                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2007

O'Connell v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2001




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Recommended Citation
"O'Connell v. Johnson" (2007). 2007 Decisions. Paper 569.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/569


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BLD-313                                                     NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 07-2001
                                ________________

                             WARREN O'CONNELL,

                                               Appellant

                                          v.

                   JOHN BARRY JOHNSON, Superintendent,
              SCI Pine Grove, in his individual and official capacities;
                   GEORGE PATRICK, Superintendent at SCI
                Houtzdale in his individual and official capacities;
                JEFFREY BEARD, Secretary of Corrections, in his
                         individual and official capacities
                   ____________________________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                             (D.C. Civ. No. 05-cv-00163)
                    District Judge: Honorable David S. Cercone
                  _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 26, 2007

   Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                              (Filed August 17, 2007)

                            _______________________

                                    OPINION
                            _______________________
PER CURIAM

        Warren O’Connell appeals the District Court’s order granting appellees’ motion to

dismiss his civil rights complaint. The procedural history of this case and the details of

O’Connell’s claims are well-known to the parties, set forth in the District Court’s opinion,

and need not be discussed at length. Briefly, O’Connell alleged that his criminal sentence

was vacated for a period of time and that appellees forced him to work in the prison

kitchen and deducted money from his prison account for restitution during that time. He

argued that this violated his constitutional rights under the Eighth, Thirteenth, and

Fourteenth Amendments. The District Court granted appellees’ motion to dismiss.

O’Connell filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. §

1291.

        On July 23, 2001, O’Connell was sentenced to three to seven years in prison after

pleading guilty in the Court of Common Pleas of Philadelphia to criminal conspiracy,

corrupt organizations, burglary, and possession of an instrument of crime. After filing a

notice of appeal, O’Connell filed a motion for reconsideration of the sentence. The trial

court granted a hearing and vacated the sentence pending disposition of the motion for

reconsideration. After a “tortured procedural history,” the Superior Court of

Pennsylvania held that the trial court did not have jurisdiction to entertain the post-trial

motion and erred in vacating the sentence.

        In Tourscher v. McCullough, 184 F.3d 236 (3d Cir. 1999), Tourscher alleged that

he was forced to work after his conviction was vacated by the Superior Court of

                                               2
Pennsylvania. We held that “a duly convicted prisoner continues in that status until his or

her appeal becomes final even if it results in a reversal of the conviction.” Id. at 240.

Thus, Tourscher did not revert to being a pretrial detainee until the Supreme Court of

Pennsylvania denied the Commonwealth’s petition for allowance of appeal. Here, the

Superior Court held that the trial court lacked jurisdiction to vacate O’Connell’s sentence.

Thus, O’Connell was a duly convicted prisoner during the time period at issue and his

claim under the Thirteenth Amendment fails.

       O’Connell also alleged that the trial court stated at sentencing that deductions were

not to be made while he was incarcerated but rather when he was on probation or parole.

However, he has not submitted any order from the sentencing court directing that

restitution be delayed until his release from prison. Because O’Connell was a duly

convicted prisoner during the time period at issue and Pennsylvania law authorized the

Department of Corrections to make deductions from inmate accounts for restitution

payments, see 42 Pa.C.S. § 9728(b)(5), appellees did not violate O’Connell’s

constitutional rights.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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