FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER MITCHELL,
Plaintiff,
v.
DEPT. OF CORRECTIONS; et al.,
Defendants.
CIVIL ACTION NO. 3:02-CV-2219
272 F. Supp. 2d 464
July 22, 2003, Decided
I
Before the
Court is Magistrate Judge J. Andrew Smyser's Report and Recommendation, (Doc.
18), filed on June 5, 2003, [*466] regarding Plaintiff's pro se action filed
pursuant to 42 U.S.C. § 1983 on December 5, 2002, (Doc. 1). Plaintiff asserts
that Defendants violated his constitutional rights because he was held beyond
his maximum release date. n1 In his complaint, Plaintiff requested both
immediate release from custody and monetary damages. (Doc. 1, History of the
Case at 3.)
On February 19, 2003,
Defendants filed a Motion to Dismiss and a brief in support of the motion.
(Docs. 12, 13.) Defendants assert the following grounds for dismissal: 1) the Department
and the natural person Defendants are immune from damages by reason of the Eleventh
Amendment of the United States Constitution to the extent they are being sued
in their official capacities; 2)
Plaintiff's claim under 42 U.S.C. § 1983 is not cognizable because he has not
obtained a favorable decision concerning the time added to his maximum sentence
as a result of parole revocation proceedings; and 3) Plaintiff's claims for
injunctive and declaratory relief are moot because he was released from prison
on February 9, 2003. Plaintiff filed a Brief in Opposition and a document
entitled Motion in Opposition on April 14, 2003. (Docs. 16, 17.) Defendants did
not file a reply.
The
Magistrate Judge recommends that Plaintiff's requests for declaratory and
injunctive relief be dismissed as moot, concurring with Defendants that these
requests are moot because Plaintiff was released from prison on February 9,
2003. (Doc. 18 at 4.) The Magistrate Judge also recommends that Plaintiff's claims
against the Department and the individual Defendants in their official
capacities be dismissed based on Eleventh Amendment immunity. (Doc. 18 at 4-5.)
The Magistrate Judge does not agree with Defendants that the claims against them
in their individual capacities should be dismissed because such claims are
barred by the reasoning of Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383,
114 S. Ct. 2364 (1994). (Doc. 18 at 6.) Rather, the Magistrate Judge concluded
that the reasoning of Heck does not apply to those who have been released from
custody. (Doc. 18 at 16.)
Defendants filed objections
to the Magistrate Judge's Report and Recommendation and a Brief in Support of
Objections, (Docs. 19, 20), on June 19, 2003. Defendants objected on the bases
that Heck is applicable and Plaintiff has not satisfied the Heck requirement
that he obtain a favorable decision regarding the re-calculation of his maximum
date in order for a § 1983 claim to be cognizable. (Doc. 19 at 2-3.)
II
When a Magistrate Judge makes a finding or ruling on a motion
or issue, his determination should become that of the court unless objections
are filed. See Thomas v. Arn, 474 U.S. 140, 150-53, 88 L. Ed. 2d 435, 106 S.
Ct. 466 (1985). When no objections are filed, the district court need only
review a record for clear error prior to accepting a Magistrate Judge's
Recommendation. See Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1998).
However, when a Petitioner files objections to a magistrate judge's Report and
Recommendation, the district judge makes a de novo review of those portions of
the report or specified proposed findings or recommendations to which objection
is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987),
cert. denied, 484 U.S. 976 (1987).
[*467] Because Defendants have filed objections in this case, we
will review de novo those portions of the Magistrate Judge's Report and Recommendation
to which Defendants object. For the reasons set forth below, we adopt the
Magistrate Judge's Report and Recommendation in part, concurring that
Plaintiff's request for release is moot, his claim against the Department of
Corrections is barred by the Eleventh Amendment and his claims against
individual Defendants in their official capacities are also barred by the Eleventh
Amendment. We also conclude that Plaintiff's claim for damages against
Defendants in their individual capacities cannot go forward. We therefore grant
Defendants' Motion to Dismiss.
III
The documents submitted to the Court in this matter do not
present a concise history of charges and sentences for which Plaintiff has been
incarcerated periodically since his arrest for murder in 1971. The following
summary is derived essentially from Plaintiff's Complaint and attached
Exhibits, (Doc. 1), and his response to Defendants' Motion to Dismiss and
attached exhibits, (Doc. 18).
Plaintiff received a ten to twenty-year sentence with an
effective date of April 27, 1971, on the murder charge. The minimum date on
this sentence was April 27, 1981 and the maximum was April 27, 1991. (Doc. 16
Ex. A.)
While serving this sentence, Plaintiff was charged with
Possession of Implements of Escape, for which he received a one to two year
sentence on January 8, 1975. Apparently this sentence was to run consecutively
with Plaintiff's minimum sentence on the murder charge because he began serving
the Implements of Escape sentence on April 27, 1981 - the minimum date on his
murder sentence. (Doc. 16 Ex. B.)
On July 6, 1982, Plaintiff was ordered released on parole (Id.)
The Order to Release on Parole contained the notation that Plaintiff was to
remain on parole until April 27, 1991, the longest remaining maximum on his
murder conviction. (Doc. 16 Ex. B.)
In 1986, Plaintiff was arrested for Possession of a Controlled
Substance. (Doc. 16 Ex. C.) He was sentenced on April 13, 1987, to a term of
six to twelve months in the Dauphin County Prison. (Id.)
On July 1, 1987, Plaintiff was returned to the custody of the
Pennsylvania Department of Corrections for violating the conditions of parole
on his murder sentence. (Doc. 16 at 4.) The Parole Board imposed a one-year
term for violation of parole and the Department of Corrections recalculated
Plaintiff's maximum date to November 11, 1997. (Id.) Plaintiff asserts that the
Parole Board rescinded the one year violation of parole penalty after Plaintiff
filed an administrative appeal. n2 (Id. at 6.)
On January 25, 1988, Plaintiff was reparoled on the murder
sentence. (Id. at 4)
On July 12, 1988, Plaintiff was arrested on drug charges and,
following a plea of guilty to Unlawful Delivery of a Controlled Substance and
Criminal Conspiracy, was sentenced on March 28, 1989, to three to ten years, to
be served "following completion of the inmate's current sentence."
The "current sentence" referred to was [*468] the remainder of the
murder sentence. (Doc. 1 Ex. B.)
Plaintiff asserts that he was reparoled on the murder sentence
on April 4, 1990, and began serving his first delivery of a controlled
substance sentence. (Doc. 16 at 6.)
On July 20, 1992, Plaintiff was reparoled. (Id.)
