George v. PA Board of Probation and Parole
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 4/24/14. (km)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 3:CV-14-25
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
April 24, 2014
Kasine George, an inmate presently confined at the Rockview State
Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview) initiated this
pro se civil rights action pursuant to 42 U.S.C. § 1983. After being directed to do
so, Plaintiff submitted an in forma pauperis application. See Doc. 5.
Named as sole Defendant in the Complaint is the Pennsylvania Board of
Probation and Parole (Parole Board). Plaintiff seeks declaratory and injunctive
relief. The Complaint consists of the following seventeen (17) single sentence
That the Defendants violated his constitutional right, when
resubmitting same sentence on him again which is false and
That false or inaccurate information has caused Plaintiff to
be held longer than he should have been.
That deprivations were likely to recur.
That others are taking some action against person in
violation of his civil rights or have threatened to take any
action in the future.
That he will again be subjected to the alleged illegality.
That he had sustained or was immediately in danger of
sustaining some direct injury as result of the challenged
official conduct and the injury or threat of the injury was
required to be both real and immediate, not conjectural or
That Defendants acted under color of state law.
That he has suffered mental and emotional distress caused
by the conduct as result of action taken.
That defendant acted with actual knowledge.
A deprivation of a federally protected right, and that this
deprivation was committed by one acting under color of
Deprivation of the protection against double jeopardy.
Deprivation of liberty arising out of denial of procedural due
That he will suffer irreparable damages and that he has no
adequate remedy at law.
That extended detention was cause of his loss of liberty.
That defendants were directly and personally responsible for
purported unlawful conduct.
He is entitled to relief.
28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions
in federal court and wish to proceed in forma pauperis under 28 U.S.C. § 1915,
e.g., that the full filing fee ultimately must be paid (at least in a non-habeas suit)
(2) Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any time
if the court determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
When considering a complaint accompanied by a motion to proceed in
forma pauperis, a district court may rule that process should not be issued if the
complaint is malicious, presents an indisputably meritless legal theory, or is
predicated on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S.
319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
Indisputably meritless legal theories are those "in which either it is readily apparent
that the plaintiff's complaint lacks an arguable basis in law or that the defendants
are clearly entitled to immunity from suit ... ." Roman v. Jeffes, 904 F.2d 192, 194
(3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has added that
"the plain meaning of '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. 1995). It also has been determined that "the frivolousness determination is a
discretionary one," and trial courts "are in the best position" to determine when an
indigent litigant's complaint is appropriate for summary dismissal. Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
The vague claims set forth in the Complaint indicate that Plaintiff is
alleging that he was subject to either an unconstitutional denial of parole and/or
attacking the duration of his current Pennsylvania state incarceration.1
Inmates challenging the duration of their confinement or seeking earlier
or speedier release must assert such claims in a properly filed habeas corpus
petition. Preiser v. Rodriguez, 411 U.S. 475 (1975), Telford v. Hepting, 980 F.2d
745, 748 (3d Cir.), cert. denied 510 U.S. 920 (1993). Federal habeas corpus review
Due to the sparseness of the Complaint, the actual nature of George’s
pending claim is unclear. It is also unknown when or how the challenged conduct
is the appropriate remedy when “the deprivation of rights is such that it necessarily
impacts the fact or length of detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d
Cir. 2002). The Third Circuit in Woodall v. Federal Bureau of Prisons, 432 F.3d
235, 241 (3d Cir. 2005), reiterated that federal habeas corpus review allows a
prisoner “to challenge the ‘execution’ of his sentence.”
Likewise, a civil rights claim for declaratory relief “based on allegations
... that necessarily imply the invalidity of the punishment imposed, is not
cognizable” in a § 1983 civil rights action. Edwards v. Balisok, 520 U.S. 641, 646
(1997); Georgevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir. 1985) (civil rights
claims seeking release from confinement sound in habeas corpus). Pursuant to
Edwards, Plaintiff’s apparent request for injunctive relief which likewise implies
the invalidity of the denial of his parole application is also not properly raised in a
civil rights complaint. Accordingly, to the extent that George is seeking his release
from imprisonment or challenging the length of his confinement, such requests for
relief are not properly asserted in a civil rights complaint.
As previously noted, the sole Defendant listed in the Complaint is the
Pennsylvania Board of Probation and Parole. The Supreme Court of the United
States has recognized that a § 1983 action brought against a "State and its Board of
Corrections is barred by the Eleventh Amendment unless [the State] has consented
to the filing of such a suit." Alabama v. Pugh, 438 U.S. 781, 782 (1978). It has
been similarly concluded by the Third Circuit that Pennsylvania’s Board of
Probation and Parole could not be sued because “it is not a 'person' within the
meaning of Section 1983." Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977).
In Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), the United
States Supreme Court reiterated its position that state agencies such as the state
police are not "persons" subject to liability in § 1983 actions brought in federal
court. The Court noted that a § 1983 suit against a state official's office was "no
different from a suit against the State itself." Id. at 71. “Will establishes that the
State and arms of the State, which have traditionally enjoyed Eleventh Amendment
immunity, are not subject to suit under § 1983 in either federal or state court."
Howlett v. Rose, 496 U.S. 356, 365 (1990).
However, the United States Supreme Court in Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) announced that prisoners may challenge the constitutionality
of state parole proceedings in § 1983 actions seeking declaratory and injunctive
relief.2 The Court indicated that such actions could only be employed in cases
where success of the procedural challenges would not necessarily require
immediate or speedier release for the prisoner.
It is well-settled that "there is no constitutional or inherent right of a
convicted person to be conditionally released before the expiration of a valid
sentence." Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442
U.S. 1, 7 (1979). Moreover, the Pennsylvania parole statute does not create a liberty
interest in the right to be paroled. Rodgers v. Parole Agent SCi-Frackville, Wech, 916
F. Supp. 474, 476-77 (E.D. Pa. 1996); Thorpe v. Grillo, 80 Fed.Appx. 215, 2003 WL
22477890 (3d Cir. 2003)(because there is no constitutional right to parole, any
substantive due process claim is foreclosed).
In the present case, Plaintiff has filed a vague and sparsely worded
Complaint which does not set forth the nature of his claim. Since George does
contend that he is being held longer than he should have been (Doc. 1, ¶ 2), a
finding in his favor would apparently result in a finding that he is entitled to
immediate or speedier release. Thus, it does not appear that Plaintiff’s pending
action falls under Wilkinson.
Since Plaintiff’s vague allegations appear to challenge the duration of his
ongoing state imprisonment they are more appropriate for federal habeas corpus
review and not properly asserted in a civil rights action. If George wishes to attack
the fact or duration of his ongoing Pennsylvania state confinement, his appropriate
federal court remedy would be to seek federal habeas corpus relief. See Leamer,
288 F.3d at 540.
In the alternative, if George wants to pursue Wilkinson-type civil rights
claims, he may file a motion for reconsideration within fourteen (14) days of the
date of this Memorandum and Order. Any reconsideration motion should be
accompanied by a proposed amended complaint which clearly sets forth the factual
basis underlying his claims.
Since Plaintiff's pending civil rights complaint is "based on an
indisputably meritless legal theory" it will be dismissed, without prejudice, as
legally frivolous. Wilson, 878 F.2d at 774. An appropriate Order will enter.
BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge
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