The opinion of the court was delivered by: JOYNER
Plaintiff instituted this 42 U.S.C. § 1983 action alleging that Defendants' parole procedures violated his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. On December 10, 1996, we entered an Order dismissing this action in its entirety with prejudice. On December 23, 1996, Plaintiff filed a Motion to Alter or Amend Judgment. This Motion, taken together with the supporting memorandum Plaintiff filed on January 22, 1997, seeks (1) reconsideration of our December 10 Order, (2) leave to amend the Complaint, and (3) the appointment of counsel. We address all three requests today.
Plaintiff alleges the following facts.
On November 14, 1994, Plaintiff was returned to SCIG for violating the curfew provisions of his parole. After a hearing, the Board recommitted Plaintiff for twelve months for the violation, setting reparole eligibility for on or after November 14, 1995.
On or about October 30, 1995, however, the Board notified Plaintiff that it was suspending the reparoling portion of this directive and was going to review Plaintiff's reparole eligibility status once again. This second reparole review process began in December, 1995 and was not completed until July, 1996 because Defendants intentionally delayed processing paperwork and completing other procedures necessary for reparole consideration. Further, certain unnamed officials deliberately sent false information to the Board so that Plaintiff would be denied parole. According to an exhibit attached to Plaintiff's Amended Complaint, at the conclusion of this second reparole review, the Board set no new reparole eligibility date, ordered Plaintiff to participate in various treatment programs, and set a review date of his reparole status for July, 1997.
Based on these alleged facts, Plaintiff filed the instant Complaint on August 12, 1996 claiming violations of his equal protection and due process rights and charging that the reparole procedures subjected him to double jeopardy and cruel and unusual punishment.
On October 9, 1996, Defendants moved to dismiss Plaintiff's Complaint in its entirety. As noted supra, we granted this motion on December 10, 1996, dismissing the action with prejudice. We turn now to the three requests before the Court.
I. Reconsideration of the December 10, 1996 Order
A motion for reconsideration pursuant to Rule 59(e) must rely on one of three major grounds: (1) an intervening change of controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error of law or prevent manifest injustice. North River Ins., Co. v. Cigna Reins Co., 52 F.3d 1194, 1218 (3d Cir. 1995)(citations omitted). The instant motion relies on the third ground. Plaintiff argues that in dismissing the entire action with prejudice we failed to give his complaint the liberal construction that is due pro se plaintiffs. Plaintiff moves that we reconsider Defendants' Motion to Dismiss under the proper standard.
A court should dismiss a claim pursuant to Rule 12(b)(6) for failure to state a cause of action only if it appears certain that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Granting such a motion determines the merits at an early stage of a plaintiff's case, therefore the court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that may be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Moreover, a pro se complaint must be liberally construed and held to a less stringent standard than formal pleadings. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). A pro se action "can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 106 (quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)).
We refuse to reconsider our dismissal of Plaintiff's double jeopardy and cruel and unusual punishment claims as these claims plainly lack merit.
As to the due process and equal protection claims, we grant reconsideration to address a new argument raised by Plaintiff with respect to the former and to re-examine the manner in which we applied the 12(b)(6) standard to the latter.
In his Complaint, Plaintiff alleges that Defendants unconstitutionally denied him the opportunity to be released on parole. He claims that he was denied "consideration of parole as is his right" and the "fair application of policies, processes and procedures ... as [they relate] to parole readiness." (Complaint, PP 28, 35.) He contends further that Defendants' failure to process his paperwork caused him to be "incarcerated well beyond his minimum period of recommitment." (Complaint, P 32.) We agreed with Defendants initially, and we continue to agree now, that these allegations must be construed to assert a liberty interest in parole and, to the extent that they do, this claim must be dismissed with prejudice. As we noted in our December 10 Order, a prisoner has no right to be released before the expiration of a valid sentence arising under either the Constitution itself or Pennsylvania law. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979); Commonwealth ex rel. Sparks v. Russell, 403 Pa. 320, 169 A.2d 884, 885 (Pa. 1961); Tubbs v. Board of Probation and Parole. 152 Pa. Commw. 627, 620 A.2d 584, 586 (Pa. Cmwlth.), app. denied, 536 Pa. 635, 637 A.2d 295 (Pa. 1993); Reider v. Board of Probation and Parole, 100 Pa. Commw. 333, 514 A.2d 967 (Pa. Cmwlth. 1986)(en banc). Thus, Plaintiff has no liberty interest or entitlement to parole that must be protected with procedural safeguards.
In his Motion to Reconsider, however, Plaintiff maintains that the Complaint must also be construed to allege a violation of Plaintiff's substantive due process rights. In essence, Plaintiff now argues that the allegedly arbitrary and capricious denial of parole constitutes a substantive due process violation separate and distinct from any procedural due process claim. Our Court of Appeals does appear to recognize such a cause of action. In Block v. Potter, 631 F.2d 233 (3d Cir. 1980), the court reasoned that "the touchstone of due process is protection of the individual ...