Christian v. Johnson et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed, Plaintiff's Complaint is dismissed with prejudice. Plaintiff's application to proceed in forma pauperis (Doc. 8) is approved for this filing only. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 6/8/15. (cc)

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JULIO CHRISTIAN ,
:C I VIL ACTION NO. 3 : 15-CV- 284
Plaintiff,
(JUDGE CONABOY)

v.

FILED
SCRANTON

"INDIVIDUAL PAROLE OFFICERS"
at Board of Probation and Parole ,
in Harrisburg ,

JU 08 2015
N

Defendants.

peR
MEMORANDUM

I. Background

Here we consider for initial screening the pro se complaint
filed by Plaintiff Julio Christian on February 10, 2015 , pursuant
to 42 U.S . C. § 1983.

(Doc . 1 . )

His Complaint contains sixty-four

numbered paragraphs alluding t o wrongdoing related to the
revocati on of parole , threats of potential continued detention
based on allegedly false information, and other vague allegations
of retaliation for exercising constitutional rights .
6. )

(Doc . 1 at 1­

Plaintiff see ks the following relief: "declaratory and

injunctive relief"; " recovery in compensatory damages"; "seek to
enjoin parole proceeding criminal prosecution"; and "seek
constitutional liberty . "

(Doc . 1 at 6.)

He clarifies that he is

suing Defendants in their individual capacities.

(Id . )

Though not

named in the caption , Plaintiff filed this action against
individual Defendants Cindy S . Johns o n , James Ellis , Michael Green ,
Charles Demarko Spriggs , and Diana Kalback .

(See

Docke t . )

Plaintiff identifies Defendant Johnson as a parole officer and
Defendant Kolback as a parole agent.

(Doc. 1

~~

39, 51.)

He says

that Defendants Ellis, Green, Demarko Spriggs, and Kolback
conducted "a criminal proceeding" against him on February 27,
and that they "acted to prosecute him at SCI-Graterford."
1

~

2007,
(Doc.

50.)

II. Discussion
Screening

or

Pro Se Complaint Standard

Plaintiff--an inmate currently confined at SCI-Rockview,
Bellafonte, Pennsylvania--requests to proceed In forma pauperis.
(See

Doc. 8.)

Pursuant to 28 U.S.C.

§

1915A, we are directed to

screen a complaint as soon as practicable after filing when a
prisoner seeks redress from a government entity or officer or an
employee of a government entity.

28 U.S.C.

§

1915A(a).

We are

directed to dismiss the complaint or portions thereof if the
complaint "(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from
a defendant who is immune from such relief."

28 U.S.C.

§

1915A(b)

Similarly, when a plaintiff proceeds in forma pauperis, we are to
dismiss the case at any time if we determine that the action meets
the criteria set out above.

28 U.S.C.

§

1915 (e) (2) (B).

This

subsection "is designed largely to discourage the filing of, and
waste of judicial and private resources upon, baseless lawsuits
that paying litigants generally do not initiate because of the

2

costs of bringing suit and because of the threat of sanctions for
bringing vexatious suits under Federal Rule of Civil Procedure 11."
Neitzke v. Williams,

490

u.s.

319, 327

(1989).

Neitzke further

explains:
To this end, the statute accords judges not
only the authority to dismiss a claim based
on an indisputably meritless legal theory,
but also the unusual power to pierce the veil
of the complaint's factual allegations and
dismiss those claims whose factual
contentions are clearly baseless.
Examples
of the former class are claims against which
it is clear that the defendants are immune
from suit.
. and claims of infringement of
a legal interest which clearly does not exist
Examples of the latter class are
claims describing fantastic or delusional
scenarios.
Id. at 327-28.

The United States Court of Appeals for the Third

Circuit has added that "the plain meaning of the term 'frivolous'
authorizes the dismissal of in forma pauperis claims that .

. are

of little or no weight, value, or importance, not worthy of serious
consideration, or trivial."

