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RODGERS v. WECH

February 26, 1996

Floyd Preston Rodgers
v.
Wech, Parole Agent SCI Frackville, James Riggs, Penna Parole Bd. Secretary; Martin Walsh, Parole Agent Hearing Examiner



The opinion of the court was delivered by: BRODY

 Brody, J.

 February 26, 1996

 Before me for disposition is the "Motion of all Defendants to Dismiss", filed pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1). For the following reasons, I will grant defendants' motion.

 I. BACKGROUND

 Pro se plaintiff Floyd Preston Rodgers has brought this § 1983 action *fn1" against several officials of the Pennsylvania Board of Probation and Parole ("PBPP"), alleging that his constitutional rights were infringed upon. Plaintiff brings this action on two separate grounds. First, plaintiff alleges that his due process rights were infringed upon in April 1995, when a parole hearing examiner orally promised that he would be paroled, but the PBPP subsequently issued a document in August 1995 that denied him this parole. Secondly, plaintiff alleges that the document issued by the PBPP did not inform him of his right to appeal the denial of parole, thus further infringing on his constitutional rights. *fn2" See Complaint § IV.

 In his complaint, plaintiff alleges various harms, namely "physical and mental stress, hurt, pain. . . to his mind and body as well as mental anguish and emotional duress". Id., at § IV, P1. Plaintiff demands, from each defendant, $ 100,000 compensatory damages, $ 100,000 punitive damages, $ 200,000 prospective damages for future retaliatory harassment, and equitable relief (namely the establishment of an appeals system for denial of parole). Id at § V.

 II. MOTION TO DISMISS PURSUANT TO F.R.C.P 12(b)(6)

 Defendants move to dismiss the complaint on 12(b)(6) grounds. Rule 12(b)(6) permits the court to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering such a motion, the court must accept as true all allegations in the complaint and all reasonable inferences that may be drawn therefrom, viewed in the light most favorable to the plaintiff. *fn3" See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). In order to survive a 12(b)(6) motion, the plaintiff must provide enough evidence to support his claim, but does not need to demonstrate that he will ultimately prevail on the merits. See Hishon v. King and Spauldin g, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). A claim may only be dismissed on 12(b)(6) grounds if the plaintiff cannot demonstrate any set of facts in support of the claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 A. Standard for § 1983 Claim

 Section 1983 states, "Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress". 42 U.S.C. § 1983. In order to bring a successful § 1983 claim, plaintiff must demonstrate that (1) the act was performed by a person acting under color of state law and (2) the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Carter v. City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). It is the second requirement that is in dispute here.

 B. Oral Promise to Grant Parole

 Plaintiff argues that his constitutional rights were infringed upon by the hearing examiner's promise to grant parole (which created "an expectation") and ...


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