Acevedo v. Strickland

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID JOSEPH ACEVEDO, No. 4:20-CV-1221

Plaintiff. (Judge Brann)

v.

CHAD STRICKLAND, et al.,

Defendants.

MEMORANDUM OPINION

JULY 17, 2020

Presently before the Court is a civil rights complaint pursuant to 42 U.S.C. §

1983, filed by David Joseph Acevedo (“Acevedo” or “Plaintiff”), a state inmate

currently housed at the State Correctional Institution at Dallas, Pennsylvania.1

Acevedo seeks to proceed in forma pauperis.2

For the reasons set forth below, the motion to proceed in forma pauperis will

be granted for the sole purpose of the filing of the action and the complaint will be

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. STANDARDS OF REVIEW

A federal court may properly dismiss an action sua sponte under the screening

provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) if “the action is frivolous

1 Doc. 1.

2 Doc. 2

or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant who is immune from such relief.” 3

In dismissing claims under §§ 1915(e)(2) and 1915A, district courts apply the

standard governing motions to dismiss brought pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure.4 In rendering a decision on a motion to dismiss,

a court should not inquire “whether a plaintiff will ultimately prevail but whether

the claimant is entitled to offer evidence to support the claims.”5 The court must

accept as true the factual allegations in the complaint and draw all reasonable

inferences from them in the light most favorable to the plaintiff.6 In addition to

considering the facts alleged on the face of the complaint, the court may consider

“documents incorporated into the complaint by reference, and matters of which a

court may take judicial notice.”7

3 Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).

4 See, e.g., Smithson v. Koons, Civ. No. 15-01757, 2017 WL 3016165, at *3 (M.D. Pa. June 26,

2017) (stating “[t]he legal standard for dismissing a complaint for failure to state a claim under

§ 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c)(1) is the same as that for dismissing a

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”); Mitchell v.

Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010) (explaining that when dismissing a

complaint pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under

Federal Rule of Civil Procedure 12(b)(6)”); Tourscher v. McCullough, 184 F.3d 236, 240 (3d

Cir. 1999) (applying FED.R.CIV.P. 12(b)(6) standard to dismissal for failure to state a claim

under § 1915(e)(2)(B)).

5 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996).

6 See Phillips v. Cty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

7 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

However, “[t]he tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.”8 “Under the pleading

regime established by Twombly and Iqbal, a court reviewing the sufficiency of a

complaint must take three steps. First, it must ‘tak[e] note of the elements [the]

plaintiff must plead to state a claim.’ Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second,

it should identify allegations that, ‘because they are no more than conclusions, are

not entitled to the assumption of truth.’ Id. at 679, 129 S.Ct. 1937. See also Burtch

v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of

the elements of a claim are not entitled to the assumption of truth.” (citation and

editorial marks omitted)). Finally, ‘[w]hen there are well-pleaded factual allegations,

[the] court should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.’ Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.”9

Deciding whether a claim is plausible is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”10

Because Acevedo proceeds pro se, his pleading is liberally construed and his

complaint, “however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.”11

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”).

9 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (footnote omitted).

10 Iqbal, 556 U.S. at 681.

11 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

II. ACEVEDO’S COMPLAINT

Acevedo alleges as follows:

On Dec 11th, 2018 I was sentenced to 10 to 23 months incarceration and

awarded 510 days towards the conviction. On January 15th 2019 I was

paroled to my state parole detainer. On March 21st, 2019, I received a

board Action to serve 9 months or to serve 11 months 28 days backtime.

Before receiving the board Action I signed a waiver. My new Max date

was recomputed to Jan 12th, 2020. On Nov 7th, 2019 parole rescinded

the March board Action Due to Withdraw of Plea and took back credit

for my street time which was previously granted to me. It was

explained to me on an Administrative Appeal that I signed my waiver

after I recieved [sic] the March 21st board Action Although it was before

the date on there [sic] response to the Administrative Appeal. The date

was put on that form by Chad Strickland and both decisions are

conflicting and “bias” and Retaliation tactic to use a withdrwl [sic] of

plea against a person.12

He alleges the above conduct constitutes false imprisonment, involves deliberate

indifference, official oppression, and falsifying documents, and violates the due

process and double jeopardy clauses of the United States Constitution.13 He further

alleges that he has suffered emotional distress and seeks compensation in the amount

of $450.00 for every day he has served beyond his January 12, 2020 maximum

date.14

III. DISCUSSION

Section 1983 of Title 42 of the United States Code offers private citizens a

12 Doc. 1, p. 4.

13 Id. at 5.

14 Id.

cause of action for violations of federal law by state officials.15 The statute provides,

in pertinent part, as follows:

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....16

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.”17

Acevedo’s claim is not cognizable under §1983. “[H]arm caused by actions

whose unlawfulness would render a conviction or sentence invalid” is not cognizable

under §1983, unless the conviction or sentence was “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.”18 Heck applies to claims involving monetary damages as well as

15 42 U.S.C. § 1983.

16 Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d

1199, 1204 (3d Cir. 1996).

17 West v. Atkins, 487 U.S. 42, 48 (1988).

18 Heck v. Humphrey, 512 U.S. 477, at 486–87 (1994); see also Leamer v. Fauver, 288 F.3d 532,

542 (3d Cir. 2002) (“whenever the challenge ultimately attacks the ‘core of habeas'—the

validity of the continued conviction or the fact or length of the sentence—a challenge, however

denominated and regardless of the relief sought, must be brought by way of a habeas corpus

petition.”).

those seeking equitable and declaratory relief.19 And it applies to parole board

decisions.20

An award or decision in Acevedo’s favor involving a decision made by the

parole board would necessarily imply the invalidity of his detention. Consequently,

he cannot pursue a civil rights action under 42 U.S.C. § 1983. Instead, following

exhaustion of his administrative remedies, his proper avenue of recourse in the

federal courts is a petition for a writ of habeas corpus filed in the federal district of

confinement.21

Based on the foregoing, Acevedo’s complaint will be dismissed for failure to

state a claim upon which relief may be granted. Under the circumstances, the Court

is confident that service of process is not only unwarranted but would waste the

increasingly scarce judicial resources that §1915 is designed to preserve.

IV. LEAVE TO AMEND

Before dismissing a complaint for failure to state a claim upon which relief

may be granted, the Court must grant the Plaintiff leave to amend his complaint

unless amendment would be inequitable or futile.22 The Court concludes that

19 See Wilkinson v. Dotson, 544 U.S. 74, 81 – 82 (2005).

20 See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006).

21 See Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973) (holding that habeas relief is available

to challenge the fact or duration of confinement).

22 See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir. 2002).

granting Acevedo leave to amend would be futile as any civil rights claim is simply

not cognizable at the present time.

V. CONCLUSION

Based on the forgoing, the complaint will be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge