MOODY v. LAVALLEY-HILL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARRYL MOODY, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-CV-3885

:

TRACEY LAVALLEY-HILL, :

Defendant. :

MEMORANDUM

PAPPERT, J. OCTOBER 12, 2021

Plaintiff Darryl Moody, an inmate currently incarcerated at FCI Fort Dix, filed

this lawsuit pursuant to 42 U.S.C. § 1983 alleging that Tracey LaValley-Hill of the

Pennsylvania Parole Board violated his civil rights.1 (ECF No. 1.) Moody seeks leave

to proceed in forma pauperis. For the following reasons, the Court will grant Moody

leave to proceed in forma pauperis and dismiss his Complaint in its entirety pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii).

I2

While on parole in connection with a state conviction, Moody was arrested on

January 14, 2015, on drug and firearm charges. (See ECF No. 1 at 1.)3 He asserts that

“a detainer was lodged against my person immediately the same day.” (Id.) Although

1 LaValley-Hill’s job title is Director Parole Services Division, Wants & Notices, Extradition

Unit, Communications and Field Support Bureau of Central Services. (See ECF No. 1-1 at

8.) The Court adopts the pagination supplied by the CM/ECF docketing system.

2 The factual allegations are taken from Moody’s Complaint, exhibits attached thereto, and

public dockets, of which the Court may take judicial notice. See Buck v. Hampton Twp.

Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

3 Moody does not identify the state court conviction for which he was on parole.

he alleges that he was arrested on January 14, 2015 for violations of federal law, it

appears that Moody was arrested by the Pennsylvania State Police. See id.; see also

United States v. Moody, Crim. A. No. 15-191 at ECF No. 1. He was later indicted by a

federal grand jury, on May 6, 2015, on drug and firearm charges. (Crim. A. No. 15-191

at ECF No. 1.) A writ was issued and Moody was transferred from the George W. Hill

Correctional facility and taken into federal custody on May 8, 2015. (See id. at ECF

Nos. 3, 4, 11.) Moody stipulated to pretrial detention. (See id. at ECF No. 8.) It

appears new state charges that had been filed against Moody in connection with his

January 2015 arrest were withdrawn because the federal authorities were proceeding

against him for the same conduct. After several trial continuances, Moody pled guilty

to Counts 2 and 4 of the federal superseding indictment and was subsequently

sentenced to a term of 120 months on Count 2, and 60 months on Count 4, to run

concurrently. (See id. at ECF Nos. 13, 48.)

According to Moody, his due process rights were violated because the

Pennsylvania Parole Board had knowledge that he violated his parole contract and

failed to offer “a dispositional review or expedited revocation hearing request” on his

violation of parole at the time he was arrested. (ECF No. 1 at 1.) He contends that

“[i]nstead of my person serving the remainder of the State’s sentence left of the parole

contract, a[n] Officer for the Parole agency approached me on January 14, 2015 and

coerced me into signing a waiver document for a parole hearing until the outcome of my

new federal case . . . knowing that his/her actions were going against the agency’s own

code of conduct or laws which is a breach of contract.” (Id. at 2.)4

4 Moody did not attach a copy of the waiver agreement to his Complaint.

While serving his federal sentence, Moody received a detainer action letter dated

December 28, 2017. (See id. at 2; see also ECF No. 1-1 at 1, 2.) Subsequently, Moody

sought to inform the Pennsylvania Parole Board of the harm caused by the existence of

the detainer. (See ECF No. 1 at 2.) On April 26, 2021, Moody sent a Petition for

Warrant Dispositional Review or Expedited Revocation Hearing Request to the

Pennsylvania Parole Board requesting a dispositional review or revocation hearing on

the parole warrant that was issued, and the detainer that was lodged, as a result of

Moody’s federal charges. (See ECF No. 1-1 at 3-4.) In this Petition, Moody requested

that the Board withdraw the detainer because it impeded his ability to participate in

rehabilitative programs during his federal incarceration. (Id. at 3.) According to

Moody, the “warrant/detainer has adversely affected [his] ability to achieve ‘Superior

Programming.’” (Id.) The Petition asserted that Moody’s due process rights were

violated because he was not given a timely revocation hearing. (Id.) When he did not

receive a response to his Petition, Moody sent a letter to the Pennsylvania Parole Board

informing the office that it had acquiesced and tacitly agreed by default to Moody’s

Petition. (Id. at 5.)