On February 9, 1993, Plaintiff was again arrested on drug
charges and was convicted by a jury on one of three indictments on December 8,
1993. Following the jury verdict, Plaintiff asserts that he pled guilty to the
two remaining indictments and entered into a plea agreement that sentences on
the three indictments would run concurrently. (Doc. 1 History of the Case P 5.)
Plaintiff was sentenced to four to eight years on October 6, 1994, for Delivery
of a Controlled Substance. (Doc. 16 at 7.)
On April 22, 1993, the Pennsylvania Board of Probation and
Parole rendered a decision requiring Plaintiff to serve twenty-four months
backtime for parole violations. (See Doc. 1 Ex. j.)
On October 20, 1994, Plaintiff was returned to the custody of
the Pennsylvania Department of Corrections for violating the conditions of his
parole. Plaintiff asserts that this violation was based on his parole on his first
Delivery of a Controlled Substance sentence (July 12, 1988, arrest). (Doc. 16
at 7.) He contends that he was given a six-month term for leaving the district
without his parole supervisor's permission to run concurrently with twenty-four
months for technical violations (Criminal Conspiracy and Unlawful Delivery of a
Controlled Substance). (Id.; see Doc. 1 Ex. E.) According to the Board of
Parole's decision of February 7, 1995, as of that date Plaintiff's Parole
Violation Maximum Sentence was October 6, 2002. (Doc. 1 Ex. E.)
On March 14, 1995, Plaintiff was recommitted to the Parole Board
as a convicted parole violator on his murder sentence. (Doc. 16 at 7.)
On August 16, 2002, the Department of Corrections calculated
Plaintiff's minimum release date as December 5, 2001, and the maximum date as
December 5, 2005. This calculation was based on a start date for the four to
eight year Delivery of a Controlled Substance sentence as December 5, 1997.
(Doc. 1 Ex. H-1.)
On November 6, 2002, the Department of Corrections recomputed
Plaintiff's sentence to have an effective date of February 9, 1995, a minimum
date of February 9, 1999, and a maximum date of February 9, 2003. (Doc. 16 Ex.
G.)
Plaintiff asserts that, according to the Parole Board's
prescriptive plan, Plaintiff's maximum date is February 7, 2001. n3 (Doc. 1 at
1.)
Plaintiff filed his initial grievance on April 4, 2001. Plaintiff
received an unfavorable response both to his initial grievance and the appeal
thereof. (Doc. 1 Exs. G, H.) On August 1, 2001, Plaintiff's appeal to final
review was denied. n4 (Doc. 1 Ex. G.)
The record does not reflect that Plaintiff took any further
action on the matter until he filed this 42 U.S.C. § 1983 complaint on December
5, 2002 - approximately two [*469] months before his maximum sentence was to
expire.
Plaintiff was released from custody on February 9, 2003.
IV
A. Motion to Dismiss Standard
We agree with the standard set forth by the Magistrate Judge: a
motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of
the plaintiff's complaint; the court must decide whether, even if the plaintiff
were able to prove all of his allegations, he would be unable to prevail. (Doc.
18 at 2 (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977). The burden is on the moving party to show that there is no
actionable claim in a Rule 12(b)(6) motion to dismiss for failure to state a
claim. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). When evaluating a
motion to dismiss, the court must accept all material allegations of the
complaint as true and draw all inferences in the light most favorable to the
plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439, 449 (M.D. Pa.
1991). "The test in reviewing a
motion to dismiss for failure to state a claim is whether, under any reasonable
reading of the pleadings, plaintiff may be entitled to relief." Holder v.
City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation omitted).
Finally, it is well-settled that pro se complaints should be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594
(1972).
B. Merits of Plaintiff's Claims
We review
the Magistrate Judge's determinations regarding mootness and Eleventh Amendment
Immunity for clear error because no objections were filed on these issues. We
find no clear error in the Magistrate Judge's determination that Plaintiff's
request for release is moot because he was released on February 9, 2003 -
approximately two months after filing this action. (Doc. 18 at 3-4.) We also
find no clear error in the Magistrate Judge's conclusions that Plaintiff's
claim against the Department of Corrections is barred by the Eleventh Amendment
and his claims against the individual Defendants in their official capacities
are similarly barred. (Doc. 18 at 4-5.) Therefore, Plaintiff's claims regarding
release from prison, the Department of Corrections and the individual
Defendants in their official capacities will be dismissed.
The sole
remaining issue is whether Plaintiff's request for monetary damages can go
forward on his claim that he was incarcerated beyond his maximum release date
because of a sentence miscalculation despite the fact that Plaintiff has not
obtained a favorable decision regarding the calculation of his maximum release date.
The Magistrate
Judge reviewed caselaw relevant to this issue and concluded that, because
Plaintiff is no longer incarcerated, his § 1983 claim should be allowed to go
forward. The Magistrate Judge determined that there is no clear precedent on
whether the favorable termination rule of Heck v. Humphrey, 512 U.S. 477, 129
L. Ed. 2d 383, 114 S. Ct. 2364 (1994), applies to a § 1983 plaintiff who is no
longer incarcerated and in light of Supreme Court dicta on the issue in Spencer
v. Kemna, 523 U.S. 1, 140 L. Ed. 2d 43, 118 S. Ct. 978 (1998), this Court
should not bar a § 1983 action brought by a plaintiff who is seeking damages
relating to the duration of confinement and is no longer in custody. (Doc. 18
at 16.)
Defendant objects to the
Magistrate Judge's finding on the following bases: 1) the Heck rationale
applies to the instant case; Plaintiff did not obtain a successful
determination of his miscalculation claim; and 3) in the absence of guiding
Third Circuit Court of Appeals precedent on the [*470] issue of whether a
released prisoner's claim based on the duration of his confinement is
cognizable under § 1983, the facts of this case do not warrant the Court's
finding in Plaintiff's favor. (Docs. 19, 20.)
V
To resolve
the issue before us now, we must decide the applicability of Heck to the
circumstances of the instant case. In Heck v. Humphrey, the Court held that
in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such a determination, or called into question
by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 487-88 (emphasis in original). This holding is often
referred to as the "favorable termination requirement." See infra.
Heck is a
case in which the inmate plaintiff sought monetary damages but not injunctive
relief. As will be discussed below, the varied interpretations of the Heck
holding arise partially from the fact that the language of the holding is not
limited to the facts of the case: the holding speaks of "a § 1983
plaintiff" although the plaintiff in Heck was an inmate.
