DISCO v. THOMPSON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

RICHARD ANTHONY DISCO,

) Civil Action No. 2:19-cv-00130

)

Plaintiff,

)

)

v.

) Magistrate Judge Lisa Pupo Lenihan

)

SHELLY LEE THOMPSON, et al.,

)

) ECF No. 33

Defendants.

)

MEMORANDUM OPINION ON DEFENDANTS’ MOTION TO DISMISS

For the reasons set forth herein, Defendants’ Motion to Dismiss the Complaint (ECF No.

33) will be granted as to Plaintiff’s (1) claims against individual Defendants in their official

capacities or against the Defendant Parole Board, and (2) claim for damages for mental or

emotional injury, and said Motion will be otherwise denied. More specifically, the Court finds

that pro se Plaintiff’s §1983 claim for Constitutional violation of his Fourteenth Amendment due

process rights is sufficient to survive said Motion. In so concluding, the Court has thoroughly

reviewed the parties’ briefings and given pro se Plaintiff all due consideration.

I. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT

A. Factual History

Plaintiff Richard Anthony Disco (“Disco” or “Plaintiff”), an inmate currently

incarcerated at the State Correctional Institution at Fayette, filed this civil rights action regarding

the sentence recalculation made by Defendant Shelly Lee Thompson (“Thompson”), a Records

Office Specialist employed by the Pennsylvania Department of Corrections (the “DOC”), and

implemented by Defendant Doe, an employee of the Pennsylvania Board of Probation and Parole

(the “Parole Board”). As set forth in relevant portions of Plaintiff’s September 3, 2019 Amended

Complaint, ECF No. 32, Plaintiff was scheduled for a release interview with the Parole Board in

November, 2015, in accordance with his eligibility for parole on his minimum release date of

March 23, 2016. Subsequent to cancellation of that meeting without explanation, Plaintiff

learned that his sentence credit on a prior (“original”) sentence had been modified by Defendant

Thompson in October, 2015 and that his current sentence – and thus his current minimum and

maximum release dates – had been extended by two years and nine months. Thus, Plaintiff’s

minimum release date was changed to December 31, 2018 and his release interview cancelled.

The Amended Complaint exhibits indicate that the Defendants’ “recomputations” related to a

complex myriad of: Plaintiff’s parole violation(s), credit “removal” and “reapplication”, the

DOC’s correction of its own prior calculation “error”, and the Parole Board’s recission(s) and

reestablishment(s) of its own related actions. See e.g., infra n. 2. At bottom, it appears to this

Court that following the DOC’s October, 2015 recalculation of credits, the Defendants (1)

extended Plaintiff’s original sentence “maximum [sentence] date” from August 4, 2006 to May

14, 2009 (although his maximum sentence on the original sentence had been designated as

completed on August 4, 2006, i.e. approximately nine years prior),1 (2) correspondingly

extended the start date of his “new conviction” sentence from August 5, 2006 to May 15, 2009,

and (3) thus extended his current sentence minimum and maximum release dates by the same 33

months. See Disco v. Pennsylvania Board of Probation and Parole, No. 1615-CD-2016,

1 This action was later at the crux of the Commonwealth Court’s due process concerns, and the

basis of its reversal. See discussion, infra.

Unreported Memorandum Opinion, January 8, 2018; ECF No. 32, Ex. C (the “Commonwealth

Court Opinion”).2 To be clear then, it appears that credit for 33 months incarceration time served

by Plaintiff was rescinded from his current sentence on the basis of DOC employee Thompson’s

credit recalculation. See generally Commonwealth Court Opinion (more fully explicating the

“complex sentencing history” of the case and summarizing that: “Based on DOC’s [credit]

restructures, the Board changed Disco’s maximum sentence date for his Original Sentence -

received in January 1986 and served in August 2006 - without intervening parole violations or

sentencing orders from the courts.”); id. at 13 (“The maximum sentence date on his Original

Sentence is relevant because it dictates the effective date of his Current Sentence . . . .”).