Having failed to receive a response from the Pennsylvania Parole Board, Moody

asked a relative to contact LaValley-Hill by email. (See ECF No. 1 at 2.) LaValley-Hill

responded that Moody “is not available to have his revocation hearing for his new

conviction until he is physically returned to a PA State Correctional Institution. Once

PA is notified of his availability to be released from his current holding facility, he will

be extradited to return to a SCI and will be seen by PA Parole Board for his revocation

hearing for his new convictions.” (See ECF No 1-1 at 8.)

Moody contends that when he was arrested on January 14, 2015, he was “coerced

. . . to sign a waiver agreement, then fleeced . . . to the Federal Government knowing

that [he] did not complete the Parole agreement with the State of Pennsylvania.” (ECF

No. 1 at 2.) Moody avers that he has been harmed because he is unable to participate

in rehabilitative programs during his federal sentence due to the detainer lodged

against him. (Id.) He asserts that his Fifth Amendment due process rights have been

violated, as well as his Sixth Amendment right to counsel for his “defense to the

procedure.” (Id.) In addition, Moody alleges that his inability to participate in

rehabilitative programs constitutes cruel and unusual punishment in violation of the

Eighth Amendment and that he has been denied equal protection of the laws by the

Pennsylvania Parole Board in violation of his rights secured by the Fourteenth

Amendment. (Id. at 3.) Moody seeks monetary damages, as well as injunctive relief in

the form of lifting of the detainer. (Id. at 2-3.)

II

The Court grants Moody leave to proceed in forma pauperis because it appears

that he is incapable of paying the fees to commence this civil action.5 Accordingly, 28

U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if

it fails to state a claim. Whether a complaint fails to state a claim under §

1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d

236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint

5 However, as Moody is a prisoner, he will be obligated to pay the filing fee in installments

in accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

contains “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) (quotations omitted);

Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (‘“At this early stage of the

litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,’

‘draw[] all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that]

complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.’”

(quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory

allegations do not suffice. Iqbal, 556 U.S. at 678.

As Moody is proceeding pro se, the Court construes his allegations liberally.

Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 244-45 (3d Cir. 2013)). “This means we remain flexible, especially ‘when

dealing with imprisoned pro se litigants[.]’” Id. (quoting Mala, 704 F.3d at 244). The

Court will “apply the relevant legal principle even when the complaint has failed to

name it.” Id. However, ‘“pro se litigants still must allege sufficient facts in their

complaints to support a claim.’” Id. (quoting Mala, 704 F.3d at 245).

III

The vehicle by which federal constitutional claims may be brought in federal

court is Section 1983 of Title 42 of the United States Code, which provides in part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983. “Section 1983 is not a source of substantive rights,” but is merely a

means through which “to vindicate violations of federal law committed by state actors.”

See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). “To state a claim under § 1983,

a plaintiff must allege the violation of a right secured by the Constitution and laws of

the United States, and must show that the alleged deprivation was committed by a

person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Liberally construing Moody’s Complaint, the Court understands him to allege due

process claims, as well as a claim for a violation of his Sixth Amendment right to

counsel, a claim for a violation of the cruel and unusual punishment clause of the

Eighth Amendment, and a Fourteenth Amendment equal protection claim. Despite

that liberal construction, Moody has not alleged a plausible basis for any claims against

LaValley-Hill.

