The opinion of the court was delivered by: Judge Caldwell
The pro se plaintiff, Clarence Glenn, an inmate at the Frackville State Correctional Institution, Frackville, Pennsylvania, filed this civil-rights action pursuant to 42 U.S.C. § 1983, alleging he was "being kept incarcerated well beyond the court imposed sentence." (Doc. 4, Compl., p. 4). He sought only compensatory and punitive damages, not release from confinement, "for each day" of extra incarceration. (Id.).
We dismissed the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted, reasoning that under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and its progeny Plaintiff has no civil-rights claim for damages until he has had the decision of the Pennsylvania Board of Probation and Parole calculating his time to be served overturned in an appropriate proceeding. Glenn v. Pa. Bd. of Prob. & Parole, 2010 WL 3191849 (M.D. Pa. Aug. 11 2010). That calculation came about from an April 2010 remand from the Pennsylvania Commonwealth Court "so that the Board can give Glenn 411 days credit on his original aggregated 10 year state sentence for time served from 8-27-92 to 10-12-93." 2010 WL 3191849, at *1.
Glenn has filed a Motion to Alter or Amend the Court's order.*fn1 He argues that he did satisfy the favorable termination rule by obtaining the commonwealth court order directing the Board to give him the 411 days' credit. He contends the Board "abused its discretion [by] disregarding the commonwealth court's order [by] further extend[ing] plaintiff's maximum date to April 27, 2011." (Doc. 13, Mot. to Alter or Amend at p. 4).
The Court disagrees. Plaintiff says the Board abused its discretion by extending his maximum date, but to have satisfied the favorable termination rule, Plaintiff has to have shown that the Board's order after the remand was invalidated in an appropriate proceeding, such as federal habeas. In this regard, we note that when Plaintiff filed for mandamus in the commonwealth court challenging the Board's calculation on remand, the court dismissed the filing because Plaintiff was trying to substitute mandamus review for an untimely appeal.
We will issue an appropriate order.
AND NOW, this 31st day of August, 2010, it is ordered that Plaintiff's Motion to Alter Judgment (doc. 13) is denied.
William W. Caldwell United States ...