D'AMARIO v. WEINER
MEMORANDUM. Signed by Judge Juan R. Sanchez on 4/3/14. (dd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ARTHUR D’AMARIO, III
CUSPO BARRY J. WEINER, et al.
Juan R. Sánchez, J.
April 3, 2014
Plaintiff Arthur D’Amario, III seeks reconsideration of this Court’s October 8, 2013,
Memorandum and Order granting summary judgment to Barry J. Weiner and Kathleen Hopkins
on D’Amario’s claims these Defendants violated his constitutional rights by preventing him from
returning to Rhode Island to serve his supervised release there.
D’Amario also seeks
reconsideration of the Court’s earlier dismissal of claims challenging conditions of his
supervised release on the basis that those claims are not cognizable in a civil rights action. For
the following reasons, the Court will deny D’Amario’s motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
D’Amario’s Amended Complaint named numerous Defendants, including Weiner and
Hopkins, two Probation Officers in the District of Rhode Island, and raised several claims, many
of which were brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). D’Amario alleged that judges and attorneys were conspiring
against him, his federal convictions were the product of fraud, and the federal courts were
essentially rigged against him. D’Amario, who was on supervised release when he filed this
lawsuit after having been convicted in the District of New Jersey for threatening a federal judge,
see United States v. D’Amario, Crim. A. No. 06-112 (D.N.J.), also challenged the
constitutionality of certain aspects of his supervised release and alleged Weiner and Hopkins
violated his constitutional rights by refusing to allow him to transfer his supervised release to the
District of Rhode Island.
In a February 19, 2013, Memorandum and Order, the Court granted D’Amario leave to
proceed in forma pauperis and dismissed many of his claims pursuant to 28 U.S.C.
In particular, the Court dismissed D’Amario’s claims challenging the
conditions of his supervised release, concluding those claims were not cognizable in a civil rights
action because D’Amario was required to raise them in a habeas proceeding, or establish that the
challenged conditions had been invalidated prior to proceeding in a civil rights action for
damages. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The Court, however, allowed
D’Amario to proceed on his Bivens claim that Weiner and Hopkins prevented him from
transferring his supervised release from the District of New Jersey to the District of Rhode
Weiner and Hopkins responded to the Amended Complaint by filing a motion for
summary judgment arguing they were entitled to qualified immunity. D’Amario subsequently
violated the terms of his supervised release, and his supervised release was revoked in the
District of New Jersey. In an October 8, 2013, Memorandum and Order, the Court granted
summary judgment to Weiner and Hopkins on the basis that nothing in the record established
those Defendants had violated D’Amario’s constitutional rights or acted unreasonably. Indeed,
there was no evidence the Defendants “banished” D’Amario from Rhode Island, as he claimed,
or otherwise interfered with his attempts to secure housing there.
D’Amario moves for reconsideration of the Court’s Order granting summary judgment.
He also challenges the Court’s dismissal of his claims related to the conditions of his supervised
release in light of new precedent from the Ninth Circuit.
STANDARD OF REVIEW
A party seeking reconsideration must establish “(1) an intervening change in the
controlling law; (2) the availability of new evidence that was not available [at the time of the
court’s prior ruling]; or (3) the need to correct a clear error of law or fact or to prevent manifest
injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999). In other words, “a motion for reconsideration addresses only factual and legal matters
that the Court may have overlooked.” Glendon Energy Co. v. Borough of Glendon, 836 F. Supp.
1109, 1122 (E.D. Pa. 1993) (citation and internal quotation marks omitted). “It is improper on a
motion for reconsideration to ask the Court to rethink what it had already thought through—
rightly or wrongly.” Id. (citation, internal quotation marks, and alterations omitted).
