Inmates of the Pennsylvania Department of Corrections v. Corbett

484 F. Supp. 2d 359, 2007 U.S. Dist. LEXIS 30949, 2007 WL 1215059

• Court: District Court, E.D. Pennsylvania
• Decided: April 25, 2007
• Docket: Civil Action 02-2687
• Status: Published

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

The question before the Court is whether a Pennsylvania state inmate was improperly denied parole by the Parole Board. The inmate alleges that (1) the Parole Board violated the Ex Post Facto Clause by applying the wrong standard to her parole application and/or (2) Department of Corrections officials improperly retaliated against her, causing the Parole Board to reject her application. Defendants have moved for summary judgment.

For the reasons that follow, the Court will grant the motion.

1. BACKGROUND

Plaintiff Jessica Elaine Wolfe, 1 a transgender person serving prison time in Pennsylvania for rape, brings this putative class action 2 suit against the Pennsylvania Department of Corrections (DOC), the Board of Probation and Parole (Parole Board), two DOC employees, and several Parole Board members, alleging, inter alia, that she was improperly denied parole.

The facts, as drawn from the second amended complaint, are detailed more fully in the Court’s previous opinion, Wolfe v. Pennsylvania Department of Corrections, 334 F.Supp.2d 762, 765-67 (E.D.Pa.2004). Presented here are those facts relevant to her two remaining claims, for an Ex Post Facto Clause violation and for retaliation.

In July 1996, pursuant to a plea agreement, Wolfe was convicted of raping her eight-year-old stepdaughter and sentenced to five to fifteen years in the custody of the DOC. After two initial transfers, she was assigned to the prison at SCI-Mahanoy.

In December 1996, the Pennsylvania legislature amended the preamble to parole statute, 61 Pa. Cons.Stat. § 331.1. 3 Prior to the amendment, the Parole Board was not specifically told which factors to use, or how to weigh them, in deciding prisoners’ parole applications. 4 Post-1996, the Parole Board is to consider “first and foremost the protection of the public” in deciding parole applications. 5

Because Wolfe was sentenced before the amendment took effect, the Parole Board is required to use the pre-1996 standard in deciding her parole applications. Use of the post-1996 parole standard might give rise to an Ex Post Facto Clause violation. See Mickens-Thomas v. Vaughn, 321 F.3d 374, 386 (3d Cir.2003).

In 1997, Wolfe filed suit against the DOC, alleging that its failure to provide her with hormone treatments and a sex change operation violated her Eighth Amendment rights. Wolfe v. Pa. Dep’t of Corr., Civ. No. 97-3114 (E.D. Pa., filed Apr. 30, 1997) (Brody, J.). The case was settled in 2002. In the case sub judiee, Wolfe alleges that she was retaliated against for filing this prior lawsuit. (Plaintiffs Deposition at 9-10.)

Shortly after she began serving her sentence, in November 1996, the DOC gave Wolfe a Prescriptive Program Plan that recommended she complete sex offender treatment programming (SOP). She refused, claiming that the program’s requirement that participants fully disclose past misconduct violated her Fifth Amendment rights against self-incrimination. 6 Each year, an inmate receives both a Prescriptive Program Plan for the upcoming year and a review of the inmate’s compliance with the previous year’s plan. In 1997, 1998, 1999, and 2000, her Prescriptive Program Plan recommended participation in SOP, and her review noted her past refusal to do so. Each of these program reviews stated that she was misconduct-free during the relevant time period.

In March 2001, Wolfe made her first appearance before the Parole Board. She was denied parole. The Board’s memorial-ization of its decision (known as a “Green Sheet”) stated that the Board would consider Wolfe’s compliance with the Prescriptive Program Plan at its next review. The Green Sheet’s reason for her denial of parole parroted the language from the post-1996 parole statute: “the fair administration of justice cannot be achieved through your release on parole.” In July 2001, Wolfe received her fifth Prescriptive Program Plan and review, which were identical in all material respects to the previous four.

In July 2001, Plaintiffs security level was increased from 2 to 3, which in some respects restricted her activities and amenities in the prison. When she inquired as to the reason for the increase (in an “Inmate’s Request to a Staff Member” form), she was told in a letter from defendant Brenda Wildenstein, the manager of Wolfe’s housing unit at Mahanoy, that the increase was due to her non-compliance with the Prescriptive Program Plan. Thereafter, she filed a formal grievance with defendant Robert Shannon, the superintendent of Mahanoy. Plaintiffs complaint alleges that Defendants retaliated against her for “her protestation against the conduct of all named defendants and for filing a lawsuit concerning the same.” Third Am. Compl. ¶ 132. The “protestation” is presumably comprised of the “Inmate’s Request to a Staff Member” form and the formal grievance.

In December 2001, she was transferred to the prison at SCI-Graterford. Neither Wildenstein nor Shannon work at Grater-ford; in fact, both now work at the prison in Frackville.

In July 2002, Wolfe received her sixth Prescriptive Program Plan and review, which were identical in all material respects to the previous five. She also had an interview with the Graterford prison staff to determine the prison’s possible recommendation of parole to the Parole Board. The prison did not recommend parole because, according to Wolfe, she did not complete SOP. In September 2002, Wolfe was again denied parole by the Board and again given a Green Sheet that stated that “the fair administration of justice cannot be achieved through your release on parole.”

In July 2004, Wolfe was again denied parole. This time, however, the Green Sheet parroted the language from the pre-1996 parole statute: “your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled.” 7

Wolfe brought the case at bar on May 3, 2002. 8 On August 26, 2004, the Court dismissed four of Plaintiffs six claims. Wolfe, 334 F.Supp.2d at 776. With leave of the Court, Plaintiff has amended her complaint to seek injunctive relief, in addition to other damages. See Third Am. Compl. (doc. no. 94). Defendants now move for summary judgment on the two remaining claims. Count V is a § 1983 claim for violation of the Ex Post Facto Clause against the chairperson and indi vidual members of the Parole Board. Count VI is a § 1983 claim for retaliation in violation of the First Amendment against the individual members of the Parole Board and DOC employees Brenda Wildenstein and Robert Shannon.