A

Moody asks the Court to quash the detainer currently lodged against him and

appears to seek damages based on harm caused by its issuance. A prisoner cannot use

§ 1983 to challenge the fact or duration of his confinement or to seek immediate or

speedier release. Preiser v. Rodriguez, 411 U.S. 475 (1973). “He must seek federal

habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S.

74, 78 (2005). To the extent Moody asks the Court to invalidate the detainer lodged

against him, his claims are subject to dismissal and must be brought in a properly filed

habeas corpus petition. See Mokone v. Fenton, 710 F.2d 998, 1002 (3d Cir. 1983)

(challenge to detainer must be brought in a habeas proceeding). Furthermore, to the

extent Moody seeks damages for harm caused by the detainer, those claims are not

currently cognizable in a § 1983 action because success on those claims would imply the

invalidity of the detainer, which has not yet been invalidated through proper channels.

See Heck v. Humphrey, 512 U.S. 477 (1994); see also McBride v. O'Brien, 646 F. App’x

277, 278 (3d Cir. 2016) (per curiam) (“To the extent that McBride alleges that his

confinement on the detainer violates federal law, a favorable outcome would necessarily

demonstrate the invalidity of his detention.”); Jackson v. Alt, 236 F. App’x 850, 851 (3d

Cir. 2007) (per curiam) (plaintiff who sought damages for alleged due process and equal

protection violations arising from what he views as the improper issuance of a parole

violator warrant, and the lodging of that warrant as a detainer, could not proceed under

§ 1983 because he has not successfully challenged the warrant in any state or federal

proceeding) (citing Heck, 512 U.S. at 487); Munofo v. Alexander, 47 F. App’x 329, 331

(6th Cir. 2002) (“Munofo’s § 1983 claim is not cognizable under Heck because ‘a

judgment in favor of the plaintiff would necessarily imply the invalidity’ of the

parole detainer at issue here.”); Antonelli v. Foster, 104 F.3d 899, 900-01 (7th Cir.

1997) (Heck applied to damages suit for arrest based on federal parole violator

warrant); Zavalunov v. White, Civ. A. No. 18-2438, 2020 WL 754415, at *6 (M.D. Pa.

Feb. 13, 2020) (Heck “applies [to] detainer actions”).6

6 In the habeas context, a petitioner challenging a detainer must first exhaust state court

remedies. See Iwanicki v. Dunn, Civ. A. No. 17-486, 2020 WL 2495856, at *2 (W.D. Pa. Apr.

2, 2020) (finding that to the extent the habeas petitioner may also be challenging the Parole

Board’s detainer that it lodged against him, he also failed to exhaust his state court

remedies because he could have, but did not, challenge the detainer by filing a petition for

writ of mandamus in the Commonwealth Court’s original jurisdiction) (citing Bellochio v.

Com., Pennsylvania Bd. of Probation and Parole, 559 A.2d 1024, 1025 (Pa. Cmmw. Ct.

1989), report and recommendation adopted, Civ. A. No. 17-486, 2020 WL 2490031 (W.D. Pa.

May 14, 2020); Shaw v. Warden FCI McKean, Civ. A. No. 17-253, 2018 WL 5297785, at *1

(W.D. Pa. Oct. 25, 2018) (habeas petitioner must first exhaust state court remedies before

filing a § 2254 petition seeking to have detainer lifted).

B

Moody’s Complaint in part concerns what he deems the failure of the

Pennsylvania Parole Board to offer “a dispositional review or expedited revocation

hearing request” at the time he was arrested, and the alleged resultant inability to

participate in rehabilitative programs in his current confinement. (ECF No. 1 at 1-2.)

The Court understands Moody to allege that he did not receive a timely parole

revocation hearing despite having requested one while serving his sentence in federal

custody. (See ECF No. 1 at 1-2.) The Supreme Court has held that claims challenging

the constitutionality of parole procedures may be brought pursuant to § 1983. See

Wilkinson, 544 U.S. at 76, 78-84; see also Singleton v. Superintendent Camp Hill SCI,

747 F. App’x 89, 93 (3d Cir. 2018) (per curiam) (“To the extent that Singleton is

claiming that he did not receive a timely parole revocation hearing – a procedural issue

– his claim is not foreclosed by Heck.”).