In his motion for reconsideration, D’Amario contends the Court granted summary
judgment based on an erroneous conclusion that “there is no evidence Defendants received any
transfer requests from the BOP or the Probation Office in New Jersey.” Mot. for Recons. 1
(quoting Oct. 8, 2013, Mem. 7-8). D’Amario maintains that, contrary to the Court’s observation,
an order in his criminal case and a transcript from his revocation hearing establish the Probation
Office in Rhode Island had refused a transfer request.1
D’Amario’s argument is based on a selective quoting from the Court’s Memorandum,
which omits the Court’s observation that Defendants had presented evidence (which D’Amario
claimed was falsified) of “one pre-release request to the District of Rhode Island Probation
Office that D’Amario reside with his aunt.” Oct. 8, 2013, Mem. 7. The evidence presented in
D’Amario contends these documents were not available to him at the time he filed his response
to the Defendants’ motion.
connection with D’Amario’s motion is entirely consistent with Defendants’ version of events.
That the New Jersey officers who testified at D’Amario’s revocation hearing did not recall the
reason for the denial of the transfer request does not establish Defendants falsified evidence. In
fact, Judge Diamond, in denying D’Amario’s Motion to Correct Sentence in his criminal case,
relied upon the same evidence submitted by Defendants in this case. See United States v.
D’Amario, Crim. A. No. 06-112 (D.N.J.) (Document No. 410 at 2 (citing Document No. 407 at
2, Ex. B)). In any event, taking the entire record into consideration—including the documents
attached to the motion for reconsideration—D’Amario simply has not established that the
Defendants violated his constitutional rights. Furthermore, as explained in the Court’s October
8, 2013, Memorandum, D’Amario had no right to be released in the District of Rhode Island.
Accordingly, he has not established a basis for reconsideration.
Dismissal of Challenges to Supervised Release
D’Amario also challenges the Court’s dismissal of his claims challenging the conditions
of his supervised release2 in light of the Ninth Circuit’s recent opinion in Thornton v. Brown, --F.3d ---, 2013 WL 7216368 (9th Cir. Feb. 18, 2014). Since any claims for injunctive relief were
mooted by the revocation of D’Amario’s supervised release, only his damages claims are at issue
in his current challenge. See Oct. 8, 2013, Mem. 5 n.4 (citing Newland v. Reehorst, 328 F.
App’x 788, 790 (3d Cir. 2009) (per curiam)).
Those claims are encompassed in paragraphs 26 and 27 of the Amended Complaint.
Specifically, D’Amario alleged he was “subject[ed] . . . to harsh, cruel and unusual [supervised
release] conditions . . . [in that he] has been held under a form of house arrest in NJ and not
allowed to drive his car, wear his own clothes, rent an apartment, see his family, date a female,
exercise, or engage in any social activities.” Am. Compl. ¶ 26. He further alleged Weiner and
Hopkins would not allow him to stay with his mother in Arizona. Id. ¶ 27. D’Amario sought
damages and injunctive relief, including an order restraining Weiner and Hopkins from
“interfering with [his] travel to AZ to visit his mother.” Id. at 7. Likewise, D’Amario’s motions
for a temporary restraining order sought relief from the restrictions on his ability to travel to
Arizona to visit his mother.
The Supreme Court has long recognized a prisoner challenging the fact or duration of his
confinement must file a petition for a writ of habeas corpus rather than a civil rights action. See,
e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In Preiser, the Court held prisoners
challenging the validity of administrative procedures used to deprive them of good-time credits
and seeking release from imprisonment were required to proceed in a habeas action. The Court
explained “the essence of habeas corpus is an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”
411 U.S. at 484. As the constitutional challenges raised by the prisoners essentially challenged
their confinement and sought “immediate release from that confinement or the shortening of its
duration,” the claims were within the “core of habeas corpus” and thus could not be raised in a
civil rights action. Id. at 489.