II. The Proper Defendants and Possible Remedies

Both the DOC and the Parole Board have been dismissed as Defendants from the case. The only remaining Defendants are the two DOC employees (Brenda Wil-denstein and Robert Shannon) and the Parole Board’s chairperson (Catherine McVey) and relevant past and present members (Allen Castor, Barbara Descher, Michael Green, Jeffrey Imboden, Gary Lucht, Benjamin Martinez, Nicholas Mutter, Sean Ryan, William Ward, Michael Webster, and Lloyd White).

Here, the Parole Board members and DOC employees are immune from suit for damages. Members of the Parole Board are absolutely immune from suit for damages for actions taken pursuant to them quasi-judicial role. 9 See Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir.1986). The DOC employees (Shannon and Wil-denstein) enjoy qualified immunity from § 1983 liability for damages because a reasonable person in their position could have believed that his or her actions were proper under the existing law. 10 See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Therefore, because none of the Defendants is subject to damages, Plaintiff can seek only equitable relief.

In addition, only the current members of the Parole Board have the power to remedy any constitutional or statutory violation; therefore, all claims for equitable relief against the Defendants who are no longer members of the Parole Board are inappropriate.

The two DOC employees (Shannon and Wildenstein) are not in a position to remedy any alleged violations. First, both worked at Mahanoy, but Wolfe contends that it was the Graterford DOC staff that gave the Parole Board an unfavorable recommendation. Wolfe was transferred to Graterford in December 2001. Second, neither DOC employee defendant continues to work at Mahanoy; both now work at Frackville. Therefore, any claim against Shannon or Wildenstein, or their successors at Mahaony, is now moot. See Spruill v. Gillis, 372 F.3d 218, 225 (3d Cir.2004) (holding that once an inmate is transferred out of a prison, the inmate’s claim for injunctive relief against officials at that prison becomes moot).

The claim against the six Parole Board members who participated in Wolfe’s parole determination but are no longer members of the Parole Board cannot proceed. The current chairperson and members of the Parole Board are the proper Defendants; they are the persons who are in a position to prevent future constitutional violations. Defendants’ contention that the present chairperson of the Parole Board, Catherine McVey, cannot be enjoined because she did not take part in any of the parole decisions affecting Wolfe, is without merit. As the Court suggested in its March 23, 2005, Order, the chairperson and current members of the Parole Board are the only proper parties against whom Wolfe may have a viable claim for injunc-tive relief. (Doc. No. 92.)

Therefore, Plaintiff can only seek injunc-tive relief, and then only against the current Parole Board members. 11

III. DISCUSSION

A. Summary Judgment Standard

A court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49, 106 S.Ct. 2505. “In considering the evidence, the court should draw all reasonable inferences against the moving party.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007). “[Sjummary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006).

B. Ex Post Facto Clause

The Third Circuit held in Mickens-Thomas v. Vaughn that application of the post-1996 parole standard to inmates sentenced under the pre-1996 standard may violate the Ex Post Facto Clause. 12 321 F.3d 374, 386 (3d Cir.2003). Then, in Richardson v. Pennsylvania Board of Probation and Parole, the Third Circuit clarified the test to be applied: an inmate must show both that the Parole Board applied the new parole standard to her application and that application of the new standard personally disadvantaged the in mate by significantly increasing the risk of being denied parole. 13 423 F.3d 282, 291 (3d Cir.2005).

1. Which Standard Was Applied?

Determining which standard the Board applied is not an easy task. Defendants argue that the Board used the pre-1996 standard; Plaintiff argues that the Board used the post-1996 standard. Given the inability to penetrate literally the Parole Board members’ minds, the Court must look to other evidence that might serve as a proxy for which standard the Board applied. This other evidence consists of (1) the Green Sheets and (2) the declaration of a Board member.

The Board’s language in Wolfe’s 2001 and 2002 Green Sheets parrots the language of the posW1996 parole statute. 14 In this respect, Wolfe’s case is factually identical to Richardson’s:

It is plain from each of Richardson’s denials of parole between 1999 and 2003 that the Board did rely on the amended Parole Act in making its determination. In 1999 and 2000, the denial of parole mirrored the language of the 1996 Amendments, and justified Richardson’s parole denial on the basis of “mandates to protect the safety of the public and to assist in the fair administration of justice.”

Richardson, 423 F.3d at 292. The Third Circuit was clear that the Parole Board’s quoting of the posW1996 parole statute in denying an inmate parole is sufficient evidence that the Parole Board improperly applied the new standard in making its determination. See id.

Defendants point to the declaration of Benjamin Martinez, a member of the Parole Board, as evidence that the Parole Board, and its constituent members, do not view the 1996 amendments as changing public policy. Defs.’ Mem. at 19. Mr. Martinez declares that the amendment is interpreted by the Board “as only a reem-phasis of the pre-existing consideration of public safety,” and he assures the Court that “the Board applied to James Elliott Wolfe only the standards, criteria and interests for deciding whether to parole an offender that the Probation and Parole Law contained when he committed his crime.” Martinez Decl. ¶¶ 7-8.

However, the Parole Board’s statements in the Green Sheets belie Mr. Martinez’s contention. And, as the Court is required to draw all inferences in favor of Plaintiff at the summary judgment stage, it is fair to say that the Parole Board applied the post-1996 standard in deciding her parole application.

