Thomas v. Krasner

• Decision Date: 01 April 2021
• Docket Number: CIVIL ACTION NO. 20-CV-6586
• Parties: GREGORY THOMAS, Plaintiff, v. LAWRENCE KRASNER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

GREGORY THOMAS, Plaintiff, v. LAWRENCE KRASNER, et al., Defendants.

CIVIL ACTION NO. 20-CV-6586

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

APRIL 1, 2021

MEMORANDUM

JOYNER, J.

Plaintiff Gregory Thomas, a prisoner incarcerated at SCI-Albion, filed this civil action pursuant to 42 U.S.C. § 1983 against Philadelphia District Attorney Lawrence Krasner, the "RTKL Law Office" of the Philadelphia Police Department,¹ and the "RTKL Office Philadelphia [District] Attorney's Office." (ECF No. 2 at 1.)² Thomas seeks leave to proceed in forma pauperis. For the following reasons, the Court will grant Thomas leave to proceed in forma pauperis and dismiss his Complaint.

I. FACTUAL ALLEGATIONS³

Thomas is currently serving two life sentences for two murder convictions and other crimes of which he was convicted in the Philadelphia Court of Common Pleas in 1991. SeeCommonwealth v. Thomas, CP-51-CR-0820411-1990 & CP-51-CR-0316801-1989 (C.P. Phila.). He filed several petitions for post-conviction relief, none of which were successful. See, e.g., Com. v. Thomas, No. 1601 EDA 2013, 2014 WL 10889863, at *4 (Pa. Super. Ct. Aug. 8, 2014) (affirming dismissal of Thomas's fifth post-conviction petition). Thomas also unsuccessfully sought habeas relief in this Court, Thomas v. Wolf, Civ. A. No. 04-1737, 2005 WL 2002609, at *1 (E.D. Pa. Aug. 18, 2005), and the Court of Appeals for the Third Circuit has denied his request to file a second or successive petition. In re: Thomas, 3d Cir. No. 12-2334 (May 31, 2012 Order). The dockets for Thomas's state criminal cases reflect pending post-conviction petitions that he last amended on September 9, 2020.

This civil action is motivated by Thomas's desire to seek clemency for the crimes of which he has been convicted. In 2018 he filed a clemency application. (ECF No. 2 at 4.) Thomas alleges that he needs certain information in his "homicide case file" to complete the clemency application pursuant to the applicable rules. (Id.) Thomas asserts that the clemency application "requested information contain[ed] inside [his] criminal Homicide files in order for [him] to receive a fair hearing," specifically information about Thomas's "actions in the crime." (Id. at 5.) Thomas alleges that he will not receive a fair hearing if he cannot complete the application based on the information in the file. (Id.) On August 10, 2020, Thomas contacted the Philadelphia District Attorney's Office and on December 7, 2020, he contacted the Philadelphia Police Department's "Right to Know Law Office" to obtain the homicide file. (Id. at 4.) However, he still has not received the file. Thomas attached as exhibits to his Complaint copies of letters and requests he sent to, among others, the Right to Know Law Office of the Philadelphia Police Department and employees of the Philadelphia District Attorney's Office seeking his records to assist with his clemency application.

Thomas alleges that the Defendants' failure to forward this file upon his request violates his First Amendment, Eighth Amendment, and due process rights, as well as his "right to know rights." (Id. at 3-4.) Thomas is not seeking release from imprisonment. (Id. at 4.) Rather, he seeks "injunctive relief of the Homicide Files so [he] can provide the information to the Board of Pardons" and provide "true and correct statements [and] answers to [his] file for clemency." (Id. at 5.) He also seeks $200,000 in damages. (ECF No. 6 at 2.)