Deutsch v. United States,

67 F.3d

1080, 1083 (3d Cir. 1985).
The standard for failing to state a claim under
1915 (e) (2) (B) (ii) and

§

1915A(b) (1)

is the same as that under

Federal Rule of Civil Procedure 12 (b) (6) .
229 F.3d 220, 223 (3d Cir. 2000).

§

See Allah v.

Seiverling,

In short, to survive a Rule

12(b) (6) motion, "a complaint must contain sufficient material,
accepted as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v.

Iqbal,

556 U. S. 662,
3

678

(2009)

(quoting

Bell Atlantic Corp. v.

Twombly,

550 u.s. 544, 570 (2008)).

Screening

As noted above Plaintiff's Complaint contains sixty-four
numbered paragraphs alluding to wrongdoing related to the
revocation of parole, threats of potential continued detention
based on allegedly false information, and other vague allegations
of retaliation for exercising constitutional rights.
6.)

(Doc. 1 at 1­

We emphasize the vagueness of these allegations in proceeding

with our analysis and discussing the bases upon which we conclude
this action is properly dismissed.
1.

Federal Rule of Civil Procedure 8

Plaintiff's Complaint apprises Defendants that they are being
sued pursuant to 42 U.S.C.

1983, that they are being sued in

§

their individual capacities and that Plaintiff is seeking the
following relief: "declaratory and injunctive relief"; "recovery in
compensatory damages"; "seek to enjoin parole proceeding criminal
prosecution"; and "seek constitutional liberty."

(Doc. 1 at 1, 6.)

Long on conclusions and sparse on facts, we glean the following
substantive allegations from the vague assertions presented:
Plaintiff's parole was revoked in 2005 (see,

e.g.,

Doc. 1

~~

5-6);

he believes the revocation was improper and based on an allegedly

false report (id.); a case related to his revocation was "nolle
prossed" (see,

e.g.,

Doc. 1

~

7); a parole officer threatened to

use an allegedly false report against him in the future to detain

4

him (see,

e.g., Doc. 1

~

2); Defendant Johnson (a parole officer)

played a part in the revocation, a proceeding in October 2006, and
other matters including transferring Plaintiff to another
institution (Doc. 1

~~

38-40); and Defendants Ellis, Green,

Demarko

Spriggs, and Kalback "conducted a criminal proceeding against him
and acted to prosecute him at SCI-

on February 22, 2007,
Graterford" (Doc. 1

~

50).

Plaintiff has previously been apprised of Rule 8's
requirements, including the fact that "[d]ismissal under Rule 8 is
. proper when a complaint 'left the defendants having to guess
what of the many things discussed constituted [a cause of
action] .'"

Christian v. State, Civ. A. No.

filed June 24, 2014)
438 F. App'x 158

4:14-CV-00857

(quoting Binsack v. Lackawanna County Prison,

(3d Cir. 2011)).

As in cases deemed subject to

dismissal where the "true substance, if any,
id.

(M.D. Pa.

is well disguised,"

(citing Simmons v. Apruzzo, 49 F.3d 83, 86 (2d Cir. 1995);

Tillio v. Spiess,
Northland Grp.

441 F. App'x 109, 110 (3d Cir. 2011):

Inc.,

Tillio v.

456 F. App'x 78, 79 (3d Cir. 2012)),

Plaintiff's complaint is subject to dismissal based on his failure
to comply with Rule 8's requirement that he provide a "short and
plain statement of the claim" showing that he is entitled to
relief,

Fed. R. Civ. P. 8 (a) (2) .

We will delay our discussion of whether Plaintiff is entitled
to be given leave to amend his complaint.

5

While district courts

should allow leave to amend prior to dismissal unless amendment
would be futile,
103, 108

see Grayson v. Mayview State Hospital,

293 F.3d

(3d Cir. 2002), at this stage of our analysis we cannot

properly assess the futility of amendment.
2.