2. Was Plaintiff Personally Disadvantaged?

To establish an ex post facto violation, an inmate must put forth evidence that he was personally disadvantaged by application of the new (and allegedly harsher) standard. 15 Here, the evidence must demonstrate that the inmate would likely have been paroled under the pre-1996 standard.

The Third Circuit approvingly cited to the Pennsylvania Supreme Court for the proposition that an inmate must provide “ ‘the requisite evidence that he faces a significant risk of an increase in punishment’ by showing that ‘under the pre-1996 Parole Act, the Board would likely have paroled the inmate.’ ” 16 Richardson, 423 F.3d at 291 (quoting Cimaszewski, 868 A.2d at 427). An inmate must “adduce some evidence that this new law or policy disadvantaged him by creating ‘a significant risk of increasing his punishment.’ ” Id. at 292 (quoting Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000)). “[T]he key question is whether ‘the change affected the petitioner’s own sentence detrimentally.’ ” Id. at 291 (quoting Mickens-Thomas, 321 F.3d at 393). Although such evidence may be difficult to adduce, the strict evidentiary requirement must nevertheless be honored. Id. at 292.

Following Richardson, several federal courts in Pennsylvania have been confronted with the question of whether an inmate has shown personal disadvantage by application of the new parole standard. Plaintiff has not cited any case (and this Court has not found one in its research) in which an inmate has met this burden. Ultimately, the court’s holding in Mickens-Thomas — that the inmate was personally disadvantaged by application of the new standard — has proved to be the exception rather than the rule. Indeed, lack of per suasive evidence of personal disadvantage has proved fatal to several inmates’ ex post facto claims. See, e.g., Burkholder v. Wolfe, 2007 WL 90427, at *8 (M.D.Pa. Jan.9, 2007); Simmons v. Pa. Bd. of Probation & Parole, 2006 WL 2054345, at *1 (W.D.Pa. July 24, 2006); Tyler v. Gillis, 2006 WL 2038398, at *8 (M.D.Pa. July 19, 2006); Shuhayda v. Wilson, 2006 WL 1455606, at *1 (W.D.Pa. May 22, 2006); McCoy v. Pa. Bd. of Probation & Parole, 2006 WL 59329, at *5 (M.D.Pa. Jan.10, 2006).

While the Third Circuit noted the difficulty that an inmate faces in presenting sufficient evidence that he was prejudiced by application of the newer (and likely stricter) standard, it explicitly disallowed an inmate to rest his case on the “intuitive ... argument that adjudication under stricter standards is more likely to lead to an adverse result.” Richardson, 423 F.3d at 292. In short, an inmate must present sufficient evidence to support this allegation.

The Third Circuit faulted Richardson primarily on two points: (1) he did not show whether the Parole Guidelines 17 would have recommended parole and (2) he did not provide “any evidence of the rate of parole for similarly situated prisoners before and after the 1996 Amendments.” Id. at 293. Both points are proxies for the ultimate question of whether the inmate would likely have been paroled under the pre-1996 standard.

a. The Parole Guidelines’s recommendation

Plaintiff has not put forth any evidence that the Parole Guidelines would have recommended parole pre-1996. It seems that failure to participate in sex-offender programming was grounds for denial of parole both pre- and post-1996. See Burkholder v. Wolfe, 2007 WL 90427, at *10 (M.D.Pa. Jan.9, 2007); McCoy v. Pa. Bd. of Probation & Parole, 2006 WL 59329, at *5 (M.D.Pa. Jan.10, 2006). Indeed, the pre-1996 statute’s focus on an inmate’s ability to adapt to life outside of prison, or, in other words, the degree to which the inmate has been rehabilitated, arguably provides a more compelling reason for denying a rapist’s 18 parole application for failure to complete sex-offender therapy than does the post-1996’s statute’s emphasis on public safety: without completing SOP, a rapist is not likely to be deemed “rehabilitated.”

Plaintiff has not put forth evidence based on the Parole Guidelines (or similar evidence) that an inmate in her position — a convicted rapist who has not participated in sex-offender treatment — would likely have been paroled pre-1996. 19 Plaintiffs case is thus far different from the petition er’s in-Mickens-Thomas. There, the inmate had complied with the prerequisites stated by the Parole Board in its previous denial of his parole, notably that he obtained a favorable recommendation from the DOC and he was participating in a sex-offender therapy program (although it was a “deniers” program). 321 F.3d at 381-82.

The Third Circuit recently addressed a similar situation in Shaffer v. Meyers, 163 Fed.Appx. 111 (3d Cir.2006) (per curiam) (non-precedential). Shaffer, who was sentenced for rape pre-1996, argued, based on Mickens-Thomas, that the Parole Board violated the Ex Post Facto Clause by applying the posW1996 parole guidelines to his parole application. Id. at 112-13. Shaffer had not completed SOP. Id. at 112. The Third Circuit affirmed the district court’s denial of his ex post facto claim:

Prima facie it does not seem likely that the criteria cited by the Board in Shaffer’s case — participation in a treatment program for sex offenders, the recommendation of the Department of Corrections, Shaffer’s conduct record and whether he completed any prescribed programs — would not have been considered by the Board pre-amendment, and Shaffer cites no evidence to persuade us otherwise. But even if we assume that the Board would have used different criteria pre-amendment, Shaffer has not provided adequate reasons to support the contention that application of those criteria would likely have resulted in his release on parole.

Id. at 114.