A parolee facing revocation of parole has a conditional constitutional liberty

interest in remaining free. See Morrissey v. Brewer, 408 U.S. 471, 483-84 (1972). Due

process requires that a parole revocation hearing be held “within a reasonable time

after the parolee is taken into custody.” Id. at 488. A defendant generally is entitled to

two separate hearings prior to revocation of parole or probation. See Gagnon v.

Scarpelli, 411 U.S. 778, 782, 786 (1973). The purpose of the first, pre-revocation

hearing (a Gagnon I hearing) is to determine that probable cause exists to believe that

a violation has been committed. Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.

Super. Ct. 2000). The second, “more comprehensive hearing” (a Gagnon II hearing), is

to determine whether facts exist to justify revocation of parole or probation. Id.

“However, the [revocation] hearing requirement is ‘not triggered when the

warrant is placed as a detainer at an institution where the . . . parolee is already in

custody awaiting disposal of an intervening charge or serving a sentence for a crime

committed while on supervised release.’” Singleton, 747 F. App’x at 93 (quoting United

States v. Wickham, 618 F.2d 1307, 1309, n.3 (9th Cir. 1979)). Rather, the duty to

provide a revocation hearing arises only when the parolee “is taken into custody as a

parole violator by execution of the warrant,” because “execution of the warrant and

[consequent] custody under that warrant [is] the operative event triggering any loss of

liberty attendant upon parole revocation.” Id. (citing Moody v. Daggett, 429 U.S. 78, 87,

89 (1976)).7

Pursuant to the Pennsylvania Parole Board’s administrative regulations, “[i]f the

parolee is in custody in another state, or in Federal custody, the Board may lodge its

detainer but other matters may be deferred until the parolee has been returned to a

State correctional facility in this Commonwealth.” 37 Pa. Code § 71.5; see also id. at §

71.4(1)(i) (if a parolee is confined outside the jurisdiction of the Pennsylvania

Department of Corrections, a revocation hearing shall be held within 120 days of the

official verification of the return of the parolee to a state correctional facility).8 Indeed,

7 “[T]he lodging of a detainer does not amount to execution of the warrant. A detainer is

designed merely to provide notice to the institution of confinement that a warrant has been

issued and that the [government] intends to consider the question of parole revocation at a

later date. The operative event triggering any loss of liberty attendant upon parole

revocation is the execution of the warrant and the concomitant assumption of custody of the

parolee.” Bradley v. United States Parole Comm’n, Civ. A. No. 15-247, 2017 WL 2604267, at

*3 (M.D. Pa. May 23, 2017) (internal citations and quotations omitted), report and

recommendation adopted, Civ. A. No. 15-247, 2017 WL 2592403 (M.D. Pa. June 15, 2017).

8 Moody alleges that his due process rights were violated when he was not offered a

dispositional review or expedited revocation hearing in violation of federal law and

LaValley-Hill advised Moody’s relative in her email response to his inquiry that upon

completion of Moody’s federal sentence, and the execution of the parole warrant, he

would be returned to a Pennsylvania state facility where he would receive a parole

revocation hearing. (See ECF No. 1-1 at 8.)

Until his release from federal custody, Moody’s denial of liberty is the result of

his federal conviction on other charges, and not the lodging of the detainer for the

Pennsylvania parole violation warrant. Accordingly, the due process protections of

Morrissey have not yet been triggered. See Singleton, 747 F. App’x at 93 (Singleton was

in custody pursuant to his subsequent Pennsylvania charges, not as a violator of his

New York probation, and thus, his due process right to a prompt probation revocation

hearing was not triggered until he was taken into custody by New York after pleading

guilty to his Pennsylvania crimes); Underwood v. Pennsylvania Bd. of Prob. & Parole,

Civ. A. No. 19-1634, 2021 WL 1197697, at *4 (M.D. Pa. Mar. 30, 2021) (civil rights

plaintiff’s due process rights were not triggered while in federal custody because state

parole warrant had not yet been executed); see also Sellers v. Pennsylvania Bd. of Prob.