The website for the Pennsylvania Board of Pardons, which reviews applications for clemency and makes recommendations to the Governor, explains the current application process. Pennsylvania Board of Pardons, at https://www.bop.pa.gov/Apply%20for%20Clemency/Pages/How-to-Obtain-an-Application.aspx (last accessed Mar. 29, 2021).⁴ According to the website, applications for clemency must contain the following court documents: criminal complaint, affidavit of probable cause, criminal information, plea or verdict, and sentencing order. Id. However, the website also states that "incarcerated applicants do not need to obtain court documents to submit with their application." Id. The application itself similarly directs applicants to obtain the aforementioned court documents from the Court of Common Pleas in the relevant court of conviction, including proof of payment of financial obligations, and notes that "applicants currently incarcerated, do not have to obtain the documents." See https://www.bop.pa.gov/Apply%20for%20Clemency/Documents/Application%20Packet%20-%20Revised%20%2010-16-20.pdf (last accessed Mar. 29, 2021). The remainder of theapplication requests the applicant's personal information and information about the offense of conviction, including the date of the incident, the OTN number, the offense or offenses of conviction, a description of the incident, how the applicant was involved, what the applicant did, and how the applicant was caught. Id. The application also asks for information about additional arrests or convictions. Id.

II. STANDARD OF REVIEW

Thomas is granted leave to proceed in forma pauperis because it appears that he is unable to pay the costs of filing suit.⁵ As Thomas is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a claim. To survive dismissal, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). "[M]ere conclusory statements[] do not suffice." Id. The Court may also consider matters of public record. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). As Thomas is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

Additionally, when allowing a plaintiff to proceed in forma pauperis the Court must review the pleadings and dismiss the matter if it determines, inter alia, that the action fails to set forth a proper basis for this Court's subject matter jurisdiction. 28 U.S.C. § 1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Group Against Smog and Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that "an objection to subject matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua sponte"). A plaintiff commencing an action in federal court bears the burden of establishing federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) ("The burden of establishing federal jurisdiction rests with the party asserting its existence." (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))).

III. DISCUSSION

A. Section 1983 Claims

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The essence of Thomas's Complaint is that the Defendants' failure to provide him a copy of his homicide file violates his constitutional rights because it prevents him from proceeding on his clemency application and/or receiving a fair hearing on his clemency application.

The Supreme Court has held that there is no federal constitutional right to executive clemency. See Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-65 (1981) (describing an inmate's appeal for clemency as "simply a unilateral hope"). More recently, in District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52, 68 (2009), the SupremeCourt addressed a § 1983 lawsuit filed by a plaintiff claiming a freestanding constitutional right to obtain post-conviction access to evidence for DNA testing that he could use to pursue a petition for post-conviction relief or for clemency. The Supreme Court quickly rejected the plaintiff's interest in clemency as a potential source of a liberty interest cognizable under the Due Process Clause, explaining that since "noncapital defendants do not have a liberty interest in traditional state executive clemency, to which no particular claimant is entitled as a matter of state law[,]" one "cannot challenge the constitutionality of any procedures available to vindicate an interest in state clemency." Dist. Attorney's Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 68 (2009); see also McKithen v. Brown, 626 F.3d 143, 151 (2d Cir. 2010) ("The Osborne Court concluded that a prisoner has no liberty interest with respect to 'any procedures available to vindicate an interest in state clemency' because clemency is inherently discretionary and subject to the whim, or grace, of the decisionmaker; it is, in other words, a form of relief to which a prisoner has no right." (quoting Osborne, 557 U.S. at 68)); Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir. 2009) ("There is no Fourteenth Amendment property or liberty interest in obtaining a pardon in Illinois—no substantive entitlement, in other words—and so no ground for a claim of denial of due process."). Since Thomas has no constitutional right to clemency, he also has no constitutional right to require the Defendants to provide materials to assist him in his efforts to obtain clemency.⁶

Although Thomas has a liberty interest in demonstrating his innocence with new evidence, assuming that is in part what he is trying to do,⁷ States have "flexibility in deciding what procedures are needed in the context of postconviction relief." Osborne, 557 U.S. at 69; cf. Grier v. Klem, 591 F.3d 672, 678 (3d Cir. 2010) ("There is no substantive due process right to access DNA evidence, and procedural due process does not require that a district attorney disclose all potentially exculpatory evidence...