Similarly, the court in Tyler v. Gillis, 2006 WL 2038398 (M.D.Pa. July 19, 2006), denied the petitioner’s ex post facto claim. The Parole Board had denied the petitioner parole in part because he had not completed (though he was apparently enrolled in) SOP. Id. at *5. The court found that the facts of Tyler were indistinguishable from those in Shaffer:

[T]he Board in our case used largely the same criteria that the Board used in inmate Shaffer’s case, including participation and successful completion of a sex offenders treatment program, the recommendation of the DOC, the inmate’s conduct record, and completion of prison programs.... [T]he record in our case shows, as it did in the Shaffer case, that the reasons for the Board’s decisions denying our Petitioner parole were not based on new standards of parole from the 1996 amendments which were applied to our Petitioner’s case; rather, they were legitimate reasons which the Board considered pre-1996 amendments.

Id. at *7.

Burkholder v. Wolfe, 2007 WL 90427 (M.D.Pa. Jan.9, 2007), is illustrative. There, as here, the inmate had raped an underage family member, and had been sentenced to prison for the crime prior to the enactment of the 1996 Amendments. Id. at *2. The inmate did not complete SOP because, as here, he was concerned about the program’s requirement that he admit to past sexual misconduct. Id. at *3. He sought habeas relief, claiming that his denial of parole violated the Ex Post Facto Clause. “[T]he inmate must show actual disadvantage by the retroactive application of the changed law.” Id. at *8. The court noted that because the factors cited by the Parole Board in denying the petitioner parole, including his refusal to complete SOP, would have been applicable at the time he was sentenced, his ex post facto claim was “undermin[ed].” Id. at *10. The petitioner presented no evidence of “individual disadvantage”: “He has not shown that he was a good candidate for parole under criteria in effect before 1996.” Id.

In short, Wolfe cannot show that she was a good candidate for parole under the pre-1996 guidelines, because her failure to participate in sex offender therapy was a compelling reason to deny her parole even under the pre-1996 guidelines. In McCoy v. Pennsylvania Board of Probation and Parole, 2006 WL 59329, at *5 (M.D.Pa. Jan.10, 2006), the court found it “apparent that Petitioner would have been denied parole regardless of the subsequent enactment of the 1996 amendments to the Parole Act.” The Parole Board had denied the petitioner parole in part because of the “[n]oteworthy” reason that the petitioner “should have continued participation in a sex offender treatment program.” Id. Similarly, in Simmons v. Pennsylvania Board of Probation and Parole, 2006 WL 2054345, at *1 (W.D.Pa. July 24, 2006), even though the petitioner alleged that he had completed all the required programs offered by the DOC — an allegation noticeably absent from Plaintiffs complaint here — the petitioner’s ex post facto claim failed because he “offered no evidence that he would have been likely to be paroled under the pre-1996 guidelines.” “Petitioner certainly cannot obtain a writ of habeas corpus by citing Mickens-Thomas and saying ‘me too.’ ” Id. at *2.

At bottom, Defendants put forth competent evidence that an inmate in Wolfe’s position (serving prison time for rape and refusing to complete SOP) would likely not have been paroled under the pre-1996 standard. Wolfe did not put forth any evidence to the contrary (i.e., that she would likely have been paroled under the pre-1996 standard). Therefore, Wolfe has failed to raise a genuine issue of material fact that either the Parole Guidelines (or similar evidence) would have recommended that she be paroled under the pre-1996 parole statute.

b. Statistical Evidence

The Third Circuit has counseled that an inmate can demonstrate he would likely have been paroled under the pre-1996 standard through use of statistical evidence. Richardson, 423 F.3d at 293; Mickens-Thomas, 321 F.3d at 385. The statistical evidence must be sufficiently tailored to that particular inmate, though; an allegation that the overall parole rate has declined after 1996 is insufficient to state an ex post facto claim.

Indeed, in the few cases in which an inmate has put forth some statistical evidence regarding the rates of parole, courts have soundly rejected the argument because the statistics have been too generalized. In Tyler v. Gillis, 2006 WL 2038398, at *8 (M.D.Pa. July 19, 2006), the petitioner did proffer some statistics that parole rates dropped posW1996, but the court held that the statistics were not sufficiently individualized. “[GJeneral parole statistics and parole rates do not show that the 1996 Amendments were- applied in his case to his disadvantage.” Id. Indeed, an ex post facto claim cannot stand solely on an allegation “that, in the aggregate, parole rates have declined after 1996.” Shuhayda v. Wilson, 2006 WL 1455606, at *1 (W.D.Pa. May 22, 2006). The statistical evidence must show that the inmate’s personal chances of being paroled have diminished.

Moreover, the statistical evidence available in Mickens-Thomas (the case that Plaintiff here attempts to emulate) was particularly compelling. Of the 266 inmates whose sentences had ever been commuted by the governor, 265 were granted parole on their first or second application. 20 Mickens-Thomas was the sole exception. Id. The only factor that distin guished MickensThomas’s application from the 265 that came before him was that the Parole Board made its decision on his application after the enactment of the new parole standard. Id. Indeed, Richardson recognized that Mickens-Thomas was “an exceptional case because of the compelling nature of the evidence of prejudice.” 423 F.3d at 293.

The one recent decision finding an ex post facto violation is instructive for its distinct characteristics. In Pennsylvania Prison Society v. Rendell, 419 F.Supp.2d 651 (M.D.Pa.2006), the court was confronted with a change in the Board of Pardons’s voting requirements. Under the old law (under which the plaintiffs were sentenced), the Board of Pardons could recommend to the governor commutation of an inmate’s sentence on a majority vote. Under the new law, a unanimous vote of the Board was required to recommend commutation. Id. at 661. The plaintiffs presented statistical evidence — and a report from an expert in applied mathematics and statistical analysis — that the Parole Board recommended far fewer prisoners for commutation following the enactment of the 1997 amendments. The court held that there was a significant risk of increased punishment stemming from the amendments, because it is more difficult to garner a unanimous vote than it is a majority vote. Id. at 661-62.