& Parole, Civ. A. No. 19-4666, 2020 WL 8968104, at *3 (E.D. Pa. Sept. 23, 2020)

(finding due process claim brought in § 2254 habeas petition to be meritless because

Pennsylvania Parole Board was not required to provide petitioner with a parole

violation hearing until he completed his federal sentence, and therefore, issuance of

parole detainer and failure to conduct a hearing within 120 days of its issuance or

petitioner’s federal sentencing did not deprive petitioner of any constitutionally-

regulations. (See ECF No. 1 at 1-2.) However, Pennsylvania law governs in this instance,

as Moody was on parole for a state court conviction.

protected rights), report and recommendation adopted sub nom. Sellers v. Pa. Bd. of

Prob. & Parole, Civ. A. No. 19-4666, 2021 WL 1105337 (E.D. Pa. Mar. 23, 2021).

Moody also contends that the imposition of the detainer and delay in executing

the warrant denies him the opportunity to participate in prison rehabilitation or re-

entry programs, or to receive a halfway house placement. (See ECF No. 1 at 2.) To the

extent he seeks to allege a due process violation on this basis, he has failed to allege a

plausible claim. The Supreme Court has held that the Due Process Clause is not

implicated by “prisoner classification and eligibility for rehabilitative programs,” even

where an inmate suffers “grievous loss,” because “Congress has given federal prison

officials full discretion to control these conditions of confinement.” See Moody, 429 U.S.

at 88 n.9. In Moody, the Court held that the petitioner had no legitimate statutory or

constitutional entitlement sufficient to invoke due process. Id.

In this case, absent a protected liberty interest, Moody cannot maintain a due

process claim regarding his prison classification due to the existence of the detainer.

See Bailey v. Ebbert, Civ. A. No. 15- 1554, 2016 WL 11612608, at *2 (M.D. Pa. Aug. 5,

2016) (noting that federal inmate has no constitutional right to a particular

classification) (citing Moody, 419 U.S. at 88 n.9); see also Zavalunov v. Fed. Bureau of

Prisons, Civ. A. No. 19-453, 2020 WL 2036722, at *11 (M.D. Pa. Apr. 28, 2020) (federal

inmate did not have due process right to participation in rehabilitative program);

Garcia-Hernandez v. Dep’t of Homeland Sec., Civ. A. No. 19- 222, 2021 WL 640859, at

*2 (W.D. Pa. Jan. 20, 2021) (Congress has given federal prison officials full discretion to

control prisoner classification and eligibility for rehabilitative programs in the federal

system and petitioner has no legitimate statutory or constitutional entitlement

sufficient to invoke due process); Mathis v. Kauffman, Civ. A. No. 19-1377, 2019 WL

4594105, at *3 (M.D. Pa. Sept. 20, 2019) (denying habeas relief because petitioner had

no protectable liberty interest in his prisoner classification, qualification for

rehabilitative programs, or early release and thus could not show a constitutional

deprivation as a result of the existence of the parole violator detainer); Springer v.

United States, Civ. A. No. 10-967, 2010 WL 4235472, at *4 (D.N.J. Oct. 20, 2010)

(collateral consequences of a detainer, such as denial of the opportunity to participate

in prison rehabilitation programs, do not rise to the level of a constitutional deprivation

for which habeas relief can be granted); Velazquez v. United States Parole Comm’n, Civ.