Statute of Limitations

We now turn to a review the timeliness of Plaintiff's filing.
This review reveals that certain matters about which Plaintiff
complains are too remote in time to form an adequate basis for this
action.
Claims brought pursuant to 42 U.S.C.

§

1983 are subject to the

pertinent state's statute of limitations for personal injury
actions.

471 U.S. 261, 266-67

Wilson v. Garcia,

v. City of Newark,

(1985); O'Connor

440 F.3d 125, 126 (3d Cir. 2006).

Pennsylvania's statute of limitations for personal injury actions
42 Pa. C.S.

is two years.

§

5524.

"[T]he limitations period

begins to run from the time when the plaintiff knows or has reason
to know of the injury which is the basis of the section 1983
action."

Genty v. Resolution Trust Corp.,

Cir. 1991).

937 F.2d 899,

919 (3d

"'[D]iscrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely
filed charges.'"

Mandel v. M & Q Packaging Corp.,

165 (3d Cir. 157)

(quoting Nat'l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 113

(2002));

129, 135-36

(3d Cir. 2014)

&

n.7

see also Cibula v.

FOx,

(not precedential)
6

706 F.3d 157,

570 F. App'x
(applying

andel to prisoner 42 U.S.C.

§

1983 action).

ly an affirmative defense, statute of

Whi
limitations cons

rations may be raised in a screening review, as
rd Circuit Court of Appeals in Smith v.

explained by

Court, 260 F. App'x 454, 455

Delaware Coun

(3d Cir. 2008).

though we have not addressed the issue
a precedential decision, other courts have
although the statute of limitations
is an affirmative defense, a district court
may sua sponte dismiss a complaint under §
1915(e) where the defense is obvious from the
aint
no development of the factual
is required.
See Fogle v. Pierson,
435 F.
1252, 1258 (10 th Cir. 2006); see
also
1
Co. S.A. v. Johnson, 440 F.3d
648, 656-57 (4 th Cir. 2006) (citation
tt
) (fi
ng that a district court's
screening authority under § 1915(e)
"dif rent
es in forma pauperis suits from
nary civil suits and justifies an
ion to the general rule that a statute
ations defense should not be raised
and considered sua sponte.").
260 F. App'x at 455.
Court t

Distr

of the

, thus, the plaintiff's claims were

nt

as unt

intiff's complaint was untimely filed
at ions defense was evident from the

and that a 1
comp

In Smith, the Circuit Court agreed with the

rly dismissed

ly.

Here we can determine from the face of the Compla
legations relating to reports iss

Plaintiff's

that

in 2005 (see,

e.g., Doc. 1

~

5), proceedings against him in October 2006 (see,

e.g., Doc. 1

~

50), and threats made regarding his

7

ion in

October 2006 (see, e.g., Doc. 1
statute of limitations.

52), are barred by the applicable

~

Similarly, vague allegations regarding

improper revocation of parole (see, e.g.,

Doc. 1

~

barred as Plaintiff's parole was revoked in 2005. 1

42) are timeThe nature of

the claims indicates that Plaintiff knew about them long before the
limitations period ran.
Plaintiff alleges "[a] continuing deprivation of rights" and
"repeated actions in wrongdoing were likely to recur in the
future."

(Doc. 1

~~

21, 22.)

Although the continuing violation

theory may apply in such a situation, Plaintiff cannot avoid the
application of the statute of limitations with the conclusory
assertions contained in his complaint.
Under the continuing violation doctrine, "'when a defendant's
conduct is part of a continuing practice, an action is timely so
long as the last act evidencing the continuing practice falls
within the limitations period.'"

Montanez v.