Pennsylvania Prison Society is notable because of (1) the starkness of the statistics — commutation recommendations were far less likely after the voting requirements changed — and (2) the presence of an expert report interpreting the statistical evidence.

Here, Plaintiff hinges her argument on the rates of parole pre- and post-1996. She has introduced statistical evidence purporting to show that a rapist is less likely to be paroled post-1996 than pre-1996. Defendants hotly contest this point.

Unfortunately, the “parole rate” for prisoners with similar convictions is not readily accessible. 21 According to Defendants, such data does not currently exist among the statistics kept by the DOC and the Parole Board. Instead, both parties base their arguments on statistics that they claim can serve as a proxy for parole rates.

The “parole rate” is, mathematically, for each given year, the number of inmates who applied for parole divided by the number of inmates who were granted parole. If, on average, this number was significantly higher before the Parole Board began applying the 1996 Amendments than afterwards, there is some evidence that it is more difficult for an inmate to be paroled under the new guidelines as opposed to the old guidelines.

However, the Third Circuit has counseled that statistics involving the overall parole rate are insufficient for the requisite individualized showing that an inmate must make. Richardson, 423 F.3d at 292. Instead, an inmate must point to the parole rate for inmates serving sentences for comparable crimes. In other words, Wolfe can meet her evidentiary burden by showing that the parole rate for rapists 22 has significantly decreased.

The ideal population is thus the number of rapists 23 who applied for parole in a given year. This number has not been presented to the Court. Instead, Wolfe uses as her population the number of rapists who were paroled each year. For each of these paroled inmates, Wolfe presents the length of time (broken down into three categories: under one year, one to three years, and over three years) each inmate was eligible for parole before he was granted parole.

On the other hand, Defendants use as their population each year’s total number of rapists serving time in prison. They divide this rather large number by the rather small number of the number of rapists who were paroled in that year.

So, Wolfe’s statistics purportedly show that, post-1996, rapists are being paroled after a longer period of parole-eligibility than they were pre-1996 24 (and, by inference, that inmates are less likely to be paroled posW1996). Defendants’ statistics purportedly show that there is no trend in the parole rate for rapists. 25

Neither party’s statistics are without fault. Defendants’ population (all rapists serving time in prison in a given year) is so large as to be almost irrelevant. In addition, Defendants ignore the fact that an inmate cannot be granted parole unless he is (1) eligible for parole and (2) applies for parole.

For her part, Plaintiffs interpretation of the raw data is not particularly reliable. She presents data from only two years prior to the change in the law (compared to nine years after the change). Her sample set is relatively small. In addition, not every inmate who is eligible for parole necessarily applies for parole (though it is likely that most do). Importantly, Plaintiffs statistics do not account for the fact that the Parole Board might not necessarily have applied the new standard to all applications after 1996; it might have, knowing the law of ex post facto, applied the new standard only to inmates sentenced after 1996. Indeed, the Pennsylvania Supreme Court’s jurisprudence lends support to this idea, given that the court offered several conflicting views of the 1996 Amendments’ ex post facto implications. See Richardson, 423 F.3d at 289-91 (recounting the holdings of Winklespecht v. Pa. Bd. of Probation & Parole, 571 Pa. 685, 813 A.2d 688 (2002), Finnegan v. Pa. Bd. of Probation & Parole, 576 Pa. 59, 838 A.2d 684 (2003), Hall v. Pa. Bd. of Probation & Parole, 578 Pa. 245, 851 A.2d 859 (2004), and Cimaszewski v. Pa. Bd. of Probation & Parole, 582 Pa. 27, 868 A.2d 416 (2005)). It is likely that the Parole Board was unsure of which standard it was supposed to apply at any given time, and thus any data compiling parole decisions from this time period are suspect.

Aside from the substance of the statistics, Defendants at least submitted an affidavit from a data analyst, Mark Emery. Mr. Emery’s affidavit argues both that there is no statistically significant change in parole rates for rapists pre- and post-1996, and that Plaintiffs interpretation of the data is unreliable on several counts. Plaintiff rests on the statistics themselves. Regrettably, as explained above, the statistics do not speak for themselves.

Plaintiff has certainly made a stronger statistical showing than most other inmates, who merely rely on Mickens-Thomas and/or general parole rates. However, the Court concludes that Plaintiffs showing does not rise to the level of an ex post facto violation. Defendants have put forth compelling evidence that Plaintiff would not likely have been paroled even if the Parole Board had considered her application under the pre-1996 standard. Plaintiff has failed to raise a genuine issue of material fact, i.e. she has failed to point to competent 26 evidence that would show that she would likely have been paroled under the pre-1996 standard.

Therefore, Defendants are entitled to summary judgment on Plaintiffs Ex Post Facto Clause claim.

C. Retaliation

Plaintiff claims she was retaliated against by the Parole Board members and DOC officials, in violation of § 1983, for filing her previous lawsuit and submitting the inmate request form and grievance. 27

The Third Circuit explained the standard for a prison retaliation claim in Rauser v. Horn, 241 F.3d 330 (3d Cir.2001). First, “a prisoner-plaintiff in a retaliation case must prove that the conduct which led to the alleged retaliation was constitutionally protected.” Id. at 333. Second, the prisoner must show “that he suffered some ‘adverse action’ at the hands of prison officials.” Id. The plaintiff satisfies this requirement by demonstrating that the action “ “was sufficient to deter a person of ordinary firmness from exercising his constitutional rights.’ ” Id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000) (alterations omitted)). Plaintiff has met these two threshold requirements, because filing a lawsuit and submitting grievances are constitutionally protected activities, and the denial of parole is an adverse action.