Plaintiff’s timely filed grievance was denied,3 but his appeal to the Pennsylvania

Commonwealth Court was ultimately granted. As Plaintiff correctly notes, the Commonwealth

Court Opinion observed that: “It is axiomatic that an inmate may not serve additional time over

the time ordered by the sentencing courts.” The Court further observed that it appeared the

DOC’s “greatly delayed restructuring of credits” had been made without an intervening Court

order, that “[s]ignificantly, DOC did not believe there would be any material change to Disco’s

sentence”,4 and that the Board offered no other explanation or authority for its alteration of

2 The Commonwealth Court Opinion notes that on June 8, 2006, Disco (a repeat theft offender

with multiple technical parole violations) was resentenced by the trial court “to an aggregated

term of 10-20 years”. This was his “new” or “current” sentence. Opinion at 3.

3 See ECF No. 37-3 (Pennsylvania Department of Corrections First Appeal Decision, Feb. 24,

2017). The DOC denied Plaintiff’s appeal of the extension of his sentence and provided a

somewhat convoluted account of the DOC’s positions on its Sentence Computation Unit’s

recalculations, while acknowledging that the DOC had been incorrect as to a prior recalculation

which Plaintiff had successfully disputed. See also text supra.

4 Opinion at 3 (quoting DOC’s writing that “the [B]oard could just note the restructure of the

computation . . . and close out the case as of 8/4/06”).

Disco’s sentence dates.5 Finally, the Court noted that Disco “completed serving his Original

Sentence on August 4, 2006” and that he did so “in accordance with sentencing court orders.”

The Commonwealth Court reversed the Board’s Order, and Plaintiff’s prior sentence dates were

reinstated. See Commonwealth Court Opinion (“Mindful of due process principles and absent

any record support for requiring a change to a fully served sentence, we discern merit in Disco’s

appeal.”).6

Plaintiff states that his minimum release interview date “was taken away because the

Defendants decided to alter a sentence that expired 10 years earlier.” ECF No. 37 at 1. The

pleadings of record do not reflect if or when a minimum release interview was provided to

Plaintiff following the Commonwealth Court’s reversal of the Board’s Order, more than two

years after cancellation of Plaintiff’s November 2015 release interview.7

In his Amended Complaint, Plaintiff seeks “punitive damages in excess of $100,000”, but

there is nothing in his pro se complaint to suggest the designation of the damages as “punitive”

was purposefully to the exclusion of other damages (e.g., compensatory) to which Plaintiff could

plausibly be entitled. Cf. Section II, infra, regarding the liberality afforded in construing a pro se

Plaintiff’s complaint; Section III(D), regarding Defendants’ grounds for dismissal.

5 Opinion at 12 (“Of note, the Board cites no legal authority to support alteration of a sentence

that has been completed almost a decade earlier.”).

6 Plaintiff filed a second grievance in May 2018, approximately three months after the

Commonwealth Court’s decision, which was also denied. Cf. ECF No. 37 at 6 (referencing

Complaint Ex. F-8).

7 Cf. ECF No. 37 at 8 (“It took the Plaintiff 28 months to have this matter corrected.”)

B. Procedural History

Plaintiff commenced this civil action on February 6, 2019. Defendants’ April 29, 2019

Motion to Dismiss, ECF No. 12, was rendered moot when Plaintiff was granted leave to file an

Amended Complaint (by Order at ECF No. 21) which was ultimately docketed on September 3,

2019. ECF No. 32. See also ECF No. 26 (Order dismissing ECF No. 12 as moot). The pending

Motion to Dismiss, together with Defendants’ Brief in Support, was filed on September 4, 2019.

ECF No. 33 and 34, respectively. Plaintiff’s Response was filed on November 19, 2019. ECF

No. 37. Accordingly, Defendants’ Motion is ripe for disposition.

II. STANDARD OF REVIEW

The United States Court of Appeals for the Third Circuit summarized the standard to be

applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of

Civil Procedure, a plaintiff must come forward with “a short and plain statement

of the claim showing that the pleader is entitled to relief.” As explicated in

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible”

claim for relief, and “[a] claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Although “[f]actual allegations must be

enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations

that raise a reasonable expectation that discovery will reveal evidence of the

necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations

omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710

F.3d 114, 117–18 (3d Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).

In addition to the complaint, courts may consider matters of public record and other

matters of which a court may take judicial notice, court orders, and exhibits attached to the

complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and

Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v.

Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider

indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension

Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v.

Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of

which they may take judicial notice, including records and reports of administrative bodies, and

publicly available records and transcripts from judicial proceedings ‘in related or underlying

cases which have a direct relation to the matters at issue.’”) (citations omitted). More

specifically, the Court may take judicial notice of other court records without converting a

12(b)(6) motion to dismiss into a motion for summary judgment.

When considering pro se pleadings, a court must employ less stringent standards than

when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).

When presented with a pro se complaint, the court should construe the complaint liberally and

draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.

Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the

applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.

Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d

244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this

is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently

alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality,

pro se litigants are not relieved of their obligation to allege sufficient facts to support a

cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.

2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Finally, the United States

Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a

District Court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it

must sua sponte “permit a curative amendment unless such an amendment would be inequitable

or futile.” 515 F.3d 224, 245 (3d Cir. 2008).

III. ANALYSIS

A. Section 1983

Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations

of federal law committed by state actors. In pertinent part, § 1983 provides 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. ...

Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating

violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85 (2002); Kneipp v.

Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must

show a deprivation of a “right secured by the Constitution and the laws of the United States ... by

a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d

1137, 1141 (3d Cir.1995)). There is no dispute that the individual Defendants were acting under

color of state law at all times relevant to this litigation, and - as discussed below – with the

exception of limitations on (1) § 1983 actions against individuals in their official capacities or

administrative agencies and (2) prisoners’ § 1983 damage claims for mental or emotional injury

absent physical injury - Defendants’ other grounds for dismissal do not pass muster.

Accordingly, this Court’s § 1983 analysis turns primarily on whether Plaintiff has alleged a

plausible violation of his federal rights and in particular of a depravation of a protected liberty

interest without due process of law.

B. Fourteenth Amendment

The Fourteenth Amendment provides, in relevant part, that “[n]o State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST.

amend. XIV, §1. Here, Plaintiff asserts violations of his due process rights based on alteration to

a sentence served and deprivation without due process of the release interview scheduled

pursuant to his correct minimum release date. See ECF No. 32 and 37.

The Third Circuit Court of Appeals has explained that:

[t]he boundary between Fourth Amendment and Fourteenth Amendment claims

is, at its core, temporal. The Fourth Amendment forbids a state from detaining an

individual unless the state actor reasonably believes that the individual has

committed a crime—that is, the Fourth Amendment forbids a detention without

probable cause. See, generally, Bailey v. United States, –––U.S. ––––, 133 S. Ct.

1031, 1037, 185 L.Ed.2d 19 (2013). But this protection against unlawful seizures

extends only until trial. See Schneyder v. Smith, 653 F.3d 313, 321 (3d Cir. 2011)

(observing that post-conviction incarceration does not implicate the Fourth

Amendment). The guarantee of due process of law, by contrast, is not so limited

as it protects defendants during an entire criminal proceeding through and after

trial. Pierce v. Gilchrist, 359 F.3d 1279, 1285–86 (10th Cir.2004) (“The initial

seizure is governed by the Fourth Amendment, but at some point after arrest, and

certainly by the time of trial, constitutional analysis shifts to the Due Process

Clause.” (internal citation omitted)).

Halsey v. Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014).

Accordingly, as Plaintiff’s §1983 claim relates to a period of confinement subsequent to

arrest, the claim is properly analyzed under the Fourteenth Amendment. To state a substantive

due process claim under §1983, a plaintiff must allege facts that plausibly establish: (1) that the

particular interest at issue is protected by the Fourteenth Amendment, and (2) that the

government's deprivation of that protected interest shocks the conscience. Connection Training

Serv. v. City of Phila., 358 F. App’x 315, 319 (3d Cir. 2009); see Gottlieb v. Laurel Highlands

Sch. Dist., 272 F.3d 168, 172 (3d Cir.2001) (substantive due process is violated when state

conduct is “arbitrary, or conscience shocking, in a constitutional sense”) (internal quotation

marks and citation omitted). To state a procedural due process claim, a plaintiff must allege

that: “(1) he was deprived of an individual interest that is encompassed within the Fourteenth

Amendment's protection of ‘life, liberty, or property,’ and (2) the procedures available to him did

not provide ‘due process of law.’” Mulholland v. Government Cty. of Berks, Pa., 706 F.3d 227,

238 (3d Cir. 2013). See also Evans v. Sec'y Pennsylvania Dep't of Corr., 645 F.3d 650, 659 (3d

Cir. 2011) (noting that “[p]rocedural due process is implicated if [plaintiff] had a liberty interest

in his release that cannot be infringed without procedural protections such as notice and a

hearing” (citing Lewis, 523 U.S. at 846, 118 S.Ct. 1708) (“[T]he procedural due process

guarantee protects against ‘arbitrary takings.’ ”) (citing Fuentes v. Shevin, 407 U.S. 67, 82, 92

S.Ct. 1983, 32 L.Ed.2d 556 (1972)).