The Supreme Court has since extended Preiser to preclude plaintiffs from proceeding in
a civil rights action—even if they only seek damages or declaratory relief—if their claim is
essentially a constitutional attack on their conviction or imprisonment. See Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005) (holding a civil rights action is “barred (absent prior invalidation)—no
matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison proceedings)—if success in that action
would necessarily demonstrate the invalidity of confinement or its duration” (emphasis
omitted)). The Court held in Heck v. Humphrey, that a civil rights plaintiff may not “recover
damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, [unless he] prove[s]
that the conviction or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. 477, 486-87 (1994)
(footnote and citation omitted). In Edwards v. Balisok, another case involving constitutional
challenges to procedures related to good-time credits, the Court held the prisoner’s claims for
damages and declaratory relief were not cognizable in a civil rights action because success in the
action would “necessarily imply the invalidity of the deprivation of his good-time credits.” 520
U.S. 641, 646 (1997).
At the same time, the Supreme Court has permitted prisoners to proceed in civil rights
actions if their claims challenge the conditions of their confinement, but do not fall within the
core of habeas, or if success in their civil rights action would not necessarily imply the invalidity
of their confinement. See Skinner v. Switzer, 131 S. Ct. 1289, 1293, 1298-99 (2011) (procedural
due process claim based on denial of access to DNA evidence); Dotson, 544 U.S. at 81-82
(constitutional challenge to state procedures concerning eligibility for parole); Nelson v.
Campbell, 541 U.S. 637, 639-40 (2004) (constitutional challenge to method for executing death
sentence); Muhammad v. Close, 540 U.S. 749, 753 (2004) (per curiam) (retaliation claim based
on prison disciplinary action); Wolff v. McDonnell, 418 U.S. 539, 554 (1974) (constitutional
challenge to prison procedures seeking prospective injunctive relief).
How the Supreme Court’s jurisprudence in this area applies when a prisoner challenges
the conditions of parole, probation, or supervised release remains unsettled.3 Although the Third
Circuit has not addressed the issue, the Seventh Circuit has held such challenges must be made in
a habeas proceeding rather than a civil rights proceeding.
In Drollinger v. Milligan, a
probationer brought a civil rights action challenging several restrictions imposed as terms of her
probation, including restrictions preventing her from having a roommate, leaving the house at
Although the above-cited cases involved § 1983 actions, their reasoning has been applied
equally to Bivens claims. See, e.g., Lora-Pena v. FBI, 529 F.3d 503, 505 n.2 (3d Cir. 2008).
night, and visiting her ex-husband or his parents. 552 F.2d 1220, 1223 n.1 (7th Cir. 1977). The
Seventh Circuit observed the distinction between challenges to the fact or duration of
confinement (which are the province of habeas) and challenges to conditions of confinement
(which may be raised in a civil rights action) was difficult to apply in a case concerning
Because probation is by its nature less confining than incarceration, the distinction
between the fact of confinement and the conditions thereof is necessarily blurred.
The elimination or substitution, for example, of one of the conditions of
[plaintiff’s] probation would free her substantially from her confinement;
figuratively speaking, one of the “bars” would be removed from her cell.
Id. at 1225. Based on that observation, and the notion that the conditions of probation placed the
plaintiff in “custody” for purposes of the habeas statute, the Seventh Circuit concluded that the
plaintiff was required to proceed in habeas because “[t]he release from [her] custody, [i.e., the
probation conditions,] even if only partial, is the traditional function of the writ of habeas
Following Drollinger, the Seventh Circuit subsequently held in Williams v.
Wisconsin that a parolee’s claims for damages based on a parole agent’s refusal to allow him to
travel to the Philippines to marry a woman located there were not cognizable in a civil rights
action. 336 F.3d 576, 578 (7th Cir. 2003). The court again observed that the distinction between
challenges to the fact or duration of confinement and challenges to conditions of confinement
was difficult to apply in a case concerning parole conditions because, “[f]or parolees, . . . the
‘conditions’ of parole are the confinement.”4 Id. at 579.
The Seventh Circuit’s observation in this regard was acknowledged by the Third Circuit in Doe
v. Pennsylvania Board of Probation & Parole, 513 F.3d 95, 99 n.3 (3d Cir. 2008) (“[F]or
parolees and probationers, the question of whether a claim should be made under Section 1983 or
under federal habeas has been described as a more ‘metaphysical’ one, because the ‘conditions’
of parole are the confinement.”).
