WARREN v. PA BOARD OF PROBATION & PAROLE et al

Filing 6

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 8/17/16. 8/18/16 ENTERED AND COPIES MAILED TO PRO SE PLFF., 1 COPY TO LEGAL BIN. (pr, ) (Main Document 6 replaced on 8/18/2016) (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TERRY LAMONT WARREN

CIVIL ACTiflED

NJG 182016

v.
PA BOARD OF PROBATION & PAROLE, et al.:

NO. 16-2804

MEMORANDUM
AUGUST 17~

SLOMSKY, J.

I

2016

Plaintiff, an inmate, has filed a pro se civil rights
action against the Pennsylvania Board of Probation and Parole
("Board"), the Secretary of the Board, a supervisor and parole
agent at the Lancaster County Board of Probation and Parole and
an assistant public defender.
pauperis.

He seeks to proceed in forma

For the following reasons, the Court will grant

plaintiff leave to proceed in forma pauperis and dismiss his
complaint pursuant to 28 U.S.C.

I.

§

1915(e) (2) (B) (i).

FACTS
Plaintiff alleges that he received a technical parole

violation, which he appealed to the Board.
by the Board and Secretary Barkley.

His appeal was denied

In his prayer for relief, in

addition to money damages, he is asking this Court to review the
State's decision to revoke his parole, and to intervene in his
ongoing criminal case.

II.

STANDARD OF REVIEW
As plaintiff has satisfied the criteria set forth in 28

U.S.C.

§

1915, he is granted leave to proceed in forma pauperis.

Accordingly, 28 U.S.C. § 1915(e) (2) (B) applies.

That provision

requires the Court to dismiss the complaint if, among other

ENTERED
AUG 1 ~ 2016

CLERK OF COURT

things, it is frivolous.

A complaint is legally frivolous if it

is "based on an indisputably meritless legal theory."
United States, 67 F.3d 1080, 1085 (3d Cir. 1995).

Deutsch v.

As plaintiff

is proceeding pro se, the Court must construe his allegations
liberally.

Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.

2011).

III.

DISCUSSION

"[T]o recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a

§

1983 plaintiff must prove 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[.]"
U.S. 477, 486-87 (1994)

Heck v. Humphrey, 512

(footnote and citation omitted).

Nothing in the complaint suggests that the revocation of
plaintiff's parole has been reversed or otherwise invalidated.
As success on plaintiff claims would necessarily demonstrate the
invalidity of his not-yet-invalidated sentence, the claims are
not cognizable under

§

173, 177 (3d Cir. 2006)

1983.

See Williams v. Consovoy, 453 F.3d

(Heck barred claim challenging

constitutionality of parole revocation decision) .

Therefore,

plaintiff's claims against his parole agent, Andrew Johnson, will
be dismissed.

His claims against the supervisor at the Lancaster

County Board of Probation and Parole will also be dismissed

because plaintiff's complaint does not contain any reference to
this defendant, and there is no respondeat superior liability in
§

1983 cases.

Hampton v. Holmesburg Prison Officials, 546 F.2d

1077, 1082 (3d Cir. 1976).
Plaintiff's claims against the Board and Secretary
Barkley will be dismissed.

The Board is entitled to Eleventh

Amendment immunity and is not a person for purposes of 42 U.S.C.
§

1983.

See Will v. Mich. Dep't of State Police, 491 U.S. 58,

65-66 (1989)
to

§

(a state may not be sued in federal court pursuant

1983 and is not a "person" for purposes of that provision) ;

Goodman v. McVey, 428 F. App'x 125, 127 (3d Cir. 2011)
curiam)

(per

(claims against the Board were "prohibited by the

Eleventh Amendment").

Secretary Barkley is entitled to quasi-

judicial immunity from plaintiff's claims because they are based
on acts she performed in connection with her adjudicatory duties
as Board Secretary.
(3d Cir. 1986)

See Harper v. Jeffries, 808 F.2d 281, 284

("No doubt can be entertained that probation

officers and Pennsylvania Parole Board members are entitled to
quasi-judicial immunity when engaged in adjudicatory duties."
(quotations omitted)).
A defense attorney, whether court-appointed or
privately retained, represents only his client, and not the
state, and cannot be sued under
454 U.S. 312 (1981).

§

1983.

Polk County v. Dodson,

Therefore, plaintiff's claims against Mary

Jean Glick, Esq. will be dismissed.
Finally, plaintiff is requesting that this court

intervene in his pending state case.

This Court, in deference to

the principles of comity and federalism, will not interfere in
the state criminal process absent a showing of irreparable
injury, a flagrant and patent violation of an express
constitutional prohibition, or other extraordinary circumstances
warranting equitable relief.
54

(1971).

Younger v. Harris, 401 U.S. 37, 53-

None of the facts alleged by plaintiff meet these

threshold requirements.
A district court should generally provide a pro se
plaintiff with leave to amend unless amendment would be
inequitable or futile.

See Grayson v. Mayyiew State Hosp., 293

F.3d 103, 114 (3d Cir. 2002).

Here, amendment would be futile

because plaintiff cannot cure the above deficiencies in his
complaint. Accordingly, plaintiff will not be permitted to file
an amended complaint.

IV.

CONCLUSION

For the foregoing reasons, plaintiff's complaint is
dismissed.

An appropriate order follows.