Implicit in the Heck holding
is that an inmate's federal claim
involving the fact or duration of confinement must first be raised as a habeas
petition if he seeks both injunctive relief and monetary damages. The Supreme
Court held that damages for allegedly unconstitutional imprisonment are not
cognizable unless the sentence has been invalidated by one of several methods,
including "called into question by the great writ." Heck, 512 U.S. at
487-88; see also Leamer v. Fauver, 288 F.3d 532, 540-42 (3d Cir. 2002). Several
courts have applied the Heck holding to bar a § 1983 claim for damages based on
an improper calculation of a prisoner's sentence. See, e.g., Graham v.
Kooker,1998 U.S. Dist. Lexis 15147, No. 98-0038, 1998 WL 669931, at *4 (E.D.
Pa. Sept. 28, 1998) (listing cases).
In this
case, there is no dispute that Heck would apply if Plaintiff were still
incarcerated or that Plaintiff has not obtained a favorable decision regarding
the calculation of his maximum release date. The question therefore comes down
to whether Heck's favorable termination requirement applies to a § 1983
plaintiff who is no longer in custody.
The Third Circuit Court of
Appeals has not addressed this specific issue
and the circuits which have are split. See, e.g., Nonette v. Small, 316 F.3d
872, 876-77 (9th Cir. 2002) (holding that Heck did not bar former inmate's §
1983 action in which he claimed sentence miscalculation); Randell v. Johnson,
227 F.3d 300, 301-02 (5th Cir. 2000) (holding that Heck would bar former
inmate's § 1983 action in which he claimed that the duration of his confinement
was unlawful).
The Magistrate Judge and the
courts which have held that Heck does not bar a § 1983 claim when the plaintiff
is no longer incarcerated and thus unable to obtain habeas relief rely on dicta
in the concurring opinions in Heck and Spencer. (See, e.g., Doc. 18 at 8-14.)
In Justice
Souter's concurring opinion in Heck, he concluded that the majority opinion
should be read as "saying nothing more than that now, after enactment of
the habeas statute and because of it, prison [*471] inmates seeking § 1983
damages in federal court for unconstitutional conviction or confinement must
satisfy a requirement analogous to the malicious-prosecution tort's
favorable-termination requirement." Heck, 512 U.S. at 500. Justice Souter explained that "allowing a state
prisoner to proceed directly with a federal-court § 1983 attack on his
conviction or sentence 'would wholly frustrate explicit congressional intent'
as declared in the habeas exhaustion requirement." Id. at 498 (quoting Prieser
v. Rodriguez, 411 U.S. 75, 489, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).)
Justice Souter indicated that
the favorable termination requirement should not apply in those cases where
habeas is not available because no conflict would arise between habeas and §
1983. Id. at 500. Examples of cases
where § 1983 should be allowed without the favorable termination requirement
were "people who were merely fined ... or have completed short terms of
imprisonment, probation or parole, or who discover (through no fault of their
own) a constitutional violation after full expiration of their sentences
..." Id. at 500. Justice Souter explained that if these people were
required to show the invalidation of their convictions or sentences,
the result would be to deny any federal forum for claiming a
deprivation of federal rights to those who cannot first obtain a favorable
state ruling. The reason, of course, is that individuals not "in
custody" cannot invoke federal habeas jurisdiction, the only statutory
mechanism besides § 1983 by which individuals may sue state officials in
federal court for violating federal rights. That would be an untoward result.
Id. In so concluding, Justice Souter also expressed
support for a "rule that forces inmates to follow the federal habeas route
with claims that fall within the plain language of § 1983 when that is
necessary to prevent a requirement of the federal habeas statute from being
undermined." Id. at 501.
In his
Spencer concurrence (in which Justices O'Connor, Ginsburg and Breyer joined and
with which Justice Stevens noted his approval in his dissent), Justice Souter
acknowledged that "the majority opinion in Heck can be read to suggest
that favorable-termination is an element of any § 1983 action alleging
unconstitutional conviction, whether or not leading to confinement and whether
or not confinement continued when the § 1983 action was filed." Spencer,
523 U.S. at 19. However, Justice Souter referred to the position he outlined in
his Heck concurrence to conclude that "Heck did not hold that a released
prisoner in Spencer's circumstances is out of court on a § 1983 claim, and for
reasons explained in my Heck concurrence, it would be unsound to read either
Heck or the habeas statute as requiring such a result." Spencer, 523 U.S.
at 19 (emphasis added).
The circumstances which Justice
Souter found removed the case from the Heck holding were that the federal
habeas petitioner (who sought to invalidate his parole revocation) had first
filed habeas petitions in state court and then filed a federal habeas petition.
Before the district court addressed the merits of the habeas petition, the
petitioner's sentence expired and the district court dismissed the petition as
moot. Spencer, 523 U.S. at 1. The essential holding of Spencer is that the
expiration of the petitioner's sentence caused his petition to be moot because
it no longer presented an Article III case or controversy. Id. Thus, Justice
Souter's concurrence addressed the availability of § 1983 in light of the
unavailability of federal habeas given the above-outlined circumstances.
[*472] Now, as [after Heck], we are forced to recognize that any application of the favorable termination
requirement to § 1983 suits brought by plaintiffs not in custody would produce
a patent anomaly: a given claim for relief from unconstitutional injury would
be placed beyond the scope of § 1983 if brought by a convict free of custody,
when exactly the same claim could be redressed if brought by a former prisoner
who had succeeded in cutting his custody short through habeas.
Spencer, 523 U.S. at 20-21. The coordinating footnote illustrates that
"a convict given a fine alone, or sentenced to a term too short to permit
even expeditious litigation without continuances before expiration of the
sentence, would always be ineligible for § 1983 relief." Id. at 21 n. *.
Justice Ginsburg also wrote a
separate concurring opinion. She stated that she had come to agree with Justice
Souter's reasoning in his Heck concurrence: "individuals without recourse
to the habeas statute because they are not "in custody" (people
merely fined or whose sentences have been fully served for example) fit within §
1983's broad reach." Spencer, 523 U.S. at 21.
Justice
Stevens noted in his dissenting opinion that "given the Court's holding
that petitioner does not have a remedy under the habeas statute, it is
perfectly clear, as Justice Souter explains, that he may bring an action under 42
U.S.C. § 1983." Spencer, 523 U.S. 25 n. 8, 140 L. Ed. 2d 43, 118 S. Ct.
978.
In the majority opinion, however, in which all of the Justices
except Justice Stevens joined, the Court stated that it did not believe
"that a § 1983 action for damages must always and everywhere be available.
" Spencer, 523 U.S. at 17.