A. No. 08-0841, 2009 WL 3287387, at *5 (M.D. Pa. Oct. 13, 2009) (rejecting habeas

petitioner’s claim that due process rights were violated due to detainer and previously

unexecuted warrant adversely affecting his prison classification and his ability to

participate in certain institutional programs because petitioner has no legitimate

statutory or constitutional entitlement sufficient to invoke due process).9 For these

reasons, Moody’s due process claims will be dismissed without leave to amend as he

cannot state a claim based on his inability to access programming while incarcerated.

C

Moody also alleges that his rights were violated in connection with the signing of

a waiver. He claims an “Officer for the Parole agency approached me on January 14,

2015, and coerced me into signing a waiver document for a parole hearing until the

outcome of my new federal case . . . knowing that his/her actions were going against the

9 Additionally, Moody has no claim against LaValley-Hill regarding his current

classification under the circumstances of this case.

agency’s own code of conduct or laws which is a breach of contract.” (See ECF No. 1 at

2.) Citing the Sixth Amendment and due process, he contends that his rights were

violated because he “did not have the assistance of counsel for my defense to the

procedure.” (See id.)

Moody has not alleged a plausible Sixth Amendment claim. The Third Circuit

Court of Appeals has explained that “[a] parole revocation hearing is not a criminal

prosecution.” United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (citing

Morrissey, 408 U.S. at 480) (“[T]he revocation of parole is not a part of a criminal

prosecution and thus the full panoply of rights due a defendant in such a proceeding

does not apply to parole revocations.”). Consequently, “there is no constitutional right

to representation by counsel at a parole revocation hearing.” Id. (citing Gagnon, 411

U.S. at 783-90); see also Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365-

76 (1998) (noting that the right to counsel generally does not attach to such proceedings

because the introduction of counsel would “alter significantly the nature of the

proceeding”) (quoting Gagnon, 411 U.S. at 787); Weikel v. Vorous, Civ. A. No. 17-1573,

2018 WL 3866681, at *4 (D. Del. Aug. 14, 2018) (dismissing as frivolous pursuant to §

1915(e)(2)(B)(i) and § 1915A(b)(1) plaintiff’s claim that his constitutional rights were

violated when he was not provided counsel at his parole revocation hearing) (citing

Gagnon, 411 U.S. at 783-90); Woodall v. Pennsylvania Bd. of Prob. & Parole, Civ. A. No.

13-816, 2015 WL 8493991, at *7 (M.D. Pa. Dec. 10, 2015) (“[C]ourts in this Circuit have

consistently concluded that there is no right to counsel in the parole revocation context

and have rejected claims of ineffective assistance of counsel [in habeas corpus cases].”);

Ammouri v. Klem, Civ. A. No. 06-3887, 2007 WL 1892489, at *5 (E.D. Pa. June 28,

2007) (Generally, a parolee has no constitutional right to counsel at a parole revocation

hearing.). Thus, Moody has not stated a plausible claim that his Sixth Amendment

rights were violated in connection with the events of January 2015.10

It appears that Moody may be attempting to bring a due process claim based on

these events, i.e., based on his execution of a “waiver document for a parole hearing,”

allegedly under coercion, without the benefit of counsel. However, it is not clear what

Moody is alleged to have waived here, in what context the waiver was obtained, and

what procedures Moody is either challenging or claiming were not followed. Indeed, it

is not clear that any parole hearing occurred in January 2015 and Moody’s Complaint

suggests that his revocation hearing will occur after he is returned to state custody.

Moreover, although Moody alleges that he was coerced into signing the waiver, he does

not support his conclusory allegation with facts explaining the context in which the

waiver was given or why it is plausible to conclude his waiver was involuntary or that

counsel was required. Again, Moody did not attach a copy of the waiver to his

Complaint. Since it is not clear what Moody waived, and the context in which that

10 In Pennsylvania, the Public Defender Act, the Administrative Agency Law, and the

administrative regulations of the Pennsylvania Parole Board give parolees the right to

representation in revocation proceedings. See Colbert v. Pennsylvania Parole Board, No.