According to Rauser, Plaintiff must now show a causal link between the protected activity and the adverse action. Id. There is a burden-shifting framework for the showing of this causal link. The prisoner must “demonstrate[ ] that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision.” Id. The defendant prison officials can still prevail, though, “by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate pe-nological interest.” Id.

Wolfe cannot demonstrate that her engaging in constitutionally protected activities was a substantial or motivating factor in the Parole Board’s denial of parole. Defendants argue that the protected activity and the alleged retaliatory actions are. too far removed in time to support an inference that they are related. Wolfe filed the previous lawsuit in 1997 and submitted her grievance in July 2001. The adverse actions (the denials of parole) took place in March 2001, September 2002, and July 2004. Thus, Wolfe was first denied parole four years after filing her lawsuit, and then denied parole again fourteen months after filing her grievance.

Plaintiff does not dispute Defendants’ contention that the actions are too far apart to give rise to an inference of retaliation. And she concedes that she has no “direct evidence that her constitutionally protected actions were a factor in any actions taken by the Defendants.” Pl.’s Mem. at 7.

Moreover, Defendants are also entitled to summary judgment on the retaliation claim based on evidence that they would have made the same decision (to deny Wolfe parole) “absent the protected conduct for reasons reasonably related to a legitimate penological interest.” See Rauser, 241 F.3d at 334. Plaintiff has only one response to this argument: that Rauser applied only to a claim for damages, in which case it would not make sense that Defendants could prevail by showing that they would have made the same decision for legitimate reasons. Pl.’s Mem. at 8. A claim for injunctive relief, though, is prospective.

Plaintiffs argument here is unavailing. One, Plaintiff requests an injunction “against further retaliatory action.” PL’s Mem. at 8. In order for an injunction to issue, the Court would first need to find past retaliatory action. Two, Plaintiff has not pointed to any caselaw or put forth a persuasive argument why Rauser was or should be limited to claims for damages. In fact, the appellant’s brief in Rauser states that the plaintiff “sought injunctive and declaratory relief, as well as monetary damages,” ' Brief for Plaintiff-Appellant, Rauser v. Horn, 241 F.3d 330 (3d Cir.2001) (99-4013), 2000 WL 33982394, at * 7, and the appellees’ brief states that the plaintiff “asked for declaratory and injunctive relief,” Brief for Appellees, Rauser v. Horn, 241 F.3d 330 (3d Cir.2001) (99-4013), 2000 WL 33982395, at *3. Therefore, while the Third Circuit’s opinion did not specify that Mr. Rauser sought injunctive relief, it is evident from the litigants’ briefs that he did. There is therefore no reason that Rauser should be limited to claims for damages.

The result is that Defendants are entitled to summary judgment on the retaliation claim because they would have made the same decision (to deny Wolfe parole) for legitimate penological reasons. 28

IV. CONCLUSION

Defendants are entitled to summary judgment on Wolfe’s two remaining claims. Defendants have put forth convincing evidence both that they did not violate the Ex Post Facto Clause and that they did not retaliate against Wolfe. Plaintiff has failed to rebut this evidence with convincing evidence of her own. She has not shown that the Parole Board would likely have granted her parole under the pre-1996 parole standard (and thus cannot make out an Ex Post Facto Clause violation), and she has not put forth sufficient evidence that she was retaliated against.

Therefore, there is no genuine issue of material fact as to the two remaining claims, and Defendants are entitled to judgment as a matter of law on both claims.

The Court reminds the members of the Parole Board that, at Wolfe’s next parole hearing, they are to evaluate her parole application under the pre-1996 standard. 29

ORDER

AND NOW, this 25th day of April 2007, for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that Defendants’ motion for summary judgment (doc. no. 105) as to Counts IV (Ex Post Facto Clause) and V (retaliation) of the third amended complaint is GRANTED.

AND IT IS SO ORDERED.

1 .The Court will refer to Plaintiff, whose legal name was changed from James Elliott Wolfe to Jessica Elaine Wolfe, in the feminine form, as the Court did in its previous opinion. Not surprisingly, Plaintiff's filings use the feminine pronoun and Defendants’ filings use the masculine.

2 . At this stage of the suit, Wolfe is the sole plaintiff.

3 . The 1996 changes to the parole law are detailed in Mickens-Thomas v. Vaughn, 321 F.3d 374, 377-80, 384-86 (3d Cir.2003).

4 . Pre-1996, § 331.1 read as follows:

The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.

5 . Post-1996, § 331.1 reads as follows:

The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison.

In providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders.

6 .Plaintiff's Fifth Amendment claim has been dismissed by the Court. 334 F.Supp.2d at 773.

7 . While this third denial of parole is not included in Plaintiff's third amended complaint, it is described in Plaintiff's response to Defendants' motion for summary judgment, Pl.'s Mem. at 3 n. 1, and the Green Sheet is attached as Exhibit 7D to Defendants' motion for summary judgment.

8 . Wolfe filed the complaint pro se. On October 20, 2003, on Wolfe’s application for appointment of counsel, the Court appointed Mary Catherine Roper, Esq., then of Drinker Biddle & Reath, LLP, to represent her (doc. no. 43). Several Drinker Biddle attorneys, including Ms. Roper, entered their appearances on behalf of Wolfe. In early 2005, Ms. Roper left Drinker Biddle and joined the ACLU of Philadelphia. She continued, along with Drinker Biddle's attorneys, to serve as Wolfe's counsel in this matter.

On March 21, 2007, Wolfe filed a motion stating her desire to fire Drinker Biddle and its attorneys for "bad acts and ineffective assistance" (doc. no. 123). On March 30, 2007, Wolfe wrote a letter to the Court and attached a letter she had written to Ms. Roper, in which Wolfe expressed displeasure with Ms. Roper's representation of her (doc. no. 125). On April 6, 2007, Drinker Biddle moved to withdraw as counsel (doc. no. 126), and on April 7, 2007, Ms. Roper followed suit (doc. no. 127). The Court will rule on these motions to withdraw after it disposes of the summary judgment motion.