As noted
previously, the circuits which have addressed Heck's application to a former
prisoner post Spencer are split. Three circuits have concluded that Heck's rule
applies to all § 1983 plaintiffs. Huey v. Stine, 230 F.3d 226, 229-30 (6th Cir.
2000); Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000); Figuero v.
Rivera, 147 F.3d 77, 83 n.3 (1st Cir. 1998). The First, Fifth and Sixth
Circuits have acknowledged the recent concurring opinions in Spencer which call
into question the applicability of the Heck rule to all § 1983 plaintiffs. Id.
However, they will apply Heck's favorable termination requirement to all § 1983
plaintiffs until the Court overrules what they consider applicable precedent.
n5 Id. The Randell court succinctly summarized its reason for applying Heck:
We are mindful that dicta from concurring and dissenting opinions in
... Spencer v. Kemna ... may cast doubt upon the universality of Heck's
"favorable termination" requirement. The Court, however, has
admonished lower courts to follow its directly applicable precedent, even if that precedent appears weakened by
pronouncements in its subsequent decisions, and to leave to the Court the
"prerogative of overruling its own decisions."
Randell, 227 F.3d at 301
(quoting Agostini v. Felton, 521 U.S. 203, 237, 138 L. Ed. 2d 391, 117 S. Ct.
1997 (1997) (additional and internal citations omitted)).
In the Ninth Circuit opinion in Nonnette v. Small, 316 F.3d 872
(9th Cir. 2002), the district court had held that Heck precluded [*473] Nonnette,
a former state prisoner no longer in custody, from filing a § 1983 action.
Noting that their ruling was in accord with at least two sister circuits, the
Circuit Court reversed because they found the plaintiff was on parole and a
habeas action could not proceed. Id. at 877 ((citing Huang v. Johnson, 251 F.3d
65, 75 (2d Cir. 2001); Carr v. O'Leary, 167 F.3d 1124, 1127 (7th Cir 1999)).
The court made this determination based on the reasoning that the concurring
opinions in Spencer clarified the original meaning of Heck not to include §
1983 plaintiffs who are no longer in custody. Id. at 877 & n. 5. Citing
Spencer, the Ninth Circuit found "five justices disagreed" with the
majority opinion writer Justice Scalia and quotes part of Justice Souter's
concurring opinion. Id. at 876.
But in Spencer, Justice Souter very clearly says "I join
the Court's opinion as well as the judgment, though I do so for an added reason
the Court does not reach, but which I spoke to while concurring in a prior
case." Spencer, 523 U.S. at 18. Then Justice Souter goes on to say that
Heck did not hold a released prisoner "in Spencer's circumstances is out
of court on a 1983 claim and, for reasons explained in my Heck concurrence, it
would be unsound to read either Heck or the habeas statute as requiring any
such result." Id. at 19.
However, the Heck Court says
we hold that, in order to
recover damages for allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the district court determines
that the plaintiff's action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in
the absence of some other bar to suit.
...
In another respect, however, our holding sweeps
more broadly than the approach respondents had urged. We do not engraft an
exhaustion requirement upon § 1983 unless and until the conviction or sentence
is reversed, expunged invalidated, or impugned by the grant of a writ of habeas
corpus. That makes it unnecessary for us to address the statute-of-limitations
issue wrestled with by the Court of Appeals, which concluded that a federal
doctrine of equitable tolling would apply to the § 1983 cause of action while
state challenges to the conviction or sentence were being exhausted.
Heck, 512 U.S. 486-87, 129
L. Ed. 2d 383, 114 S. Ct. 2364 (emphasis in original) (footnotes omitted).
Thus, reading Justice Souter's Spencer concurrence and Heck
together, Justice Souter seems to try to concur but not agree with the Court
and opt for a more "sensible" result.
[*474] This is an example of how such ruminating has resulted in
the Court itself having "put § 1983 and habeas corpus on ... a 'collision
course'" as Justice Thomas noted in his Heck concurrence. Heck, 512 U.S.
at 491 (citation omitted). In addition, this conflicting, conflating and
confusing writing causes much consternation to a lower court and to litigants
trying to adhere to the "determinations" of the highest Court.
Thus, we see the type of conflicted reasoning epitomized in
footnote five of the Ninth Circuit's opinion in Nonnette and Section II of the
Fifth Circuit's opinion in Randell. Nonnette, 316 F.3d at 877, n.5; Randell,
227 F.3d at 301-02.
The Third Circuit Court of Appeals has not ruled directly on
this issue and our research does not reveal that any court in our circuit has
applied the Spencer concurring dicta. However, the Court of Appeals has discussed
the overlap of § 1983 and habeas and reviewed the majority and concurring
positions in Spencer. Torres v. Fauver, 292 F.3d 141, 145 n.5 (3d Cir. 2002); Leamer
v. Fauver, 288 F.3d 532, 541-42 (3d Cir. 2002). In considering the availability
of habeas corpus and § 1983, the Leamer court discussed relevant United States
Supreme Court decisions including Spencer. Leamer, 288 F.3d at 540-42.
Most recently, in Spencer v.
Kemna, the Court addressed a contention that a habeas action brought subsequent
to the expiration of the prisoner's sentence should not be viewed as moot,
because the plaintiff would have been foreclosed from bringing an action under §
1983 unless he could establish the invalidity of his parole revocation. The
Court stressed that § 1983 would not be foreclosed if his challenge were to
procedure and not the result, as long as "the procedural defect did not
necessarily imply the invalidity of the revocation."
Id. (citing Spencer, 523
U.S. at 17.) Though the issue of a released prisoner seeking damages was not before
the Leamer court, the court cited the majority position in Spencer rather than
the concurrence which indicated that § 1983
may be more broadly available to a person not in custody.
In a decision filed one month later, the Third Circuit specifically
noted that the case did not require it to answer the question of whether the
favorable termination rule of Heck apples to persons unable to petition for a
writ of habeas corpus. Torres, 292 F.3d at 145 n.5. Nevertheless, the Torres
court discussed Spencer more extensively than the court had in Leamer, noting
the discrepancy between the majority and concurring dicta. The court set out
the habeas petitioner's argument that his petition could not be moot because,
if it were, Heck's favorable termination rule would bar him from bringing a §
1983 action, and he would be left without any federal forum in which he could
seek redress for the parole revocation. Id. (citing Spencer, 292 F.3d at 141).
Torres then reviewed the discrepancy between the majority and concurring
responses to this argument: the majority dismissed the argument as a
"great non sequitur, unless one believes (as we do not) that a § 1983
action for damages must always and everywhere be available[,]" Id.