Pennsylvnaia Dep't of Corrections,

Secretary

773 F.3d 472, 481

(quoting Cowell v. Palmer Twp., 263 F.3d 286, 292
see also Cibula v. Fox,

(3d Cir. 2014)

(3d Cir. 2001));

570 F. App'x 129, 135 (3d Cir. 2014)

(not

We also note that Plaintiff's assertions regarding improper
parole revocation, if timely, would be subject to the doctrine of
Heck v. Humphrey, 512 U.S. 477 (1994).
See McKinney v.
Pennsylvania Board of Probation and Parole, 405 F. App'x 646, 647
(3d Cir. 2010) (not precedential) (citing Williams v. Consovoy, 453

F.3d 173, 177 (3d Cir. 2006) (holding that where success in a §
1983 action would imply the invalidity of a decision to revoke
arole that has not been otherwise rendered invalid, the action is
Heck-barred) . )
8

1).

As explained in Cowell, t

continuing violation

is an equitable exception to

doctr

requirement.

263 F.3d at 292.

ly filing

t

Cibula set out the relevant

inquiry: "To determine whether a practice was continual, we
r

cons

(1) whether the violations are

rt of the same subject

occur

and (2) whether the viol at

at 165 67).2

pp'x at 135 (citing Mandel, 706 F.
ust also point to an affirmative act
tations period for the doct
135 (citations omitted).

in the nature of isolated incidents."

olation."

Id.

The

Id.

ed reports, proceedings

, and threats made were all discrete acts with different

subject matter.

Id.

is a thread that may connect

Though paro

some allegations contained in the Comp

status

570 F. App'x

acts are recurring or more

Here the revocation of parole, falsi

certa

Cibula,

same type of discrimination,

frequency inquiry concerns "whether t

t h

A plaintiff

The subject matter inquiry concerns

to connect them in a continui

aga

570 F.

t took place within the

to apply.

violations constitute t

r

frequently."

, the mere fact that

individual incidents might affect a plaintiff's parole
s not satisfy the subject matter and frequency

Cibula explains that Cowell
included a third factor in
the inquiry--whether the violations had a degree of permanence that
wou
have triggered the plaintiff's awareness of the duty to
assert his or her rights--but, in Mandel, 706 F.3d at 165-67, the
Ci
t Court limited Cowell's test for
rmining whether there
was a continuing violation pursuant to National Railroad Passenger
v. Morgan, 536 U.S. 101 (2002).
570 F. App'x at 135 n.7.

9

rements.

Further, Plaintiff does not point to an act which

within the limitations period.

Thus, allegations related

e revocation, falsified reports, proceedings
t

inst h

s related to his cooperation cannot be considered under

continuing violation doctrine.

In this rambling Comp

, it

s that almost all, if not all, of the factual allegations
However, we will briefly address

r

ic assertions contained in the complaint.

3.

Unlawful Detention
To the extent Plaintiff claims he should be free from unlaw
ion (see,

e.g., Doc. 1

~~

9, 22), his claims are not properly

this civil rights action.
inst

As he has previously been

, "prisoners challenging the duration of their

confinement or seeking earlier or speedier release must assert such
claims in a properly filed habeas corpus action."

Christian v.

vania Bd. of Probation and Parole, Civ. A. No. 3:13-CV-2432,
2014 WL 131634, at *2

(M.D. Pa. Jan. 13, 2014)

Rodriguez, 411 U.S. 475
748

4.

(citing

(1975); Telford v. Hepting,

ser v.

980 F.2d 745,

(3d Cir. 1993)).

Parole Proceedings
To the extent Plaintiff's conclusory averment concerning

"denial of due process where he had a protected liberty interest
created by state" (Doc. 1
e.g., Doc. 1

~

~

8) and other vague assertions (see,

40), may concern activities within the limitations

10

eriod related to parole (and not the 2005 revocation of parole),
relief.

Plaintiff does not state a claim

A plaintiff's "claim regarding his

ation

parole

fails because the Due Process Clause does not

ish a

protected liberty interest in the expectation of
parole."

se on

Alford v. Laguise, No. 14 3350, ---F.

1260141, at *2 (3d Cir. Mar. 19, 2015)
the district court properly dismissed a

'x-­

(not
§

, 2015 WL

ial)

1983

(finding

e

iff's

claim that in addition to the direct sentence issued at his
discplinary hearing he suffered the loss of his privil
reparole)

(citing Swarthout v. Cooke, 562 U.S. 216, 220

of
(2011)).