In the Court’s opinion, Wolfe’s attorneys' have done an exemplary job representing her in this case.

9 .Plaintiff does not address this contention in her brief.

10 . Plaintiff does not address this contention in her brief.

11 . In most other cases alleging an ex post facto violation as a result of the alleged application of the post-1996 parole standard, the Parole Board was a party to the case and the court therefore had the option of remanding the case to the Board to re-hear the petitioner’s application for parole under the pre-1996 law. Here, the Parole Board is no longer a defendant. The Court cannot remand the case to the Board to reconsider its actions. The only viable remedy is to enjoin the members of the Board from evaluating Wolfe’s subsequent parole applications under the post-1996 law.

12 . While the pre-1996 statute did not have a specific focus, the post-1996 statute focuses on the interests of society:

The pre-1996 policies place significant weight on factors relating to an inmate’s potential to adapt to life on the outside, and on the recommendations of the institutional staff. The pre-1996 policies suggest that no single factor should be controlling in a decision to deny parole to an applicant.... [Ajlthough the risk of potential danger to the public has always been a factor, it became the controlling feature of the Board's decision after 1996.

Mickens-Thomas, 321 F.3d at 388.

Defendants argue that they are entitled to summary judgment because inmates have no “liberty interest'' in parole. The Third Circuit’s opinion in Mickens-Thomas forecloses this argument; the opinion is littered with references to inmates’ liberty interests vis-a-vis the interests of society. For example, “The Board does not dispute that the possibility of parole at sentencing based on some explicit criteria gave rise to a liberty interest.” 321 F.3d at 391. Moreover, Defendants misunderstand Wolfe’s use of the phrase “liberty interest.” In Bonilla v. Vaughn, 1998 WL 480833 (E.D.Pa. Aug.14, 1998), and Cohen v. Horn, 1998 WL 834101 (E.D.Pa. Dec.2, 1998), the two cases cited by Defendants, the plaintiffs were asserting that their liberty interests under the Due Process Clause of the 14th Amendment were violated when they were not granted parole. Wolfe does not assert that she has a liberty interest under the 14th Amendment. Rather, Wolfe claims that the Parole Board’s decision-making process pre-1996 focused on the "liberty interests” of the inmate, while post-1996 it focused on the "interests” of society.

13 . The substantive law of this ex post facto claim — an inmate’s allegation that the Parole Board applied a newer, harsher standard to his parole application — is drawn from habeas corpus jurisprudence. Indeed, every reported case to address whether the Pennsylvania Parole Board unconstitutionally applied the post-1996 parole standard to an inmate’s parole application has been a habeas corpus case.

This case is different; it is a § 1983 action. In the reported cases in this area, the habeas petitioner bears the burden of showing that the application of the post-1996 standard personally disadvantaged him by significantly increasing his risk of being denied parole. In a § 1983 case at the summary judgment stage, however, the defendants have the burden of showing that there is no genuine issue of a material fact and that they are entitled to judgment as a matter of law.

Although the line is fine, these two positions are not in conflict. Once Defendants have introduced evidence that Wolfe would likely have been denied parole pre-1996, Wolfe can survive summary judgment only by pointing to evidence that shows she would likely have not been denied parole pre-1996. In other words, if no reasonable juror could find that Wolfe would likely have been granted parole pre-1996, then there is no genuine issue of material fact.

14 . The 2001 and 2002 Green Sheets, attached as Exhibits 7B and 7C to Defendants’ motion for summary judgment, state simply: “Following an interview and review of your file, the Pennsylvania Board of Probation and Parole has determined that the fair administration of justice cannot be achieved through your release on parole.”

The 2004 Green Sheet, attached as Exhibit 7D to Defendants’ motion for summary judgment, states: “Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled; therefore, you are refused parole/reparole at this time.”

15 . Note that while the ex post facto discussion in this section is drawn from habeas corpus jurisprudence, the case is being evaluated under the Rule 56 paradigm. Defendants have put forth evidence that Wolfe would likely not have been paroled under the pre-1996 standard. Therefore, in order to defeat summary judgment, Wolfe must point to evidence that creates a genuine issue of material fact, i.e. evidence that shows she likely would have been paroled under the pre-1996 standard. In this sense, Wolfe’s burden at this stage of the proceeding is akin to a habeas petitioner's: she must point to evidence that she would likely have been paroled under the pre-1996 standard.

16 . The contours of the prisoner's burden are fine. While the Richardson court approved of Cimaszewski s “would likely have been” standard, it rejected Cimaszewski s suggestion that a prisoner must demonstrate he would have been granted parole but-for the 1996 amendments. 423 F.3d at 292 n. 5. In other words, a prisoner must show that his parole application would likely have been granted under the pre-1996 standard; he need not meet the higher burden of demonstrating that he would have been granted parole under the pre-1996 standard.

17 . The Parole Guidelines “provide a prediction of the likelihood of parole by assigning a numerical value to certain criteria, based on past patterns of recidivism and an assessment of risk to the community. The Parole Guidelines include a worksheet and a formal numerical protocol_ Prior to 1996, [d]epar-tures from the Guidelines required a written explanation to explain the policy exception ...Richardson, 423 F.3d at 284-85 & n. 1 (internal citation omitted). Neither party in this case has described what role, if any, the Parole Guidelines played or should have played.

18 . Sex-offender programming is designed to provide therapy to “sex offenders,” a broad grouping that includes the narrower category of “rapist,” Wolfe’s technical classification.