(quoting Spencer, 292 F.3d at 141); five Justices (four in concurrence and one
in dissent who noted agreement with the concurrence) "expressly rejected
the majority's 'great non sequitur' dictum and said that the favorable
termination rule applies 'only [to] inmates seeking § 1983 damages for
unconstitutional conviction or confinement[,]'" Id. (quoting Spencer, 292
F.3d at 141, 25 n.8) (emphasis added in Torres). Torres summarized the
concurring and dissenting Justices' position as follows: "current and
[*475] former prisoners who cannot seek habeas relief, they said, can bring a §
1983 claim without satisfying the favorable termination rule even if they are
challenging the legality of their conviction or the duration of their
confinement." Torres, 292 F.3d at 145 n.5. Torres then noted the circuit
split on the issue and reiterated that the case did not require consideration
of the question "whether a § 1983 remedy must be available where habeas
relief is not." Id.
The Leamer and Torres discussions do not help us predict how the
Third Circuit would rule on this issue. However, we note that Leamer mentioned
only the majority opinion in Spencer: "the Court stressed that § 1983
damages need not 'always and everywhere be available' ...." Leamer, 288
F.3d at 542; supra pp. 17-18.
Based on the foregoing analysis, we choose to follow the Fifth
Circuit's reasoning in deciding that Heck applies in the instant case. Despite
the dicta from concurring and dissenting opinions in Heck and Spencer and the
fact that doubt may be cast upon the universality of Heck's "favorable
termination" requirement, we will heed the Supreme Court's warning in
Agostini: even if precedent appears weakened by pronouncements in its
subsequent decisions, we are to leave to the Court the "prerogative of
overruling its own decisions." Agostini, 521 U.S. at 237; Randell, 227
F.3d at 301. In Heck, the Court's holding was unequivocal: "We hold that,
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into quest Court has not overruled Heck, and thus it
remains binding precedent. If the concept of following precedent is to have any
real meaning, we should not engage in
tortuous reasoning simply to reach a conclusion we feel is more
"sensible" or a result that makes us more comfortable. As Justice
Souter and others have pointed out, "constitutional lines have to be
drawn, and on one side of every one of them is an otherwise sympathetic case
that provokes impatience with the Constitution and with the line. But
constitutional lines are the price of constitutional government." Agostini,
521 U.S. at 254.
Despite
dicta which may indicate otherwise, the United States Supreme Court did not
limit its holding in Heck and we will not do so here.
VI
However,
because the circuits are split and the Third Circuit has not ruled on the
specific issue before us, we will also analyze our case in the context of the
Heck and Spencer concurring dicta.
We think an
important consideration in this case - one which was not before the Spencer
court or discussed in the other circuit opinions which have dealt with the
issue - is the fact that this § 1983 plaintiff (who filed the § 1983 action
while incarcerated) failed to file a habeas action while he was in prison
although he was confined for the total time period in which such an action
could have been timely filed.
We engage
in the following discussion of what Plaintiff's proper procedure would have
been at the time he became aware of the alleged miscalculation recognizing
that, because Plaintiff has been released from [*476] prison, the discussion is
theoretical rather than dispositive. However, we think it is important to
consider what Plaintiff should have and could have done in order to determine what
relief may be appropriate when the proper procedure was not followed.
It has long been
established that a state prisoner's proper action to contest the calculation of
a release date in federal court is a habeas corpus petition rather than a 42
U.S.C. § 1983 action. In Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439,
93 S. Ct. 1827 (1973), the United States Supreme Court held that when a state
prisoner is challenging the fact or duration of his physical confinement, and
the relief he seeks is a determination that he is entitled to either immediate
release or a speedier release, his sole federal remedy is a writ of habeas
corpus. Preiser, 411 U.S. at 500. Prieser did not address the situation where a
prisoner is seeking monetary damages in connection with his claim that his
detention is unlawful. However, as noted previously, implicit in the Heck
holding is that an inmate's federal claim involving the fact or duration of
confinement must first be raised as a habeas petition if the inmate seeks both
injunctive relief and monetary damages. See supra p. 11.
A recent case within our circuit concluded that a challenge to
the recalculation of a sentence was properly cognizable under 28 U.S.C. § 2241.
Faulkner v. Pennsylvania Department of Corrections, 221 F. Supp. 2d 560, 562
(E.D. Pa. 2002). n6 Although § 2241 does not explicitly include an exhaustion
requirement, the Faulkner court found that exhaustion would be required in a
recalculation claim. Id. at 560-563. This conclusion was based on the fact that
the Third Circuit Court of Appeals has consistently required exhaustion of
claims brought by state prisoners under § 2241. Id. (citations omitted). "While exhaustion is mandated by Section
2254, it has developed through decisional law in applying principles of comity
and federalism as to claims brought under 28 U.S.C. § 2241. Exhaustion is not a
jurisdictional requirement but rather addresses federalism and comity concerns
...." Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001). Faulkner found
that the proper procedural vehicle to challenge prison officials' computation
of a sentence in Pennsylvania is a petition for a writ of habeas corpus ad
subjudiciem filed in the sentencing court. Faulkner, 221 F. Supp. at 563. n7
Finally, the statute of
limitations for a habeas action brought by a person in state custody is one
year. 28 U.S.C. § 2244(d)(1). The one year limitations period found in 28
U.S.C. § 2244(d)(1) applies to any challenge by a convicted state prisoner to
the calculation of his sentence. McLean v. Smith, 193 F. Supp. 2d 867, 872
(M.D.N.C. 2002). The provision applicable in this case provides that the
limitation period would begin to run on "the date on which the factual
predicate of the claim or claims presented could have been discovered through
the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). In a petition
which alleged a miscalculation of a release date, the Second Circuit Court of
Appeals found that the petitioner "could not have argued that he was in
custody in violation [*477] of the laws of the United States before the time
when, according to his calculations, he should have been released." James
v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002). Other courts have concluded that
the limitations period begins to run when the inmate becomes aware of the
miscalculation. Hall v.Edwards, No. Civ. A. 7:01-CV-00837, 2002 WL 32074715, at
*2 (W.D. Va. Jan. 7, 2002); Cable v. Cunningham, No. Civ. 98-573-B, 1999 WL
814368, at *2 n.4 (D.N.H. July 8, 1999.) The limitations period is tolled for
the time during which the petitioner pursues both administrative remedies and
state exhaustion. Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002); Morris v.
Cockrell, 2003 U.S. Dist. Lexis 4717, No. Civ. A. 402CV809Y, 2003 WL 21254880,
at *1 (N.D. Tex. March 25, 2003).