Defendants assert that they “did not violate Disco’s Fourteenth Amendment rights

because Disco was not detained past his maximum sentence.” ECF No. 34 at 5. More

specifically, Defendants assert that Plaintiff “does not establish a deprivation of liberty because

he does not allege that his incarceration exceeds his release date.” Id. In the course of repeating

their position that Plaintiff “has not suffered a harm”, Defendants proffer several arguments:

(1) Reincarceration of a prisoner who is released/paroled in error effects no due process

violation – See ECF No. 34 at 6-7 (citing Evans v. Sc. Pa. Dept. of Corr., 645 F.3d 650 (3d Cir.

2011). This observation, while correct, provides little support for Defendants’ position.

Reincarceration of a prisoner to continue to correctly serve a sentence to which he was

committed with due process8 does not inform the question of a due process violation where a

prisoner was allegedly denied, without due process, an opportunity for release because his Court-

ordered sentence dates were altered.

Similarly, the holding in Evans itself, i.e., that a delayed correction to the “improper start

date of a sentence for a still-imprisoned convict” to eliminate “the unlawful credit given” as the

result of the Commonwealth’s “record-keeping mistake” does not support Defendant’s position.

Evans, 645 F.3d at 661, 664 (concluding that Evans had “no constitutionally protected liberty

interest in being released contrary to Pennsylvania law”, i.e., earlier than “legally proper

parole”); id. at 662 (“A defendant ... does not automatically acquire a vested interest in a shorter,

but incorrect sentence. . . .”).9 Cf. Commonwealth Court Order at 10-11 (noting that delay alone

does not preclude DOC or the Board from correcting recordkeeping errors to ensure an inmate

serves his court-ordered term”); id. at 11 (finding the facts in Disco “materially distinguishable”

from those of Forbes v. Pa. Bd. Of Prob. & Parole, 931 A.2d 88 (Pa. Cmwlth. 2007) wherein

error was corrected “to require that [the inmate] serve the sentence that he actually received”).

8 See Evans, 645 F.3d at 660 (“In Vega v. United States, a prisoner, through no apparent fault of

his own, was erroneously released . . . for approximately two years before he was arrested to

serve the remainder of his sentence. 493 F.3d 310, 313 (3d Cir.2007). We concluded that the

mistaken release of a prisoner does not prevent re-incarceration if time remains on the prisoner's

sentence.”) (emphasis added).

9 See also id. (“It is well-established that a prisoner cannot escape punishment simply because

the court committed an error in passing sentence. United States v. Busic, 639 F.2d 940, 946 (3d

Cir.1981) (citing Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947)).

Neither should one escape punishment when the error at issue is not in the sentence itself but

only in the record keeping associated with the sentence.”) (emphasis added); id. (rejecting

temporal limit “on the correction of an administrative mistake so that a lawful sentence can be

served”).

(2) Reincarceration of a prisoner who is released/paroled on the basis of falsehoods he

presented during his parole evaluation effects no due process violation – Id. at 8 (citing Jago v.

Van Curen, 454 U.S. 14 (1981)). As with Evans, supra, this case is not supportive.10

(3) More generally, denial of parole itself does not constitute a due process violation

because “parole is not a constitutionally protected liberty interest under Pennsylvania law” and

an inmate “does not have a clear legal right to the grant of parole.” See id. at 7 (quoting Coady v.

Vaughn, 770 A.2d 289 (Pa. 2001)),11 id. (citing Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996).

This argument is more relevant to Defendants’ position. However, this line of cases derives

from the relationship between the Parole Board and the Courts, and the wide discretion in

granting parole vested in the Parole Board.