Alford adds that "Pennsylvania does not recognize 'a protect

liberty interest, or due process rights, in paro
is actually released on parole.'"
of Prob.

& Parole,

Id.

995 A.2d 412, 418

until

inmate

(quoting Nei ves v. Pa.

(Pa. Commw. Ct. 2010); citing

Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996)).

Furthermore, although Plaintiff mentions potential
action or harm (see,

e.g., Doc. 1

~~

1, 11, 24), an un

hypothetical future injury cannot support this

§

ed

1983 act

In

the parole context, hypothetical future injury has

to

too speculative to qualify for the exception to the mootness
octrine.

See, e.g., McLaurin v. Larkins, 199 F. App'x 193, 1995

(3d Cir. 2006)

(not precedential).

Here Plaintiff ma

allegation that he has applied for and been denied

11

no
e since the

2005 revocation and he has not named parties associated with
reviewing parole applications.

Thus, there is no possible

application of the "capable-of-repetition doctrine" which applies
"'only in exceptional circumstances, and generally only where the
named plaintiff can make a reasonable showing that he will again be
subjected to the alleged illegality.'"

Angeles v. Lyons,
5.

u.s.

461

Id.

(quoting City of Los

95, 109 (1983)).

Other Allegations
To the extent other vague assertions found in the complaint

ay have occurred within the limitations period, we briefly review
them here.
Plaintiff mentions his right to protection against selfincrimination.

u.s.

(See,

e.g., Doc. 1

~

17.)

In McKune v. Lile, 536

24(2002), the Court considered an inmate's claim that adverse

consequences were faced by a state prisoner for refusing to make
admissions required for participation in a sexual abuse treatment
program and the Court concluded that the consequences were not so
severe as to amount to compelled self-incrimination.

In so doing,

the Court reviewed similar prisoner claims, including Minnesota v.

urphy,

465 U.S.

420

(1984), where the Court found no self­

incrimination problem despite the criminal defendant's fear of

eing returned to prison for sixteen months if he remained silent.

Id. at 42-43.

The vague circumstances presented here do not

warrant a different conclusion.

12

In addition to his right against self-incrimination, Plaintiff
generally identifies the constitution and laws of the United States
as well as denial of due process "where he had a protected liberty
interest created by state" as bases for the violations asserted.
(See,

e.g., Doc. 1 'll'll 8, 10, 12.)

Plaintiff does not identify the

source of the asserted state-created liberty interest.
"A protected liberty interest may arise from only one of two
sources: the Due Process Clause or the laws of a state."
v. Dep't of Corrections, 186 F.3d 407,

Asquith

409 (3d Cir. 1999)

Generally, prisoners under confinement do not
have inherent liberty interests in particular
modes, places, or features of confinement.
See Hewitt v. Helms, 459 U.S. 460, 466-68,
103 S. Ct. 864, 74 L. Ed. 2d 675 (1983),
abrogated by Sandin v. Conner, 515 U.S. 472,
483, 115 S. Ct. 2293, 132 L. Ed. 2d 418
(1995).
The Supreme Court has consistently
held that "[a]s long as the conditions or
degree of confinement to which the prisoner
is subjected is within the sentence imposed
upon him and is not otherwise violative of
the Constitution, the Due Process Clause does
not itself subject an inmate's treatment by
prison authorities to judicial oversight."
Id. at 468, 103 S. Ct. 864; see also Asquith,
186 F.3d at 410.
Bacon v. Miner, 229 F. App'x 96,

precedential) .

98

(3d Cir. 2007)

(not

Regarding a liberty interest created by the laws or

regulations of a state, Bacon adds that "an examination of a state
statute or regulation should not be conducted unless the challenged
restraint on freedom 'imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.'"

13

(quoting Allah, 229 F.3d at 223; citing Smith v.

