The opinion of the court was delivered by: Chief Judge Vanaskie
State prisoner Lonnie Webber proceeds pro se and in forma pauperis in this civil rights action. Webber claims that the Pennsylvania Board of Probation and Parole ("the Board") inappropriately denied him parole because of his alleged disability attributable to drug addiction, in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, and Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794(a). Instead of granting Webber's request for parole to a community-based therapeutic program specializing in the treatment of his psychoneurotic disorder, the Board directed his re-commitment and participation in a residential substance abuse treatment program ("RSAT"). As relief, Webber seeks a declaratory judgment that the ADA and RA apply to the "substantive decision-making process of defendants . . .," as well as a finding that the Board has violated the ADA and RA by its alleged policy and practice of incarcerating qualified individuals with a disability by reason of their drug addiction disability. Webber also asks for injunctive relief, mandating an individualized assessment for parole that does not penalize him for his disability.*fn1 (Dkt. Entry 1.) Finally, he request compensatory damages.
Defendants (the Board and former Acting Chairman Martinez) have moved for summary judgment premised on Webber's inability to show that he was denied parole on the basis of his disability. Alternatively, Defendants contend that this action is barred by the doctrine of res judicata. (Dkt. Entry 52.) Webber has filed a "Counter Statement to Defendant's Statements of Undisputed Material Facts and Superior Counterclaim Federal Rules Civil Procedure, Fed. R. Civ. P. 60(b)(4)." (Dkt Entry 53.) Having carefully considered the matter, I find that no reasonable jury could find that Webber suffered an adverse parole action "because of" his alleged disability. Accordingly, Defendants' motion for summary judgment will be granted.*fn2
II. Statement of Relevant Facts
Webber is a United States Marine veteran who survived the October 23, 1983, terrorist bombing of his Marine Amphibious Group's barracks in Beirut, Lebanon. Plaintiff alleges that he has a service connected disability for a psychoneurotic disorder. He contends that, as a "coping mechanism," he turned to illicit drugs.
In 1991 Webber was convicted of two counts of delivery of a controlled substance, and one count of conspiracy to deliver a controlled substance in relation to his own cocaine addiction. He received a sentence of 4 to 25 1/2 years imprisonment. He was paroled in 2000 to an outpatient drug and alcohol abuse treatment program, which he successfully completed. Webber has allegedly remained drug free since.
In 2003 Webber was re-incarcerated as a technical parole violator ("TPV") for traveling outside his district without permission; changing his address without permission; and failing to report to his parole officer. At his June 24, 2003, parole violation hearing, Webber, assisted by counsel, requested placement in a community based program which specialized in treatment of his psychoneurotic disorder, rather than incarceration. On July 24, 2003, the Board denied Webber re-parole as well as his request to be placed in a community based treatment program. (Dkt. Entry 52-3, July 25, 2003, Notice of Board Decision.) In directing that Webber be confined, the Board also provided that Webber "comply with the institution's prescriptive program requirements and have no misconducts. [Webber] must participate in and successfully complete the residential substance abuse treatment program." (Id.) Webber's next review was scheduled for January 2004, but "not before three months of successful participation in Phase II of the RSAT program." (Id.)
Webber's parole violations did not involve drugs. Plaintiff contends he is drug free and does not need to participate in further drug treatment programs as he no longer has a substance abuse problem. At the time of his parole violation hearing, the Department of Corrections ("DOC") staff also did not recommend Webber's participation in additional drug or alcohol treatment programs. (Id.) Webber contends the Board has an unwritten policy or practice of automatically re-committing technical parole violators with a history of substance abuse to the Residential Substance Abuse Treatment program ("RSAT") for the purpose of securing federal financial assistance. (Id.)
III. Relevant Procedural History
Webber initiated this action on September 11, 2003. By Order of September 30, 2004, the Court granted, in part, Defendants' Motion to Dismiss the Amended Complaint. (Dkt. Entry 27.) Webber's claims under the Americans with Disability Act ("ADA") and Rehabilitation Act ("RA") against the Board and Mr. Martinez*fn3 are all that remain of the Amended Complaint. Webber alleges that he was denied parole at his parole violation hearing and required to participate in the RSAT program strictly on the basis of his disability. This assertion is sufficient to state a claim under the ADA and RA. See Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002), cert. denied, 538 U.S. 921 (2003).
On November 10, 2004, Webber initiated a Petition for Review before the Commonwealth Court of Pennsylvania, challenging his denial of parole . See Webber v. Pennsylvania Board of Probation and Parole, et al., No. 763 M.D. 2004 (Pa. Cmwlth Ct.). After Webber filed an Amended Petition, Respondents filed preliminary objections and demurred to each claim. On May 26, 2005, the Commonwealth Court of Pennsylvania sustained the preliminary objections asserting a lack of jurisdiction.*fn4 See Dkt. Entry 52-2.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); seealsoAnderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002). The party moving for summary judgment bears the initial responsibility of stating the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After such a showing, the burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257(1986))(emphasis in Williams). The nonmoving party cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams, 891 F.2d at 460 (citing Celotex, 477 U.S. at 325). In other words, mere reliance on the allegations of the complaint is not enough for a plaintiff to defeat a defendant's summary judgment motion. Celotex, 477 U.S. at 325; seealso Fed. R. Civ. P. 56(e)(the nonmoving "party may ...