This Court initially followed the Seventh Circuit’s approach. However, as D’Amario
points out, the Ninth Circuit has since spoken on the issue in Thornton v. Brown, ---F.3d---, 2013
WL 7216368 (9th Cir. Feb. 18, 2014).5 Thornton concerned a civil rights action brought by a
parolee challenging two conditions of his parole: a residency restriction and a requirement that
he submit to electronic monitoring using a Global Positioning System device. The majority held
“a state parolee may challenge a condition of parole under § 1983 if his or her claim, if
successful, would neither result in speedier release from parole nor imply, either directly or
indirectly, the invalidity of the criminal judgments underlying that parole term.” Id. at *9.
According to the majority, the plaintiff’s challenges were cognizable in a civil rights action
because (1) in California, where the case originated, “a parolee’s status is legally and factually
distinct from his conditions of parole,” yet plaintiff did not challenge “his status as a parolee or
the duration of his parole”; (2) even if plaintiff were to succeed in his civil rights action, “nearly
all of his parole conditions will remain in effect”; and (3) the parole conditions at issue were
imposed by an administrative body, rather than as part of a court judgment. Id. at *7-9.
Judge Ikuta, who dissented, took a contrary view of the plaintiff’s claims, concluding that
the claims “if successful, would necessarily demonstrate that a portion of [plaintiff’s] underlying
sentence was invalid.” Id. at *9 (Ikuta, J. dissenting). The dissent observed that California law
requires the California Department of Corrections and Rehabilitation to provide the conditions of
parole to be served in connection with a given state sentence. As the plaintiff’s sentence was
required to include a term of parole, the dissent concluded a challenge to the discretionary
conditions set by the California Department of Corrections and Rehabilitation was, in fact, a
challenge to his sentence. The dissent responded to the majority by (1) rejecting the majority’s
Thornton issued on July 31, 2013. On February 18, 2014, in connection with a petition for
rehearing and rehearing en banc, the Ninth Circuit issued an amended opinion and dissent.
“ill-founded attempt to distinguish between the status of parole and its conditions,” on the basis
that “[a] person’s technical ‘status’ as a parolee has little or no meaning if all the [parole
conditions] have been removed”; (2) questioning the conclusion that the limited number of
conditions challenged rendered the plaintiff’s claims cognizable in a civil rights action because
the “focus on the number of challenged parole conditions is entirely arbitrary”; and (3) observing
“the Supreme Court has not indicated that it makes any difference under Heck whether an
agency, rather than a court, establishes the parole conditions that are imposed as part of a
sentence under state law, and the majority does not explain why this is significant.” Id. at *1113.