More particularly, Defendants correctly observe that under Pennsylvania law a Board’s

decision to deny parole affects no constitutionally protected liberty interest. See Reider v. Bd. of

Probation and Parole, 514 A.2d 967, 970 (Pa.Commw. 1986)); Commonwealth v. Stark, 698

A.2d 1327, 1333 (Pa.Super.Ct.1997) (“A prisoner has no constitutional protected liberty interest

in the expectation of being released from the confinement prior to the expiration of the maximum

term of the imposed sentence.” ). Plaintiff’s Constitutional un-entitlement to a particular

determination soundly placed within the full discretion of the Parole Board does not, however,

inform his entitlement to due process with regard to an alteration of his sentence which effected

deprivation of an early release opportunity. Unlike inmates such as Reider or Stark, Plaintiff

does not challenge a Board decision denying him parole. Rather, Plaintiff challenges

10 Cf. Evans, 645 F.3d at 664 (noting that in Jago, the Supreme Court “held that, although the

inmate had suffered a grievous loss upon the rescission of his parole, he did not have a

protectable liberty interest in his anticipated parole”). Cf. also text infra at III(B)(3).

11 See id. at 487 (holding that Federal courts “are not authorized by the due process clause to

second-guess parole boards”).

Defendants’ unauthorized alteration of his judicially imposed sentence and resultant deprivation

of his opportunity to present his case for parole. See Commonwealth Court Opinion at 3; id.

(“The Board and DOC ‘are charged with faithfully implementing sentences imposed by the

courts.’”) (quoting Comrie v. Dep’t of Corr., 142 A.3d 995, 1001 (Pa. Cmwlth. 2016)).

First, as pointedly noted by the Commonwealth Court, Defendants proffered no authority

whatsoever for their October 2015 extension of the maximum sentence date for the original

sentence Disco completely served in August 2006. And “[i]t is axiomatic that an inmate may not

serve additional time over the time ordered by the sentencing courts.” Commonwealth Court

Opinion at 12. An assertedly detrimental effect of Defendants’ action was the cancellation of

Plaintiff’s November, 2015 release interview scheduled in keeping with his current Court-

sentence minimum and maximum release dates.

Second, the Third Circuit has recognized that an inmate has a fundamental liberty interest

in his eligibility for parole. See Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969) (holding

that failure to inform defendant, prior to entry of guilty plea on narcotics charges, that he would

be ineligible for parole vitiated plea). Id. at 192-93 (concluding that a pleader “must be apprised

of the period of required incarceration”), id. (noting that “except for capital punishment, no other

consequence can be as significant to an accused as the period of possible confinement . . . . [and]

the knowledge of ineligibility for parole is as necessary to an understanding of the plea as is the

knowledge of the maximum sentence possible.”).12 As the Circuit Court made clear, an inmate’s

12 Cf. Little v. Warden, 117 Nev. 845, 34 P.3d 540 (2001) (failure to advise does not warrant

reversal where totality of circumstances demonstrate defendant was aware that he was

ineligible); id. at 849 (disagreeing that court has duty to advise on grounds that “parole is a

collateral consequence not within the purview of the . . . court’s sentencing discretion”). Cf. also

United States v. Sanclemente-Bejarano, 861 F.2d 206, 208–09 (9th Cir. 1988) (holding that

under Fed. Rule Crim. Proc. 11 court advice about eligibility for parole is not required before

minimum sentence date carries a de jure effect and Constitutionally-protected interest. Cf. Hill

v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (plea entered on advice of

counsel was not invalidated where petitioner failed to show prejudice by counsel’s

misinformation as to parole ineligibility).13 The Supreme Court’s analysis of petitioner’s

evidence concerning reliance in Hill would be immaterial if the petitioner did not have a

cognizable liberty interest in the terms of his eligibility for parole.

Third, this Circuit has recognized that the Board’s broad discretion notwithstanding, an

inmate holds a protected interest in receiving a parole decision free from constitutional error.

Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996) (concluding that a parole denial can give rise to

a due process deprivation if it is based on constitutionally impermissible reasons); id. at 139-40

(finding that an “agency violates substantive due process in grounding its action on

“constitutionally impermissible reasons”) (citing Block v. Potter, 631 F.2d 233, 236 (3d

Cir.1980)). Plaintiff had a right – as noted by the Commonwealth Court – to due process as to

any alteration of his original sentence. It cannot be denied that extending the maximum term of a

sentence of incarceration affects a core liberty interest. Plaintiff has sufficiently alleged that he

has suffered a detriment in that the Defendants’ reassignment of credit for time served formed

the sole basis for the Parole Board’s rescission of Plaintiff’s opportunity for parole. That is,

Plaintiff has sufficiently alleged that the Board implemented the unauthorized alteration of

accepting guilty plea) (citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)). But cf. infra (discussing

Hill).

