Opinion
CIVIL NO. 1:17-CV-509
03-24-2017
JOHN TIEBOUT, and LISA TIEBOUT, Plaintiffs, v. ROBERT SHAW, KELLY EVANS, JOHN MISQUITTA, Defendants
(Judge Kane)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
This case represents the second effort by the plaintiff, John Tiebout, and his spouse, Lisa Tiebout, to secure conjugal privileges as he completes a state criminal sentence. Tiebout's prior effort was unavailing. Tiebout v. Shaw, Civ No. 1:16-CV-2247. This second effort fares no better.
While the plaintiffs' current complaint is an extremely spare document, it appears that John Tiebout is a parolee under the supervision of the Pennsylvania Board of Probation and Parole, and Tiebout is currently confined in a halfway house. Like his prior civil complaint, this pleading appears to be predicated on the plaintiffs' frustration with the fact that Mr. Tiebout has been assigned to live for a period in a halfway house under supervision of the Pennsylvania Board of Probation and Parole, instead of being permitted to reside with his wife, which they would prefer. Alleging diversity of citizenship, something which plainly does not exist on the face of this complaint since all of the parties are residents of Pennsylvania, the plaintiffs seek injunctive relief which would apparently have this Court find that the plaintiffs enjoy a right to be free from confinement in a halfway house, and a concomitant right to cohabitate with one another.
Along with this complaint the plaintiffs have filed two motions seeking leave to proceed in form pauperis. (Docs. 2 and 6.) While we will grant these motions, because the complaint fails to allege facts that would give rise to a cognizable legal claim, it will be recommended that the complaint be dismissed sua sponte.
II. STANDARD OF REVIEW
Because the plaintiffs have sought leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, the Court is enjoined to screen the complaint in order to determine whether it is frivolous or malicious, or if it fails to state a claim, or otherwise seeks monetary relief against a defendant who is immune. See 28 U.S.C. § 1915(e)(2)(B) (mandating screening process in in forma pauperis actions).
Whether a complaint fails to state a claim under 28 U.S.C. § 1915(e) is governed by the same standards that are applicable to motions to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "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) (citations omitted). In order to state a valid cause of action in federal court, a party must provide some factual grounds for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. 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.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)(quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must "'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
Judged by these standards, the instant complaint, like the prior complaint filed by Mr. Tiebout, fails as a matter of law and should be dismissed.
III. DISCUSSION
At the outset, we note that in their complaint the plaintiffs assert federal jurisdiction based upon diversity of citizenship, (Doc. 1, Section II.) The plaintiffs rely upon this court's diversity jurisdiction to pursue this case even though their complaint plainly identifies all parties as Pennsylvania residents.
This they cannot do. It is well-settled that federal courts are courts of limited jurisdiction. As a general rule, there are two primary grounds for federal district court jurisdiction over a civil lawsuit. First, "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States." 28 U.S.C. § 1332(a)(1). This ground of federal jurisdiction is known as diversity jurisdiction. The second principal ground for invoking the jurisdiction of a federal court is known as federal question jurisdiction. Under this ground of jurisdiction, "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §1331.
Here, while the plaintiffs invoke this court's diversity jurisdiction their complaint simply does not allege that this case is a "civil action[] where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between- (1) citizens of different States." 28 U.S.C. § 1332(a)(1)(emphasis added). In the instant case, this court's diversity jurisdiction does not provide a basis for exercising jurisdiction over this particular controversy since the complaint recites that the plaintiffs and the defendants are all citizens and residents of Pennsylvania. Given that the complaint reveals on its face that this lawsuit is not between citizens of different states, the plaintiffs may not invoke diversity jurisdiction in this matter.