19 .Defendants overstate their case when they argue that Wolfe must present evidence that the Parole Board did not consider an inmate’s failure to participate in SOP prior to 1996. Defs.’ Mem. at 17. Wolfe need not show that the Board did not include participation in SOP as a factor in parole considerations pre-1996; rather, she can sustain her burden by showing that the Board gives more weight to an inmate’s failure to complete sex offender programming post-1996 than pre-1996. Wolfe, however, does not make this showing, or indeed even address this argument.

20 . It is unclear from the opinion whether the population of the 266 prisoners included or excluded the petitioner. Compare 321 F.3d at 385 ("The Thomas application is distinguished from these 266 cases ...with id. at 387 (“He is the only prisoner out of 266 commuted sentences....”).

21 . The Court has afforded Wolfe the opportunity to take additional discovery to attempt to capture this data. (Doc. No. 118.) Indeed, Plaintiff was permitted to submit additional briefing to bolster her statistical evidence argument. (See Doc. No. 120).

22 . One court has implied that the category of "rapist” is itself too broad. The court in Burkholder v. Wolfe, 2007 WL 90427, at *10 (M.D.Pa. Jan.9, 2007), suggested that the inmate needed to put forth statistics on the parole rates of "inmates convicted of violent sexual assaults of young girls to whom they were related." Wolfe stands in a similar situation to Burkholder: they were both convicted of raping a young stepdaughter.

23 . The DOC does not use the classification "rapist” Each inmate is classified according to the "primary offense code” for the crime for which he was convicted. (For inmates serving time for multiple crimes, there is apparently a decision made by the DOC as to which crime is “controlling.”) Here, the statistics provided to the Court are for the primary offense code of "forcible rape.” There are other crimes that one might think of as "rape” — such statutory rape, involuntary deviate sexual intercourse, sexual assault, rape of a child, etc. — that each carries its own offense code and is not included in the statistics here. See Emery Deposition at 30-37; Emery Decl. ¶ 7a.

24 . For each year 1995 through 2005, Plaintiff presents the number of rapists paroled. That population is then divided into three categories; the number paroled within one year of parole eligibility (<1), between one and three years of parole eligibility (1-3), and over three years of parole eligibility (>3).

1995;

1995: 53 total: 27(d), 21(1-3), 5(>3)

1996: 15 total: 4(d), 9(1-3), 2(>3)

1997: 39 total: 10(d), 22(1-3), 7(>3)

1998: 44 total: 4(d), 18(1-3), 22(>3)

1999: 80 total: 9(d), 43(1-3), 28(>3)

2000: 94 total: 6(d), 41(1-3), 47(>3)

2001: 64 total: 10(d), 30(1-3), 24(>3)

2002: 56 total: 9(d), 24(1-3), 23(>3)

2003: 45 total: 9(d), 22(1-3), 14(>3)

2004: 50 total: 13(d), 17(1-3), 20(>3)

2005: 39 total: 5(d), 10(1-3), 24(>3)

Plaintiff then aggregates the averages of the percentages for each year to reach the following conclusion: for the years 1995-1996, 39% of rapists were paroled within one year of being parole-eligible, 50% between one and three years, and 11% over three years; for the years 1997-2005, 16% within one year, 44% between one and three years, and 41% over three years.

Of course, using the percentages for each year is itself misleading. A truer measure would be to combine the raw data for each year and then take the percentages. Such a method would yield, for the period 1995— 1996, 45% within one year, 44% between one and three years, and 10% over three years; and for the period 1997-2005, 15% within one year, 44% between one and three years, and 41% over three years.

25 .Defendants use as their population the total number of inmates serving time in prison for rape for each given year. Unfortunately, Defendants did not provide the Court with these raw numbers. (The Court itself obtained these numbers by dividing, for each year, the number of rapists paroled by the percentage of those paroled.) For instance, in 1995, of the 1828 rapists serving time, 53 (or 2.9%) were paroled.

1995: 1828 total, 53 paroled (2.9%)

1996: 1875 total, 15 paroled (.8%)

1997: 2053 total, 39 paroled (1.9%)

1998: 2095 total, 44 paroled (2.1%)

1999: 2051 total, 80 paroled (3.9%)

2000: 2000 total, 94 paroled (4.7%)

2001: 2065 total, 64 paroled (3.1%)

2002: 2074 total, 56 paroled (2.7%)

2003: 2143 total, 45 paroled (2.1%)

2004: 2083 total, 50 paroled (2.4%)

2005: 2167 total, 39 paroled (1.8%)

These statistics show that the percentage of rapists paroled in a given year does not follow a particular pattern.

In the aggregate, for the years 1995-1996, a given rapist had a 1.8% chance of being pa roled. For the years 1997-2005, a given rapist had a 2.7% chance of being paroled.

26 . The requirement that the evidence be "competent” is of particular import here because without an expert report interpreting the data, the Court cannot conclude that the data reliably demonstrate anything.

27 . Defendants make a cursory assertion that because none of the Defendants was named in Wolfe’s previous suit, none has the requisite motive to retaliate against her. This argument is not particularly convincing: a successor prison official can retaliate against an inmate for the inmate’s actions against a predecessor official. Defendants have not provided a compelling reason why the retaliation has to be personal to the particular prison official.

28 . Plaintiff does not refute this contention.

29 . Even if Wolfe had prevailed here — and indeed even if she had prevailed at trial — her only possible remedy would still be to have the members of the Parole Board evaluate her future parole applications under the pre-1996 standard. By virtue of this Court’s decision here — and the Third Circuit’s decisions in Mickens-Thomas and Richardson and the Pennsylvania Supreme Court’s decision in Ci-maszewski — the members of the Parole Board surely now know that it is their duty to evaluate Wolfe’s future parole applications under the pre-1996 standard.