13 Cf. also id. at 62-63 (White, J. (concurring) (had petitioner pled that his counsel knew of his

ineligibility, he would have been entitled to a hearing, as failure to inform client of relevant law

satisfies first prong of Strickland and petitioner “clearly alleged more than sufficient facts” to

show prejudice)).

Plaintiff’s sentence dates as an absolute bar to his consideration for parole, effectively denying it

for an impermissible reason.14

In sum, the Third Circuit has recognized a protected liberty interest in eligibility for – as

distinct from receipt of – parole. And although Defendants correctly assert that Plaintiff does not

have a 14th Amendment right to a particular parole determination, they err in asserting that he has

no 14th Amendment right to be considered for release in accordance with sentencing by the

Court, rather than barred by an impermissible alteration of that sentence.

(4) “The minimum sentence is merely a calculation of the earliest time when the inmate

can become eligible for parole consideration.” – ECF No. 34 at 7 (citing Folk v. Atty. Gen. of

Commonwealth of Pa., 425 F.Supp.2d 663, 676 (W.D. Pa. 2006). Indeed, his/her minimum

sentence is the time when an inmate becomes eligible for parole - and this forms the basis of

Plaintiff’s claim. See supra. See also ECF No. 37 at 7 (“[I]t was not [within the authority of] the

position of Defendant Thompson to take away [Plaintiff’s] interview and his minimum release

date without court ordered authorization. In fact, no one possess[es] the authority to alter an

expired sentence 10 years after it was expired.”).

(5) “Disco does not allege that he would have been paroled in 2016 if his minimum date

would have remained, but if he did the argument should have little traction considering his

sentence was recomputed and he still remains in prison.” ECF No. 34 at 7. The Court notes that

Defendants do not indicate if or when Plaintiff was provided a release interview subsequent to

14 See also id. at 142 (collecting cases and recognizing “that an allegation that parole was denied

in retaliation for the successful exercise of the right of access to the courts states a cognizable

claim for relief”). Cf. Commonwealth Court Opinion at 5, n. 3 (“The timing of the DOC’s review

coincides with an original jurisdiction action Disco filed against DOC on September 30, 2015 . . .

in which he challenged the amount of backtime . . . [as] more than his maximum sentence

allowed without an order from a court or the Board. DOC filed preliminary objections, which

this Court sustained [in April 2016]”).

the Commonwealth Court Opinion in his favor. If Defendants are asserting in support of their

Motion to Dismiss, either (a) that Plaintiff must establish that he was deprived of early release,

rather than opportunity/consideration for early release and/or (b) that Plaintiff’s continued

incarceration establishes that he would not have been released had he been afforded the interview

scheduled, Defendants have failed to provide any support for either assertion.

C. Qualified Immunity

Defendants’ Brief in Support asserts the additional defense of qualified immunity. See

ECF No. 34 at 9-10. The doctrine of qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555

U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity operates to ensure that,

before they are subjected to suit, government officials are put on notice that their conduct is

unlawful. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

“Qualified immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555

U.S. at 231, 129 S.Ct. 808. “If the law was clearly established, the immunity defense ordinarily

should fail, since a reasonably competent public official should know the law governing his

conduct.” Harlow, 457 U.S. at 818–19, 102 S.Ct. 2727. In determining whether qualified

immunity applies, the courts conduct a two-pronged inquiry. Pearson, 555 U.S. at 232, 129 S.Ct.

808; Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must

determine “whether the facts that the plaintiff has alleged ... or shown ... make out a violation of

a constitutional right.” Pearson, 555 U.S. at 232, 129 S.Ct. 808 (citing Saucier v. Katz, 533 U.S.

194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); Spady, 800 F.3d at 637 (quoting Pearson,

555 U.S. at 232, 129 S.Ct. 808). “If the plaintiff fails to make out a constitutional violation, the

qualified immunity inquiry is at an end; the [government official] is entitled to immunity.”

Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).

The crux of the “clearly established” analysis “is whether officers have ‘fair

notice’ that they are acting unconstitutionally.” Mullenix, 136 S.Ct. at 314. In other

words, an officer is not entitled to qualified immunity if “at the time of the challenged

conduct, the contours of [the] right [were] sufficiently clear that every reasonable

official would have understood that what he [was] doing violates that right.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (alteration and internal

quotation marks omitted). “We do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional question beyond debate.” Id.

“The dispositive question is whether the violative nature of particular conduct is clearly

established. This inquiry must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Mullenix, 136 S.Ct. at 308 (citation and internal

quotation marks omitted). The Constitutional principle that an order of the Court is to

be implemented rather than altered is clearly established. The specific question

underlying this case is whether an official charged with implementing a Court’s

judgment of sentence has fair notice that s/he may not recalculate or extend the

prisoner’s sentence without further Court Order or other authority.

Given the related law identified in this Court’s initial inquiry, supra, and the undeveloped

record, the Court finds Defendants’ request for a determination of their entitlement to qualified

immunity at best premature.15 Compare ECF No. 34 at 10 (asserting Defendants’ entitlement to

qualified immunity because defense counsel “is unaware of a precedent that holds it is

unconstitutional to incorrectly calculate a sentence that does not render an injury to the Plaintiff

because it did not result in an inmate remaining incarcerated past his maximum sentence.”).

D. Defendants’ Other Grounds for Dismissal

First, Defendants correctly assert that Section 1983 claims against the individual

Defendants acting in their official, rather than individual, capacities must be dismissed. See ECF

No. 34 at 4 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Their Brief in

Support also correctly asserts that the Parole Board, as an administrative agency of the

Commonwealth of Pennsylvania, is immune from suit pursuant to the Eleventh Amendment. Id.

(citing Hans v. Louisiana, 134 U.S. 1 (1890)). See Hafer v. Melo, 502 U.S. 21, 25 (1991); Estate

of Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850, 854 (3d Cir. 2014) (“[S]tate

agencies and their officials acting in their official capacity are not” persons for purposes of §

1983.) Although Plaintiff’s Response appears to clearly indicate his intention to bring only a

permissible claim against the individual Board employee who implemented his sentence

modification (see ECF No. 37 at 5), his Amended Complaint “move[d] to . . . includ[e] the

15 The Court also notes that its initial inquiry discovered no Section 1983 case relating a factual

background in which a prisoner’s sentence served was altered and extended without authority.

In assessing qualified immunity the Court must consider the “uniqueness” of Plaintiff’s case; i.e.,

an absence of evidence that other Departments of Correction and/or Parole Boards believe the

law entitles them to take the actions complained of sub judice without Court Order. See infra,

Section III(C); see also Commonwealth Court Opinion at 1 (noting “the unique circumstances”

of the “factually intricate appeal”).

unidentified party from the [Parole Board] as Jane or John Doe, . . . in his or her individual or

official capacity . . . [w]ho acted under the color of law when he or she changed a maximum

expiration date on a sentence that was expired . . . .” ECF No. 32 at 2. The Parole Board thus

remained as a named Defendant and formal dismissal of it as a Defendant is also appropriate.16

Second, Defendants make a little more than blanket assertion of entitlement to dismissal

of this entire action on statute of limitations grounds. More specifically, Defendants provide a

spare assertion that Plaintiff’s claim is barred by Pennsylvania’s two-year statute of limitations

because “his cause of action against the Board occurred on December 8, 2015 and against

Thompson on February 22, 2016.” ECF No. 34 at 5. The Court notes Plaintiff’s explication of

his timely pursuit and exhaustion of administrative remedies, the documents of record provided

in support, and the date of the Commonwealth Court’s Opinion reversing the Parole Board’s

action and indicating that the unique circumstances of Plaintiff’s claim raised due process

considerations. Defendants provide no factual explanation or legal argument in support of their

assertion of a time bar. To the contrary, their sole citation is to the unrelated case of Kach v.