Furthermore, this case also fails as a federal civil rights action brought under 42 U.S.C. § 1983. That statute "imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Id. In order to establish a claim under § 1983, therefore, a plaintiff must establish both a deprivation of a federally protected right and that this deprivation was committed by one acting under color of state law." Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
In this case, it is clear that the complaint does not sufficiently allege facts that articulate a claim under these prevailing standards. As a threshold matter, the plaintiffs do not identify any federal constitutional or statutory right that the defendants allegedly violated by refusing this demand to be released from confinement in a halfway house under supervision so that Mr. Tiebout can reside with his wife. In fact, the plaintiffs provide almost no detail in the complaint regarding the terms of Tiebout's parole and supervision, though it appears reasonably clear that he currently lives in some type of custodial environment as part of a criminal penalty that was imposed by the Commonwealth. Instead, the plaintiffs confine their allegations an insistence that they wish to renew their lives together now, rather than await the completion of this state criminal sentence. While this is an understandable human desire, it is plainly insufficient to state a constitutional claim upon which this court can act.
To the extent that Mr. Tiebout is being housed in a custodial environment as part of a criminal sanction, and parole supervision, he enjoys fewer rights than those who are not subject to such restrictions, including the asserted right to choose to reside with his wife while under a criminal sentence. It is well settled that prisoners have no constitutional rights while in custody to contact visits or conjugal visits. See Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (no due process right to unfettered visitation); Block v. Rutherford, 468 U.S. 576, 585-88 (1984) (pretrial detainees have no constitutional due process right to contact visits). The United States Court of Appeals for the Third Circuit has observed that placement in a halfway house, which is where the plaintiff apparently resides, amounts to "institutional confinement" when such housing imposes limitations on the freedom of its residents. When a parolee is subject to such restrictions on his movement or living conditions, he may also be subjected to certain significant restrictions on his liberty interests. Haley v. Kintock Group, 587 F. App'x 1, 3 (3d Cir. 2014); see also Asquith v. Dep't of Corr., 186 F.3d 407, 411 (3d Cir. 1999).
It is also true that a parolee's liberty interests often are dependent on the particular facts and circumstances of a given case. The Supreme Court has noted regarding the "nature of the interest of the parolee in his continued liberty" as follows:
Subject to the conditions of his parole, [a parolee] can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison . . . . The parolee has relief on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.Morrissey v. Brewer, 408 U.S. 471, 482 (1972). However, when a parolee is subject to confinement in a halfway house or other institutional setting, as is apparently the case here, his liberty interests and due process rights are also substantially curtailed. Asquith, 186 F.3d at 411 (placement in a halfway house amounts to "institutional confinement" when significant restrictions are placed on the freedom of its residents); see also Montanye v. Haymes, 427 U.S. 236, 242 (1976) ("As long as the conditions or degree of confinement . . . is within the sentence imposed . . . and is not otherwise violative of the Constitution, the Due Process Clause does not itself subject an inmate's treatment by prison authorities to judicial oversight.")
The plaintiffs in this case tacitly acknowledge that as part of this custodial sentence and parole conditions, Mr. Tiebout presently resides in a halfway house and is not at liberty to live with his wife. The plaintiffs offer no factual details regarding the nature of his sentence, or regarding his parole and restrictions that have been placed upon his movement and living circumstances. Instead, they simply allege a freestanding right to live together, and offer no legal or factual support for this declared right.
Because the complaint fails to allege facts that could support the due process claim being asserted, the complaint should be dismissed in its current form. We recognize that a pro se plaintiff should often be granted leave to amend prior to the dismissal of a complaint, Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002), unless leave to amend should be denied as futile. Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). In this case, however, we find that granting leave to amend this, Tiebout's second meritless complaint, would be futile since the plaintiffs have twice failed to state a federal constitutional claim, and it is apparent that there is no diversity of citizenship in this case. Therefore, it is recommended that this complaint be dismissed without granting further leave to amend.
IV. RECOMMENDATION
Accordingly, IT IS HEREBY ORDERED THAT the plaintiffs' motions for leave to proceed in forma pauperis (Docs. 2 and 6) are GRANTED, but IT IS RECOMMENDED THAT the plaintiffs' complaint (Doc. 1) be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The
judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 24th day of March, 2017.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge