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Precedential or Non-Precedential: Non-Precedential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BLD-313 NOT PRECEDENTIAL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
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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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