The Court is not persuaded by the majority opinion in Thornton. As noted above,
Supreme Court jurisprudence makes clear that “the essence of habeas corpus is an attack by a
person in custody upon the legality of that custody, and that the traditional function of the writ is
to secure release from illegal custody.” Preiser, 411 U.S. at 484; see also Skinner, 131 S. Ct. at
1299 (suggesting habeas is the appropriate remedy if plaintiff seeks to terminate his custody,
accelerate his release date, or reduce the level of his custody); Leamer v. Fauver, 288 F.3d 532,
541 (3d Cir. 2002) (observing the purpose of the habeas statute is to “to secure release from
illegal custody”). If, by virtue of being subject to conditions of parole, probation, or supervised
release, an individual is “in custody” for purposes of filing a habeas petition, it is logical that a
habeas proceeding is the proper vehicle for challenging that custody. See Jones v. Cunningham,
371 U.S. 236, 243 (1963). Otherwise, a parolee or individual on supervised release could secure
complete release from custody by challenging the constitutionality of all of his parole or
supervised release conditions pursuant to § 1983 or Bivens, and seeking invalidation of those
conditions. Additionally, the individual could secure damages based on a finding that he was
subject to unconstitutional custody as a result of unconstitutional parole or supervised release
The Thornton majority attempts to address this issue by noting the plaintiff in that case
only challenged two of several parole conditions. However, as the dissent accurately observes,
there is no logical principle for limiting the majority’s rule to allow a district court to determine
when a plaintiff’s civil rights challenge crosses into the core of habeas. See Thornton, 2013 WL
7216368, at *12 (Ikuta, J. dissenting). If, as the Seventh Circuit observed, conditions of parole,
probation, or supervised release are tantamount to confinement in this context, then it should not
matter how many conditions a plaintiff challenges because an attack on those conditions would
equate to an attack on the fact of his confinement. The distinction between the “status” of a
parolee and the “conditions” of parole drawn by the Thornton majority is equally elusive because
a person who has the status of parolee is necessarily subject to parole conditions—without the
conditions, a parolee’s status is no different from the “status” of an individual who is not on
Furthermore, it is difficult to understand how a constitutional challenge to one’s parole,
probation, or supervised release conditions in a civil rights action would not “necessarily imply
the invalidity” of a portion of the plaintiff’s sentence, even if probation officers were responsible
for executing the details of that sentence. Heck, 512 U.S. at 487. Indeed, the Third Circuit has
applied Heck to bar damages claims based on a parole board’s denial of parole without any
suggestion that the administrative nature of the decision precludes Heck’s applicability. See
Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006). Here, D’Amario’s criminal judgment
of sentence imposed a term of supervised release and contained several standard conditions of
supervised release, with the supervision to be carried out by the probation office. See United
States v. D’Amario, Crim. A. No. 06-112 (D.N.J.) (Document No. 214); see also 18 U.S.C.
§ 3601 (providing an individual placed on supervised release “shall, during the term imposed, be
supervised by a probation officer to the degree warranted by the conditions specified by the
sentencing court”). D’Amario’s challenge to the Probation Office’s execution of the supervised
release component his sentence seems no different than the types of challenges raised by
prisoners to the execution of their sentences based on administrative calculations or
administrative revocations of good time credits.
In any event, even if D’Amario’s claims were cognizable, the Court fails to understand
how two probation officers from the District of Rhode Island (or any other Defendant named in
this case) could have imposed conditions of supervised release on D’Amario when he was being
supervised by probation officers in the District of New Jersey. The transcripts attached to
D’Amario’s motion for reconsideration and his publicly available criminal docket reflect that
probation officers in the District of New Jersey were responsible for supervising D’Amario upon
his release from prison.
See United States v. D’Amario, Crim. A. No. 06-112 (D.N.J.)
(Document No. 497 at 2). As a result, the only apparent basis for D’Amario’s claims arising
from his supervised release conditions—apart from the transfer issue discussed above—is his
overarching conspiracy theory, which this Court rejected in its earlier opinion. Although a court
must generally accept the truth of a plaintiff’s allegations, it need not credit those allegations that
are clearly belied by public records or those that are clearly baseless. Cf. Ball v. Famiglio, 726
F.3d 448, 469-70 (3d Cir. 2013) (indicating that the credibility of a pro se plaintiff’s allegations
should be considered in “in the context of all of the facts of [the] case” and concluding that
plaintiff’s allegations were not credible based on information in the record). Accordingly, as an
alternative basis for dismissal, the Court concludes D’Amario’s claims against Weiner, Hopkins,
or any other Defendant based on their alleged imposition of unfair supervised release conditions
are factually frivolous because they are premised on allegations that are clearly baseless. See
Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[D]istrict courts, who are all too familiar with
factually frivolous claims, are in the best position to determine which cases [are clearly
baseless].” (internal citation and quotation marks omitted)).
For the foregoing reasons, D’Amario is not entitled to reconsideration of the Court’s prior
rulings. An appropriate order follows.
BY THE COURT:
/s/ Juan R. Sánchez
Juan R. Sánchez, J.
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