Hose, 589 F.3d 626, 634 (3d Cir. 2009) (finding psychological problems of plaintiff allegedly

violated by her middle school security guard insufficiently incapacitating to toll statute of

limitations). The Court observes that a Pennsylvania §1983 plaintiff’s claim is subject to the

16 To the extent Defendants intend to raise - on the basis of the service requirements of Fed. R.

Civ. P. 4(m) - a dismissal or other challenge to Plaintiff’s claim against the John/Jane Doe in

Doe’s individual capacity, such a challenge is unsupported in Defendants’ Brief and appears

without merit. ECF No. 34 at 2, n. 1. When a plaintiff lists a defendant’s identity as Doe

because his/her name is not known, the plaintiff should be afforded the opportunity to identify

said defendant through discovery; only when upon completion of discovery the Doe remains

unascertained should that unnamed party be dismissed. See, e.g., Alston v. Parker, 363 F.3d 229,

233 n. 6 (3d Cir. 2004); Johnson v. City of Erie, Pa., 834 F.Supp. 873, 878 (W.D. Pa. 1993);

Sheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa. 1990). Cf. ECF No. 37 at 5 (“Plaintiff

is unable to identify the actual person that Defendant Thomson contacted from the Board when

she modified the expired sentence.”).

Commonwealth’s personal injury statute of limitations which requires that an action be brought

within two years of accrual of the claim (e.g., of a plaintiff’s becoming aware of the allegedly

unconstitutional acts). 42 Pa. Cons.Stat. § 5524(7). However, this Circuit has expressly

held that the Prison Litigation Reform Act of 1995 (the “PLRA”), which requires that a

prisoner exhaust administrative remedies prior to filing a §1983 claim, creates “a statutory

prohibition that tolls Pennsylvania’s statute of limitations”. Pearson v. Sec'y Dep't of Corr., 775

F.3d 598, 603 (3d Cir. 2015). Defendants’ unsupported assertion of grounds for dismissal is

therefore without merit.

Third, Defendants also assert entitlement to a Rule 12(b)(6) dismissal of Plaintiff’s claim

of mental or emotional injury on grounds that Defendant has not suffered an “actual” physical

injury: “Disco may not recover damages for a mental or emotional injury without a prior

showing of physical injury.” ECF No. 34 at 5-6 (citing 42 U.S.C. Sect. 1997e(e)).

As the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, bars a prisoner from

bringing a civil action “for mental or emotional injury suffered while in custody without a prior

showing of physical injury,” any such claim will be dismissed. See Amended Complaint, ECF

No. 32, at 2 (asserting violation of right to due process and infliction of “emotional distress and

mental anguish”).

Fourth, Defendants assert that Plaintiff cannot establish a substantive due process

violation because he could not evidence “behavior [that] is so egregious and so outrageous that it

may be said to shock the conscience.” ECF No. 34 at 6. The undeveloped record does not

preclude a set of facts by which Plaintiff might state a substantive due process claim, and

Defendants’ request for dismissal on this ground is therefore premature.

Fifth and finally, Defendants seek dismissal on grounds that Plaintiff cannot meet the

“evil motive or intent” or “reckless or callous indifference” standard to show entitlement to

punitive damages, the only damages named inthe pro se Complaint. 7d. at 8 (citing Smith v.

Wade, 461 U.S. 30 (1981)). As noted supra, a pro se Complaint in entitled to liberal and fair-

inference-based reading, and sua sponte leave to amended where appropriate. Moreover, it is not

yet clear at this juncture that Plaintiff would be unentitled to punitive damages under any

possible factual development of his claim. Plaintiff is therefore not yet precluded from

discovering evidence that Defendants’ behavior meets the standard required for punitive

damages.

V. CONCLUSION

As more specifically set forth above, the Court concludes that Plaintiffs Fourteenth

Amendment due process claim under §1983 is not precluded as a matter of law and that Plaintiff

has identified facts that suggest a plausible violation of those rights. Consequently, Defendants’

Motion to Dismiss, ECF No. 33, will be granted as to (1) claims against the individual

Defendants in their official capacities or against the Defendant Parole Board, and (2) any claims

for damages for mental or emotional injury. Defendants’ Motion will otherwise be denied by

separate Order.

Dated: April 7, 2020 BY THE COURT:

Cie

LISA PUPO LENIHAN

United States Magistrate Judge

20

cc: Richard Anthony Disco

JH-1908

SCI Fayette

48 Overlook Dr.

LaBelle, PA 15450

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