654 C.D. 2020, 2021 WL 1961929, at *3 (Pa. Commw. Ct. May 17, 2021). That is, the

“[r]ight to counsel in a state parole violation hearing is not based on either the state or

federal constitutions, but rather on statutory law, case law and regulatory law.” Williams

v. Pennsylvania Bd. of Prob. & Parole, No. 1494 C.D. 2007, 2008 WL 9398704, at *4 (Pa.

Commw. Ct. Apr. 24, 2008) (citing Worthington v. Pennsylvania Bd. of Prob. & Parole, 784

A.2d 275 (Pa. Cmmw. Ct. 2001)). Consequently, redress for the violation of such a right

does not lie in a § 1983 action. Moreover, “the absence of counsel at a Gagnon I hearing will

not result in the reversal of a subsequent parole revocation if the error is harmless beyond a

reasonable doubt.” Ferguson, 761 A.2d at 620 (citing Commonwealth v. Fowler, 419 A.2d

34, 35 (1980)).

waiver was obtained, the factual contours of this claim are not entirely clear and the

Court will permit Moody to amend this claim.

D

Moody also alleges his Eighth Amendment rights have been violated in that he is

“suffering cruel and unusual punishment by not having the opportunity to participate

in the existing rehabilitative programs in the Bureau of Prisons or Re-entry programs

of the Bureau of Prisons, because of the existing Warrant/Detainer that’s being lodged

against” him. (ECF No. 1 at 3.) This claim isn’t plausible either. See Dodd v. Derose,

Civ. A. No. 15-1088, 2015 WL 7271809, at *3 n.2 (M.D. Pa. Sept. 28, 2015) (finding that

plaintiff’s claim that the detainer, which prevents him from posting bail, amounts to

“cruel and unusual punishment” in violation of the Eighth Amendment lacks merit,

as“[i]mprisonment itself is clearly not cruel and unusual punishment.”) (citing Lee v.

Pennsylvania Bd. of Prob. & Parole, 467 F. Supp. 1043, 1046 (E.D. Pa. 1979), report and

recommendation adopted, Civ. A. No. 15-1088, 2015 WL 7252461 (M.D. Pa. Nov. 17,

2015). Additionally, Moody’s allegations that he is unable to participate in preferred

programming does not allege an objectively serious condition sufficient to state an

Eighth Amendment claim. Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (explaining

that the Eighth Amendment is violated where a prisoner is deprived of “the minimal

civilized measure of life’s necessities”).

E

Moody also asserts an equal protection claim. “The Equal Protection Clause of

the Fourteenth Amendment commands that no State shall ‘deny to any person within

its jurisdiction the equal protection of the laws,’ which is essentially a direction that all

persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To

establish an equal protection violation, a prisoner must allege “that he was treated

differently than other similarly situated inmates, and that this different treatment was

the result of intentional discrimination based on his membership in a protected class.”

Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (citing Hassan v. City of New

York, 804 F.3d 277, 294, 298 (3d Cir. 2015)). To the extent his allegations may be read

as asserting a claim based on a “class of one” theory, he must allege he was

intentionally treated differently from other similarly situated inmates and that there

was no rational basis for the treatment. See Phillips v. Cty of Allegheny, 515 F.3d 224,

243 (3d Cir. 2008). “Persons are ‘similarly situated’ for purposes of an equal protection

claim when ‘they are alike in all relevant aspects.’” Startzell v. City of Philadelphia,

533 F.3d 183, 203 (3d Cir. 2008) (emphasis omitted).

Here, Moody provides no allegation or factual support for his equal protection

claim aside from the general allegation that his rights have been violated. He alleges

that he is “being denied equal protection of the law because the PA Probation and

Parole Board are the governing authorities which does have knowledge of the law but

has acted contrary to its own understanding.” (See ECF No. 1 at 3.) Because Moody

has not alleged that he was treated differently from those similarly situated, his equal

protection claim is not plausible. See Tillman v. Lebanon Cty. Corr. Fac., 221 F.3d 410,

424 (3d Cir. 2000) (“Where there is no discrimination, there is no equal protection

violation.”); Collura v. Disciplinary Bd. of Supreme Court of Pa., Civ. A. No. 11-5637,

2013 WL 4479141, at *7 (E.D. Pa. Aug. 22, 2013) (“Mr. Collura has failed to identify

any similarly situated individual whom [Defendants] ha[ve] treated differently. . . .