229 F. App'x at 98

ensinger, 293 F.3d 641,
determining what is

652

(3d Cir. 2002)).

'"

[T] he baseline for

'atypical and significant-the 'ordinary

incidents of prison life'- is ascertained by what a sentenced
inmate may reasonably expect to encounter as a result of his or her

Asquith,

conviction in accordance with due process of law.'"
F.3d at 412
Cir.

(quoting Griffin v.

Vaughn,

112 F.3d 703,

186

706 & n.2

(3d

1997)).
Here Plaintiff's assertions include unadorned statements that

Defendant Johnson prevented him from receiving institutional
support, demanded a specific group requirement and "thereafter"
(Doc.

transferred him to another institution.

1

'.IT

40.)

Regarding institutional placement, a state prisoner does not
have a protected liberty interest in prison transfers or in
remaining in a preferred facility within a state's prison system.

Asquith, 186 F.3d at 410
242

(1976); Meachum v.

cKeither v.

Folino,

precedential)

(citing Montanye v. Haymes,

Fano,

427 U.S. 215,

540 F. App'x 76,

78

(citing Olim v. Wakinekona,

Griffin v. Vaughn,

112 F.3d 703,

709 n.3

224-25

427 U.S. 236,

(1976));

(3d Cir. 2013)
461 U.S. 238,
(3d Cir.

see also

(not
245

(1983);

1997)).

Similarly, considered within the legal framework set out
above,

Plaintiff's claims that Defendant Johnson prevented him from

getting institutional support and demanded a specific group
requirement

(Doc.

1

'.IT

40)

do not implicate the violation of

14

constitutional rights under the circumstances presented here.

3

Whatever the state source of rights alluded to by Plaintiff,
there is no indication that Plaintiff faces an "atypical and
significant hardship .
prison life."

. in relation to the ordinary incidents of

Allah, 229 F.3d at 223.

Considering the baseline

for what is considered "atypical and significant"--that is, "what a
sentenced inmate may reasonably expect to encounter as a result of
his or her conviction," Asquith, 186 F.3d at 412--participation in
institutional programs and failure to gain the support of facility
authorities cannot be considered atypical.
Finally, to the extent Plaintiff attempts to make out a claim
for retaliation, stating for example that Defendant Johnson
"repetitiously punished him for exercising his free speech"
~

40), he has failed to do so.

Retaliation against a prisoner for

exercise of his constitutional rights is unconstitutional.
v. Horn, 241 F.3d 330, 333-34

(Doc. 1

(3d Cir. 2001).

Rauser

"Section 1983

imposes liability for retaliatory conduct by prison officials if
the conduct was motivated 'in substantial part by a desire to
punish [the] individual for the exercise of a constitutional
right.'"

Crosby v. Piazza,

(not precedential)

465 F. App'x 168, 173 (3d Cir. 2012)

(quoting Allah v. Seiverling, 229 F.3d 220, 224

3
In some narrow circumstances not applicable here, a
requirement that an inmate participate in an institutional program
ay give rise to a constitutional violation.
See, e.g., Renchenski
v. Williams, 622 F.3d 315 (3d Cir. 2010)

15

r. 2000); citing Mitchell v. Horn,

(3d

lhouse v. Carlson, 6

2003) ;

318 F.3d 523, 530

F.2d 371, 373

(3d Cir.

(3d Cir. 1981)).

To prevail on a section 1983 retaliation
claim, the prisoner must prove: (1) that the
conduct leading to
alleged retaliation
was constitutionally protected; (2) that he
suffered an adverse action sufficient to
deter a person of
firmness from
exercising his constitutional rights; and (3)
that his protected conduct was a substantial
or motivating factor
the decision to
discipline him.

Crosby,

Rauser, 241 F.3d at 333).