Given the
facts of the present case - specifically that Plaintiff filed a federal § 1983 action when he was a state
prisoner in which he claimed that his maximum release date was improperly
calculated and in which he sought both injunctive and monetary relief -
Plaintiff should have filed a petition for habeas corpus within the limitation
period for such an action. If Plaintiff had filed a federal habeas petition
while in custody, he would have been required to satisfy both the exhaustion
and limitations provisions of habeas.
Regarding
the limitations period, under 28 U.S.C. § 2244(d)(1)(D) Plaintiff should have
filed a habeas petition either within one year of the date which he calculated
as his proper maximum date or within one year of when he discovered the
miscalculation - depending on whether the James or Hall/Cable tolling rule is
used. See supra pp. 21-22. Since our research does not reveal Third Circuit
precedent on this issue, we will apply the rule most beneficial to Plaintiff.
Plaintiff does not precisely pinpoint when he became aware of the alleged
miscalculation. However, exhibits submitted to the Court indicate that he
questioned the calculation of his minimum and maximum dates to the Commonwealth
of Pennsylvania Board of Probation and Parole before August 22, 2000. n8
Alternatively, Plaintiff
asserts that his maximum date should have been February 7, 2001. Therefore,
using the date most beneficial to Plaintiff - February 7, 2001 - as the date
from which the one-year period began to run, Plaintiff could have filed a
federal habeas action within one year of that date. Tolling the period during
which Plaintiff pursued administrative remedies - April 4, 2001 to August 1,
2001 - would add 129 days to the limitation period. (Doc. 1 Exs. G, H.) Thus,
rather than February 7, 2002, the time for filing would have been extended
until June 16, 2002. No further tolling would be applicable because the record
does not indicate that Plaintiff filed any state or federal action regarding
this matter from the time he was notified that his appeal to final review was
denied, August 1, 2001, until the filing of the instant 42 U.S.C. § 1983 action
on December 5, 2002. Therefore, it is clear that if Plaintiff had tried to file
the proper action in this matter - a petition for a writ of habeas corpus - the
petition could not have been timely filed after June 16, 2002.
The timeliness of Petitioner's 42 U.S.C. § 1983 action is not
questioned. The limitations period for such an action is two years. See, e.g., Kost
v. Kozakiewicz, 1 F.3d 176, 189 (3d Cir. 1993). Here, we [*478] raise the issue
of timeliness under habeas and civil rights actions to highlight the fact that, although Plaintiff's § 1983 action was
timely, if he had filed the proper action - habeas corpus - the action would
have been time-barred. Therefore, if we allow this case to go forward, we will
have allowed Plaintiff to circumvent the habeas statute of limitations. Also,
as noted previously, because Plaintiff did not file a federal habeas petition,
he also avoided the exhaustion of state remedies requirement of a habeas action.
See supra p. 22 & n.7.
Plaintiff
could have, and did not, file a habeas action while incarcerated and the one
year limitation period for filing such an action expired, at the latest,
approximately eight months before he was released from prison. See supra pp.
14-15. This is sufficient time for a district court to review and decide a
habeas petition. n9 Further, if Plaintiff had filed a habeas petition within
the appropriate time and the district
court had not ruled on the petition prior to Plaintiff's release, he would be
in a position similar to the petitioner before the Spencer court - one who had
filed the appropriate action but whose release mooted his habeas petition.
Having
established what Plaintiff should have and could have done to redress his
miscalculation claim in a federal forum, we now turn to whether the favorable
termination rule of Heck applies in light of Plaintiff's release from prison
subsequent to the filing of his § 1983 action.
We acknowledge that the Spencer concurrence used some broad
language in dicta - referring to a § 1983 plaintiff who is a "convict free
of custody" and a "former prisoner, no longer 'in custody." But
we also think that other dicta in Spencer and Heck counsels caution in adopting
the Second, Seventh and Ninth Circuits' position (that Heck does not apply to
plaintiffs no longer in custody) or in predicting how the Supreme Court would
rule on the facts of this case. n10 (Spencer, 523 U.S. at 21.)
This reading of the Spencer dicta is appropriate for several
reasons. Justice Souter specifically referred to a "released prisoner in
Spencer's circumstances" when he opined that, for reasons explained in his
Heck concurrence, Heck did not hold that such a prisoner was foreclosed from §
1983 relief. Spencer, 523 U.S. at 19. As noted previously, Spencer had filed
the appropriate action (habeas corpus) within the appropriate time period and
the concurrence addressed the question of whether he could file a § 1983 action
after his release mooted the habeas petition - Spencer at that point had not
filed a § 1983 action. Under the circumstances, [*479] it was through no fault
of Spencer's that habeas relief was unavailable to him.
Among the reasons announced in his Heck concurrence, to which
Justice Souter referred in his Spencer concurrence, was the fact that no
conflict would arise between habeas and § 1983 if the favorable termination
rule of Heck did not apply in those cases where habeas was not available. Heck,
512 U.S. at 500; supra pp. 17-18. Examples of cases where § 1983 should be allowed
without the favorable termination requirement were "people who were merely
fined ... or have completed short terms of imprisonment, probation or parole,
or who discover (through no fault of their own) a constitutional violation
after full expiration of their sentences ..." Heck, 512 U.S. at 500; supra
p. 13. In his Spencer concurrence, Justice Souter illustrated his concern that
some plaintiffs would always be ineligible for § 1983 relief by citing the
examples of "a convict given a fine alone, or sentenced to a term too
short to permit even expeditious litigation ... before expiration of the
sentence." Spencer, 523 U.S. at 21 n.*; supra p. 15.
We also note that the speculative language in the Spencer
concurrence refers to a § 1983 plaintiff who is not in custody when the action
is brought: "§ 1983 ... brought by a convict free of custody" and
"a former prisoner, no longer 'in custody,' may bring a § 1983
action." Spencer, 523 U.S. at 21 (emphasis added). Thus, by its plain
meaning, the Spencer dicta does not refer to a prisoner who filed a § 1983
action while he was incarcerated. n11
Further, despite Justice Souter's suggestion of a less
restrictive reading of Heck in some circumstances, he has continually affirmed
his belief that § 1983 should not be allowed to undermine habeas. In Heck,
Justice Souter explained that "allowing a state prisoner to proceed
directly with a federal-court § 1983 attack on his conviction or sentence
'would wholly frustrate explicit congressional intent' as declared in the
habeas exhaustion requirement." Heck, 512 U.S. at 498 (quoting Preiser,
411 U.S. at 489); supra p. 13. Justice Souter also expressed support for a
"rule that forces inmates to follow the federal habeas route with claims
that fall within the plain language of § 1983 when that is necessary to prevent
a requirement of the federal habeas statute from being undermined." Heck,
512 U.S. at 501; supra pp. 13-14. In Spencer, Justice Souter stated that he
thought the Court was "bound to recognize the apparent scope of § 1983
when no limitation was required for the sake of some other statute or weighty
policy, as in the instance of habeas." Spencer, 523 U.S. at 20.
