The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7496
WILLIE A. BROWN,
Plaintiff - Appellant,
versus
GENE JOHNSON, Director of the Department of
Corrections of Virginia; HELEN F. FAYHEY,
Chairwoman for the Virginia Parole Board,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-05-622-1)
Submitted: January 31, 2006 Decided: February 27, 2006
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Willie A. Brown, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie A. Brown, a Virginia inmate, appeals the district
court’s order dismissing his claims under 42 U.S.C. § 1983 (2000).
We modify the district court’s order to dismiss the case with
prejudice and affirm the district court’s order as modified.
Brown claimed that the Virginia Parole Board (“Board”)
exceeded its statutory authority by denying him parole based on an
improper standard of review. The district court dismissed Brown’s
case as improperly filed because it believed the action should have
been filed as a petition under 28 U.S.C. § 2254 (2000). Brown
filed a motion for reconsideration that the district court
construed as a motion under Fed. R. Civ. P. 60(b). However,
because the motion was filed within ten days of the district
court’s order,* it is more properly construed as a Fed. R. Civ. P.
59(e) motion. See In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992).
Brown’s timely Rule 59(e) motion tolled the appeal period for
appealing the underlying order until after the denial of the motion
for reconsideration. Fed. R. App. P. 4(a)(4); see also Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Therefore, we possess
jurisdiction to rule on the merits of the underlying order.
A civil rights action under § 1983 is the appropriate
vehicle to challenge the conditions of confinement, but not the
*
Applying Fed. R. Civ. P. 6(a), which excludes weekends from
the time calculation, Brown’s motion for reconsideration was filed
within ten days of the district court’s order.
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fact or length of the confinement. Preiser v. Rodriguez, 411 U.S.
475, 498-99 (1973). In order to challenge the fact or duration of
his confinement, a state prisoner must seek federal habeas corpus
relief or the appropriate state relief. Wilkinson v. Dotson, 544
U.S. 74, 125 S. Ct. 1242, 1245 (2005).
The district court concluded that if it granted Brown’s
desired relief, “it would immediately call into question his denial
of parole and in turn the length of his confinement.” However, the
Supreme Court came to the opposite conclusion in Wilkinson. In
Wilkinson, inmate Johnson filed a § 1983 action to challenge the
state procedures used to deny him parole. Johnson claimed the Ohio
Parole Board used an improper set of guidelines in its decision
making. Wilkinson, 125 S. Ct. at 1245. The Court held that he
could pursue his claim under § 1983 because success for Johnson
“means at most a new parole hearing at which Ohio parole
authorities may, in their discretion, decline to shorten his prison
term.” Id. at 1248. In this case, Brown likewise challenges the
methodology used by the Board in determining his parole.
Specifically, he asserts that the Board relied on a legally
impermissible standard — the seriousness of his offense — as a
basis for denying him parole. Just as in Wilkinson, if Brown
succeeds it would at most result in a new parole hearing where the
Board would retain its full discretion to deny parole. Because
Brown’s claim even if successful would not necessarily result in a
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speedier release, it does not lie at “the core of habeas corpus,”
and may be brought in a § 1983 action. Preiser, 411 U.S. at 489;
Wilkinson, 125 S. Ct. at 1248.
Nonetheless, we affirm the order of the district court
because Brown is precluded from relief under § 1983 as a matter of
law. See United States v. Smith, 395 F.3d 516, 518-19 (4th Cir.
2005) (holding appellate court may affirm on any ground apparent
from the record). Brown claims that the Board improperly used the
seriousness of his offense to deny him parole. We have held that
reliance on the seriousness of the offense is a proper standard for
parole decisions. See Bloodgood v. Garaghty, 783 F.2d 470, 472,
475 (4th Cir. 1986); see also Greenholtz v. Inmates of the Nebraska
Penal & Corr. Complex, 442 U.S. 1, 11, 15-16 (1979). Brown’s
argument under § 1983 fails as a matter of law.
Accordingly, we modify the district court’s order to
dismiss the case with prejudice and affirm the district court’s
order as modified. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED AS MODIFIED
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