F. App'x at 173 (cit

4

If a

prisoner makes the requisite showing, "prison officials may still
made the same decision

prevail by proving that they would

absent the protected conduct for reasons reasonably related to a
e penological interest."

legit

intiff's Complaint, we do not know what conduct 1

From

retaliation, and the

the all

substant

to

ss of the actions as

(program assignment, institutional support, trans

to be
to

Rauser, 241 F.3d at 334.

r

r institution) prevents assessment of the deterrence
l/motivating factor elements.

pleading standard,
retaliation.

Thus, even under a l l

Plaintiff has not stated a plausible claim

r

4

Retaliation claims bas
on a prisoners's assertion
t,
as a re
of filing a complaint,
was required to attend
addit
1 treatment programs which would impede his ability to
seek parole may give rise to a reta1
ion claim where a p
iff
shows with specificity the impact
his enrollment in the
rograms has on his ability to seek parole.
See Crosby, 465 F.
pp'x at 173 74.
16

We also note t

Plaintiff's retaliation claims present

statute of limitations concerns.

Though undated, the wrongs

asserted are framed sequentially, the last of which is trans
(Doc. 1

another institution.
li

c filing reco

40.)

~

to

Because of Plaintiff's

,we can ascertain from the dockets of his
has been housed at his current place of

various cases that

confinement, SCI-Rockview, since June 2011.
Parole Board, 3:11 CV-882 (change of

Christian v. Pa.

ss to SCI-Rockview M.D.

filed Pa. June 6, 2011 (Doc. 10)); see also Christian v. Pa. Board

e, 3:13-CV-2432;

Probation and Pa
Pa.,

3:14-CV-79;

stian v. Commonwealth of

stian v. Commonwealth of Pa., 3:14-CV-2213.

Plaintiff was confined at SCI-Smithfield when he filed Christian v.
Pa. Parole Board on May 10, 2011 (3:11-CV-882
10, 2011

(M.D. Pa. fil

May

(Doc. 1 at 22)), and earlier filings show that he was
when he filed

housed at SCI-Smi

stian v. Pa. Parole

Board, 3:09-CV-2289, on November 20, 2009, Christian v. Abraham,
4:10-CV-00005, on January 4, 2010, and
Exchange Commission,

stian v. Securities and

1:10-CV-478, on March 3, 2010.

stive list of Pla

Though not an

iff's filings in this Court, it suffices

support a presumption that the retaliatory transfer referenced
his current filing (Doc. 1

~

40) occurred in 2011.

relevant statute of limitations
related cla

of retaliation wou

statute of limitations grounds.
asserts that the trans

Similarly,

As this is

scussed above,
be barred on
cause Plaintiff

llowed improper program assignments and
17

institutional support issues (Doc. 1

~

40), retaliation based on

program assignments and institutional support would also be
barred.
6.

5

Leave to Amend

As previously noted, a dist

ct court should allow leave to

amend prior to dismissal unless amendment would be futile.

Grayson

v. Mayview state Hospital, 293 F.3d 103, 108 (3d Cir. 2002).

Based

on the analysis set out above, amendment would be futile because
the identified shortcomings of Plaintiff's filing cannot be
overcome by amendment: the statute of limitations bars many claims
we have inferentially culled from the Complaint and others are
roperly raised in a habeas action or unarguably lack a legal basis
in law or fact.6
III. Conclusion

For t

reasons discussed, Plaintiff's Complaint is dismissed

with prejudice.
paupe

s

Plaintiff's application to proceed

(Doc. 8) is approved for this filing only.

forma
An appropriate

5
While not technically apparent from the face of the
Complaint, we take judicial notice of Court documents in this
analysis and no development of the factual record is required,
Smith, 260 F. App'x at 455.

see

6
If Plaintiff can show that a wrongdoing alleged occurred
within the limitations period, he may
Ie a motion for
reconsideration in accordance with the Local Rules of Court of the
iddle District of Pennsylvan
Upon such a showing, the Court
would consider allowing Plaintiff to
Ie an amended complaint.

18

Order is filed simultaneously with this action.

R

United States District J
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19