievance Review System).

In the time between the filing of plaintiff's complaint and the filing of defendant's motion for summary judgment on August 2, 1991, the plaintiff has undergone two further psychological evaluations. On November 29, 1990 the Chief Psychologist at S.C.I. Graterford, Dr. Lance Couturier, examined plaintiff. And on January 17, 1991 defendant conducted a personal examination of plaintiff. Both examinations state that plaintiff does not show present signs of suicidal ideation, assaultiveness or problem with impulse control. See Plaintiff's Ex. 4; Plaintiff's Ex. 14.

II. Discussion

Plaintiff seeks two forms of injunctive relief: first, that defendant should enter into plaintiff's prison record a report disclaiming the false descriptions in the July 3 ACR; and second, that the July 3 ACR be expunged from the prison file. Complaint at ¶¶ D, E. I will address each of these in turn.

A. A Disclaimer

From this court's view, plaintiff has already received the equivalent of a disclaimer. While his prison file does not contain a report or letter specifically deeming the statements in the July 3 ACR false, there are two psychological examinations of plaintiff completed since the challenged ACR, both calling into question its reliability. These examinations both disclose that the July 3 ACR was based on a review of plaintiff's records, not on a personal examination. Moreover, both observe that plaintiff is not currently exhibiting signs of the supposed areas of concern—assaultiveness, lack of impulse control, and suicidal ideation—listed in the July 3 ACR.

In his November 29, 1990 examination of plaintiff, Dr. Courturier reported:

Mr. McCrery is an intellectually gifted individual ... The depression and suicidal ideation which were described in Mr. McCreary's sic earlierreports sic did not appear in the present evaluation. No salient evidence of a thought or emotional disorder was noted. Nor does the inmate appear assaultive or display impulse control problems. Past ACRs of 1989 and 1990 which identified concerns in the area of suicide, impulse control and assaultive behavior were based on a review of prior records and reports.... Mr. McCrery does not appear to be suicidal or assaultive and appears to display adequate impulse control.

Plaintiff's Ex. 4. In addition, Dr. Courturier notes that "the inmate ... is presently suing his counselor." Id. In defendant's January 17, 1991 ACR of plaintiff—an evaluation signed by plaintiff—defendant indicated that plaintiff's "mental health," "assaultiveness," and "suicidal" ideation were still "Areas of Concern." Defendant's Ex. K. However, this time defendant qualified his statements. With respect to plaintiff's alleged "assaultiveness," defendant stated that this conclusion was "based on plaintiff's offense only." Id. Defendant further explained, "since plaintiff's reception, he has a clear conduct record. Staff has not reported any assaultive behavior. A recent psychological evaluation does not indicate any assaultive concerns." Id. As for plaintiff's "suicidal" tendencies, defendant made clear that the conclusion was "based on prior records," and that "a recent psychological evaluation does not list any suicidal concerns." Id. Plaintiff has not challenged the January 17 ACR either by presenting a grievance to prison officials or by filing suit.

While the newer examinations do not expressly disclaim the July 3 ACR, they do the equivalent. They discredit the ACR to the extent that they point out that the earlier report is neither based on a personal examination of plaintiff nor accurately reflective of plaintiff's current condition. Moreover, Dr. Courturier's reference to the present suit against plaintiff's counselor further advises the person reviewing plaintiff's files to question plaintiff's earlier evaluations. The newer examinations make it highly unlikely that the July 3 ACR will be relied upon in any significant way.

B. Expungement

In certain limited circumstances, an inmate has the constitutional right, founded on the principles of due process, to have incorrect information expunged from his record. See Paine v. Baker, 595 F.2d 197, 201 (4th Cir.), cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979); see also United States ex rel. Silverman v. Comm. of Penn., 527 F.Supp. 742, 745 (W.D.Pa.1981), aff'd 707 F.2d 1395 (3d Cir.1983). "Expungement is ordinarily reserved for remedying the denial of an individual's constitutional rights." Coles v. Levine, 561 F.Supp. 146, 153 (D.Md. 1983) (citing U.S. v. McLeod, 385 F.2d 734, 750 (5th Cir.1967)), aff'd 725 F.2d 674 (4th Cir.1984). Under Paine—a case frequently looked to on the matter of expunging prison records³—expungement may be appropriate where plaintiff can show that the following three conditions exist:

(1) that information is in his file, (2) that the information is false, and (3) that it is relied on to a constitutionally significant degree.

Paine, 595 F.2d at 201. This three-part standard, the Fourth Circuit believed, "reflected a proper balancing of the inmates' need for some safeguard, the proper circumstances in which the safeguard may be invoked, and the potential burden on prison administrators." Id.

Defendant argues that plaintiff has failed under Paine to claim that his constitutional rights have been violated by the presence of the July 3 ACR in plaintiff's prison file. Accordingly, defendant contends that he is entitled to summary judgment on plaintiff's § 1983 claim. Under Fed.R.Civ.P. 56(c), a district court may enter summary judgment where the moving party has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

There is no dispute that plaintiff has satisfied the first Paine condition. Plaintiff alleges that the challenged ACR is in his prison file, and defendant appears to concede this. As for the second condition, plaintiff suggests in his legal memorandum that defendant has admitted that the information in the July 3 ACR is false. Although I do not interpret defendant's papers as making this concession, I will assume...