United States District Court, E.D. Pennsylvania
THOMAS N. O'NEILL, Jr., District Judge.
I have before me pro se plaintiff Calvin Butler's amended complaints, the motion to dismiss of defendants, who are officials and employees of the Pennsylvania Board of Probation and Parole,  and plaintiff's response thereto. Plaintiff alleges violations of his Fourth, Fifth, Eighth and Fourteenth Amendment rights arising out of a claimed untimely notice of parole violations charged against him and a claimed delay in holding his parole revocation hearing for a new criminal charge against him more than 120 days after his conviction.
Mr. Butler was arrested on June 19, 2011 while on parole for driving under the influence. Dkt. No. 8 at ECF p. 2. He was sent to the State Correctional Institution at Graterford on June 23, 2011, given a preliminary parole hearing and detained at Graterford until August 2, 2011 when he was transferred to the State Correctional Institution at Mercer. Id. On September 28, 2011 plaintiff was convicted of driving under the influence. Id . On November 28, 2011 he was sentenced on his DUI conviction. Id . On February 10, 2012 plaintiff appeared at his parole revocation hearing for his DUI conviction, was recommitted as a convicted parole violator and ordered to serve twelve months of back time. Id. On March 2, 2012 plaintiff filed an administrative appeal from the Pennsylvania Board of Probation and Parole's decision to revoke his parole that was denied by the Board on April 10, 2012. Id. at ECF p. 7 (Ex. "C").
I previously dismissed plaintiff's amended complaint as against the Pennsylvania Board of Probation and Parole and the Office of Chief Counsel for the Board. Dkt. No. 9. Plaintiff, proceeding in forma pauperis, also asserts claims against the remaining defendants in their official and individual capacities pursuant to 42 U.S.C. § 1983 and seeks damages and compensation for every day of his incarceration, punitive damages, the restoration of his original maximum date and the termination of his new sentence. Id . For the reasons below, I will grant defendants' motion.
STANDARD OF| REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (internal quotations omitted). The question is not whether plaintiff will ultimately prevail. Watson v. Abington Twp. , 478 F.3d 144, 150 (3d Cir. 2007). Instead, for plaintiff's claims to survive a motion to dismiss, his "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007).
28 U.S.C. § 1915 applies to actions brought in forma pauperis and requires that a court dismiss plaintiff's action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Because plaintiff is proceeding pro se, the court "must liberally construe his pleadings, and... apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Dluhos v. Strasbere , 321 F.3d 365, 369 (3d Cir. 2003). "[H]owever inartfully pleaded, " pro se pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520-21 (1972). Unless amendment would be inequitable or futile the Court should not dismiss the complaint without allowing plaintiff leave to amend. Alston v. Parker , 363 F.3d 229, 235 (3d Cir. 2004), citing Grayson v. Mawiew State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002).
I. Habeas Corpus
As a threshold matter, to the extent that plaintiff is seeking immediate or earlier release from confinement and/or challenging the legality of his parole revocation proceedings, such requests for injunctive relief are not properly asserted in a civil rights complaint but must instead be brought in a habeas corpus action. Christian v. Pa. Bd. of Prob. & Parole. No. 3:CV-13-2432, 2014 WL 131634, at *3 (M.D. Pa. Jan. 13, 2014): see also Williams v. Consovoy , 453 F.3d 173, 177 (3d Cir. 2006) ("It is well-settled that when a state prisoner is challenging the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus, not a § 1983 action."); Georeevich v. Strauss. 772 F.2d 1078 , 1086 (3d Cir. 1985), quoting Preiser v. Rodriguez , 411 U.S. 475, 400 (1973) ("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus."). Plaintiff's claims seeking restoration of his original sentence maximum date and the termination of his ongoing new maximum sentence challenge the legality of his parole revocation decision and cannot be properly asserted in the instant civil rights action.
II. Claims Pursuant to 42 U.S.C. § 1983
Insofar as plaintiff seeks damages pursuant to § 1983 for his alleged injuries, his claims are insufficient to withstand defendants' motion to dismiss. In order to establish a claim pursuant to § 1983, plaintiff must demonstrate that defendants violated his constitutional or federal statutory rights and acted under color of state law. 42 U.S.C. § 1983; West v. Atkins , 487 U.S. 42, 48 (1988). In the instant action, plaintiff fails as a threshold matter to demonstrate that his constitutional rights were violated.
A. Fourteenth Amendment Due ...