Accordingly, Mr. Collura’s Equal Protection claim amounts to mere ‘general

accusations’ which are insufficient to prevail on a § 1983 claim.”), aff’d sub nom.

Collura v. Maguire, 569 F. App’x 114 (3d Cir. 2014).

F

A defendant in a civil rights action must be personally involved in the alleged

wrongs. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal

involvement of each defendant in the alleged constitutional violation is a required

element and a plaintiff must allege how each defendant was involved in the events and

occurrences giving rise to the claims). Indeed, “[b]ecause vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.”

Iqbal, 556 U.S. at 676. The personal involvement of a defendant in a § 1983 action may

be shown “through allegations of personal direction or of actual knowledge and

acquiescence.” Rode, 825 F.2d at 1207. Moody must allege LaValley-Hill’s “personal

involvement in the alleged wrongdoing; liability cannot be predicated solely on the

operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)

(quoting Rode, 845 F.2d at 1207).

Here, Moody does not allege any factual details about LaValley-Hill’s

involvement in the lodging of the detainer. Rather, he only alleges that the acts of the

Pennsylvania Parole Board to “coerce” him to sign a waiver agreement when he was

arrested in January 2015 was “done to [him] by the PA Parole Board under the

Director, Tracey LaValley Hill’s discretion.” (ECF No. 1 at 2.) Thus, Moody has not

pled a plausible constitutional claim against LaValley-Hill. See Underwood, 2021 WL

1197697, at *3 (“Alleging a mere hypothesis that an individual defendant had personal

knowledge or involvement in depriving the plaintiff of his right is insufficient to

establish personal involvement.”) (citing Rode, 845 F.2d at 1208).

To the extent that Moody seeks to assert a claim against LaValley-Hill based on

a supervisory liability theory, he has failed to allege a plausible claim. There are “two

general ways in which a supervisor-defendant may be liable for unconstitutional acts

undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d

Cir. 2014), reversed on other grounds by Taylor v. Barkes, 135 S. Ct. 2042 (2015). First,

a supervisor may be liable if he or she “with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,

372 F.3d 572, 586 (3d Cir. 2004) (alteration in original)). “Second, a supervisor may be

personally liable under § 1983 if he or she participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and

acquiesced in the subordinate’s unconstitutional conduct.” Id. Moody does not allege

that LaValley-Hill, with deliberate indifference to the consequences, maintained a

policy, practice or custom that resulted in the conduct that allegedly violated Moody’s

constitutional rights, nor does he allege that LaValley-Hill participated in the alleged

improper conduct. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(explaining that “a complaint must do more than allege the plaintiff’s entitlement to

relief,” rather, “[a] complaint has to ‘show’ such an entitlement with its facts.”).

IV

For the foregoing reasons, the Court will grant Moody leave to proceed in forma

pauperis and dismiss his Complaint in its entirety pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii). Moody’s request to invalidate the detainer is dismissed without

prejudice to him filing a habeas petition after exhausting state remedies and his related

damages claims are dismissed without prejudice to him reasserting those claims in a

new action in the event he is able to invalidate the detainer through proper procedures.

See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016).

The Court will dismiss all remaining claims with prejudice because Moody

cannot cure the legal deficiencies in those claims, with the exception of a due process

claim he may be raising based on the waiver he signed upon his arrest. Since the

factual contours of that claim are too unclear for the Court to address at this time,

Moody will be given leave to file an amended complaint as to that claim. Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.