Moreover, a close reading of the Spencer concurring dicta is
appropriate given the statement in the Court's opinion that the Court did not
believe "that a § 1983 action for damages must always and everywhere be
available." Spencer, 523 U.S. at 17. The Court then cited an example where
§ 1983 might be available in the case of a claimed unlawful parole revocation
(the situation before the Court): "if, [*480] for example, petitioner were
to seek damages 'for using the wrong procedures, not for reaching the wrong
result, and if that procedural defect did not 'necessarily imply the invalidity
of' the revocation, then Heck would have no application at all." Id.
(internal citations to Heck, 512 U.S. at 482-83, 487.)
Finally, the Third Circuit Court of Appeals has
routinely recognized that, at the intersection of § 1983 and habeas - for cases
where the deprivation of rights is such that it necessarily impacts the fact or
length of detention - the Supreme Court has made clear that the narrower habeas
remedy is the only available avenue of relief. See, e.g., Leamer, 288 F.3d at
540.
As discussed above, under
relevant precedent, there is no doubt that a habeas petition was the
appropriate action for Plaintiff to file to seek federal relief for his
miscalculation claim while he was incarcerated. See supra pp. 24-30.
There is
also no doubt that Plaintiff's case is not analogous to the example the Spencer
majority used to illustrate a case were Heck would not apply. See supra pp.
33-34. Plaintiff does not file a claim based on procedure for which a
determination in his favor would not imply the invalidity of his sentence calculation; rather, Plaintiff claims that
the wrong result was reached regarding the calculation of his sentence. Thus,
if we ultimately were to decide in his favor on the calculation issue, our
decision would necessarily imply the invalidity of the calculation.
Furthermore, Plaintiff does
not fit within any of the examples cited by Justice Souter where habeas would
not be available and no conflict would arise between habeas and § 1983. See
supra pp. 31-32. Plaintiff was not merely fined. He discovered the alleged
miscalculation within ample time to file a habeas action. Plaintiff's period of
incarceration was not so short that a reviewing court could not have reviewed
his miscalculation claim while he was incarcerated.
Finally,
Plaintiff does not fit within the plain meaning of the Spencer concurring
language which would allow a "convict free of custody" or a
"former prisoner" to file a § 1983 based on the five Justices'
conclusion that Heck would not apply to these plaintiffs. See supra p. 32.
Here, Plaintiff was a prisoner when he filed the § 1983 action now before us.
It is significant that we find Plaintiff would be subject to the
Heck favorable termination requirement even if we were to apply Justice
Souter's preferred reading of the Heck holding as expressed in his Heck
concurrence. At the time he filed the instant action, Plaintiff was a
"prison inmate[] seeking § 1983 damages in federal court for
unconstitutional conviction or confinement [who therefore] must satisfy a
requirement analogous to the malicious-prosecution tort's favorable-termination
requirement." Heck, 512 U.S. at 500; supra p. 13, p. 32 n.11.
This is a case where Plaintiff could have, but did not, file a
habeas action while he was incarcerated. Moreover, based on our discussion of
the limitations and exhaustion requirements of habeas, to allow this § 1983
action - filed while Plaintiff was still incarcerated and past the limitation
period for filing a habeas action - would undermine important habeas
requirements and what the Supreme Court has read to be the clear congressional
intent that issues relating to the validity of a conviction or the fact or
duration of confinement be considered under the specific habeas statute. See
supra pp. 28-29.
Finally, in this case Plaintiff's record indicates his
familiarity with the court system. n12 He has had numerous arrests and [*481]
convictions and has been before the Pennsylvania Board of Probation and Parole
many times. n13 (See Docs. 1, 16.)
Based on
the foregoing discussion, we conclude that the Heck holding applies to a
plaintiff who was in prison when he filed a § 1983 action and who had an
opportunity to satisfy the favorable termination requirement before his
release. Therefore, we dismiss Plaintiff's § 1983 claim because he was
incarcerated when he filed the action and he has not satisfied Heck's favorable
termination requirement. We come to this conclusion acknowledging that habeas
is foreclosed in this case. However, we find that any reading of Heck which
would allow this § 1983 action to go forward would not be appropriate given the
Supreme Court and Third Circuit law addressing [*482] the intersection of §
1983 and habeas cases. Here the only reason Plaintiff cannot satisfy Heck's favorable
termination requirement is that (through his own fault) he did not file the
proper action while he was incarcerated. If the Court were to allow him to
circumvent the limitations period and exhaustion requirements of habeas because
he chose to file the wrong action while incarcerated, we would be creating a
situation where a prisoner could defeat the intent and specific requirements of
habeas and Heck's favorable termination requirement by waiting to file for
damages just before his release.
VII
We conclude that, even if Plaintiff were able to prove all of
his allegations, § 1983 is not available based on the mootness of his request
for release, the Eleventh Amendment immunity of Defendants, and the fact that
he has not met the favorable-termination requirement of Heck which is necessary
to maintain a § 1983 action under the circumstances of this case. An
appropriate Order follows.
S/Richard P. Conaboy
United States District Judge
DATED: July 22, 2003
ORDER
AND NOW, this 22nd day of July, 2003, for the reasons set forth
in the accompanying Memorandum, it is hereby ordered that:
1. Defendants' Motion to Dismiss, (Doc. 12), is GRANTED;
2. The Clerk of Court is directed to close this case.
S/Richard P. Conaboy
United States District Judge
FOOTNOTES:
n1 Although not named as a
Defendant in the body of the complaint, the Pennsylvania Department of Corrections is listed as a
Defendant in the caption of the complaint.
n2
Plaintiff asserts that his appeal was based on Rivenbark v. Pennsylvania Board
of Probation and Parole, 501 A.2d 1110 (Pa. 1985). Rivenbark held that a parole
violator could not be recommitted to separate terms of back time as both a
convicted parole violator and a technical parole violator, where technical
violation of parole was based upon the same act which constituted a new crime
of which parolee was convicted. Id. at 1114.
n3 This
plan is attached to Plaintiff's Complaint as Exhibit F. However, in the
document provided to the Court, Exhibit F is not legible.
n4
According to Defendants, this recitation of Plaintiff's charges and convictions
since 1971 does not present a complete picture of his convictions. (Doc. 20 at
3 n.3.) Defendants assert that, while incarcerated, Plaintiff also was
convicted of prison breach, escape, and assault on a corrections officer. (Id.)
n5 These
circuits do not agree with the Magistrate Judge's determination that
"given that Heck involved a state prisoner, any statements in the majority
opinion in that case that would lead to the inference that the
favorable-termination requirement applies to those who have been released from
custody are dicta." (Doc. 18 at 16.)
n6
Although some courts consider 28 U.S.C. § 2254 the proper vehicle for a state
prisoner to raise such a claim, the distinction is not central to our analysis.
See, e.g., James v. Walsh, 308 F.3d 162, 165-66 (2d Cir. 2002).
n7
Because Plaintiff's potential available avenues of state relief are not before
the Court or central to our analysis, we need not analyze what state court
remedies Plaintiff may have had. We note only that applicable law indicates
that exhaustion would be required if Plaintiff had filed a habeas petition.
n8 By letter dated August 22, 2000, the Pennsylvania Board of Probation and Parole responded to Plaintiff's correspondence regarding calculation of release dates. The Parole Manager reviewed some aspects of Plaintiff's sentence calculation and directed him to contact the Department of Corrections with further questions about his minimum and maximum dates because the Board of Probation and Parole had no jurisdiction in the matter. (Doc. 1 Ex. i.)
n9 This
Court is ruling on this § 1983 complaint within eight months of when it was
filed on December 2, 2002.
n10
Defense counsel has notified the Court that the Supreme Court has granted
certiorari on a Sixth Circuit case, Muhammed v. Close, 156 L. Ed. 2d 602, 123
S. Ct. 2573, 2003 WL 548900 ( 2003). The Court granted certiorari on two
issues: 1) whether a plaintiff who wishes to bring a § 1983 suit challenging
only the conditions, rather than the fact or duration of his confinement, must
satisfy the favorable termination rule of Heck; and 2) whether a prison inmate
who has been but is no longer in
administrative segregation may bring a § 1983 suit challenging the conditions
of his confinement (i.e. his prior placement in administrative segregation)
without first satisfying the favorable termination requirement of Heck.
Muhammed, 156 L. Ed. 2d 602, 2003 WL 548900. Although these issues are related
to the issue before this Court in that they involve the applicability of Heck,
our case differs in the important respect that the duration of confinement,
rather than conditions of confinement, is at issue here. Therefore, our
analysis and conclusion in this case is not altered by the fact that the
Supreme Court has granted certiorari on a case involving the conditions of
confinement.
n11 We also think that this reading of the
Spencer concurrence is consistent with Justice Souter's Heck concurrence in
which he concluded that the majority opinion should be read as "saying
nothing more than that now, after enactment of the habeas statute and because
of it, prison inmates seeking § 1983 damages in federal court for
unconstitutional conviction or confinement must satisfy a requirement analogous
to the malicious-prosecution tort's favorable-termination requirement." Heck,
512 U.S. at 500 (emphasis added); supra p. 13.
n12 Our
research reveals that it is likely Plaintiff filed a 28 U.S.C. § 2254 petition
in 1993, 93-CV-01787. The petitioner in that case was a Christopher Mitchell
who was incarcerated at the Dauphin County Prison. Piecing togther the records
presented in this action, it seems that Plaintiff was incarcerated in the
Dauphin County Prison when the above habeas action was filed.
n13 Though whether in fact Plaintiff was
incarcerated beyond his maximum term is not central to our analysis, we note
that the records provided do not indicate that Plaintiff served any more time
than he should have. The intertwining of Plaintiff's many arrests, paroles and
reparoles makes it difficult to determine the exact start and expiration dates
of some of his sentences. However, we know two things for certain. First,
Plaintiff's incarceration did not exceed the total time to which he was
sentenced. Plaintiff has received the following sentences since 1971: ten to
twenty years for second degree murder in 1971; three to ten years for delivery
of a controlled substance and conspiracy in 1988; and four to eight years as a
result of a February 9, 1993 arrest for two counts of delivery of a controlled
substance and possession. These sentences total a maximum of thirty-eight
years. Therefore, on a straight calculation basis, Plaintiff has received
sentences for which he could have been incarcerated until 2009. While the
intricacies of parole, backtime and other sentencing considerations possibly
could allow an earlier release date, it is a significant point that Plaintiff
has engaged in conduct for which he could have been incarcerated until 2009.
Second, we can say with certainty that from
his arrest on February 9, 1993, forward, the record clearly shows Plaintiff had
received sentences under which he would have been lawfully incarcerated until
February 9, 2003 - the date of his release. Plaintiff was arrested on February
9, 1993, for delivery of a controlled substance and conspiracy. At the time of
his arrest, he was on parole for a 1971 murder conviction and a 1988 delivery
of a controlled substance and conspiracy conviction. Plaintiff received four to
eight years for the February 9, 1993 offenses. (See Doc. 16 Ex. C, C1.) He also
received two years of backtime on the sentences for which he was on parole.
(See Doc. 1 Ex. j.) Plaintiff acknowledges that he received these sentences.
(See Doc. 16 at 7 PP 17, 20.)
Pennsylvania law dictates that these
sentences had to be served consecutively. The Supreme Court of Pennsylvania stated that 61 P.S. § 331.21a
"is quite clear that a parole violator convicted and sentenced to prison
for another offense must serve his or her back time and the new sentence in
consecutive order." Commonwealth of Pennsylvania v. Dorian, 503 Pa. 116,
468 A.2d 1091, 1092 (Pa. 1983) (citations omitted). Sentencing Code provisions
which enable a sentencing judge to make a new sentence concurrent with a
previously imposed sentence do not apply in the case of backtime for parole
violations. Id. ; Patrick v. Commonwealth of Pennsylvania, 110 Pa. Commw. 121,
532 A.2d 487, 490 (Pa. Commw. Ct. 1987) (citing Dorian, 468 A.2d at 1092).
Thus, a sentencing judge is not free to override the legislative mandate that backtime
and the new sentence must run consecutively.
Applying the law to the facts of this case,
Plaintiff's four to eight year sentence which he received on the February 9,
1993, charges and the two year backtime sentence had to be served consecutively.
Therefore, he could serve up to ten years on these sentences. Plaintiff served
no more than ten years - he was arrested on February 9, 1993, and was released
on February 9, 2003. (Plaintiff was out on bail from February 3, 1994, to
October 6, 1994. (See Doc. 1 at 1, Ex. C-1.)) Based on these calculations, we
are confident that Plaintiff did not spend any more time in prison than his
sentences called for.