Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-19-2005
Poole v. Dept of Corr
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4260
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"Poole v. Dept of Corr" (2005). 2005 Decisions. Paper 381.
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RESUBMIT HPS-61 NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4260
________________
SAMUEL T. POOLE,
Appellant
v.
D.O.C.; PA. BOARD OF PROBATION AND PAROLE;
SUPERINTENDENT PATRICK
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00096J)
District Judge: Honorable Kim R. Gibson
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
October 11, 2005
SCIRICA, CHIEF JUDGE, WEIS AND GARTH, CIRCUIT JUDGES
(Filed October 19, 2005)
_______________________
OPINION
_______________________
PER CURIAM.
Samuel T. Poole, a prisoner, appeals from the order of the United States
District Court for the Western District of Pennsylvania granting the defendants’ motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
In May 2004, Poole filed a civil rights complaint against the Pennsylvania
Department of Corrections, the Superintendent of S.C.I. Houtzdale, and the Pennsylvania
Board of Probation and Parole, alleging that they (1) tried to force him to participate in
drug rehabilitation programs that Poole’s sentencing order did not require; (2) denied him
parole in April 2003, based on his refusal to complete the prison drug rehabilitation
program, even though he had completed another drug rehabilitation program (the Green
Tree program) while he was in Delaware awaiting trial; (3) denied him parole based on
the results of an untimely and procedurally deficient technical parole violation hearing;
and (4) retaliated against him for refusing to take part in prison drug rehabilitation by
prohibiting him from attaining “2R status,” allegedly causing him to be ineligible for a
drug program in Chester, a job change, and for a transfer to another prison. He sought
damages and immediate release to a half-way house drug rehabilitation program. The
defendants moved to dismiss pursuant to Rule 12(b)(6).
The Magistrate Judge recommended dismissing the action for failure to
state a claim, finding that (1) to the extent that Poole challenged the execution of his
sentence and sought release from custody, § 1983 was not available under Preiser v.
Rodriguez, 411 U.S. 475 (1973); (2) Poole had no cognizable federally protected liberty
interest in release on parole in the absence of a state mandated expectation of release, and
(3) Poole failed to exhaust his administrative remedies on all of his § 1983 claims. By
order entered October 14, 2004, the District Court overruled Poole’s objections, adopted
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the Magistrate Judge’s Report, granted the Rule 12(b)(6) motion, and dismissed the
complaint for failure to state a claim upon which relief could be granted. Poole filed a
timely Rule 60(b) motion that the District Court denied in April 2005. Poole filed a
timely notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Poole has been granted
leave to proceed IFP on appeal. Under § 1915(e)(2)(B), the Court must dismiss an appeal
if it (i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be
granted, or (iii) seeks monetary damages from a defendant with immunity. An appeal can
be frivolous for either legal or factual reasons. Neitzke v. Williams, 490 U.S. 319, 325
(1989).
Substantially for the same reasons set forth by the District Court, we
conclude that Poole’s civil rights complaint was properly dismissed for failure to state a
claim. The District Court correctly determined that Poole’s sentencing claim was not
cognizable in a civil rights action under Preiser, as he sought immediate release from
prison. Such relief may only be granted through a writ of habeas corpus. See Coady v.
Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001).
Poole’s due process claims for damages regarding the denial of parole are
barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). If the success of a § 1983
damages suit “would necessarily imply the invalidity of [a] conviction or sentence,” a
claim is cognizable only if the plaintiff can prove that the conviction or sentence has been
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reversed, invalidated, or called into question by a grant of federal habeas corpus relief.
Heck, 512 U.S. at 486-87. Poole’s attack on the integrity of the decision to deny parole
necessarily implicates the validity of the parole decision, and he has not shown that the
decision has been invalidated.
Turning to the retaliation claim, Poole asserts in his Complaint that
correctional officers not named in this suit retaliated against him because he refused to
enter and complete the prison drug rehabilitation program. He claims that he refused to
participate in the prison drug rehabilitation program because he had already successfully
completed a program while he was incarcerated in Delaware and because he had a low
opinion of the prison program itself. Assuming that Poole exhausted his administrative
remedies, the retaliation claim is barred as to the Department of Corrections and the
Board of Probation and Parole. See Will v. Michigan Dep’t of State Police, 491 U.S. 58
(1989) (holding that states, state agencies, and state officials acting in their official
capacities are not “persons” subject to suit under 42 U.S.C. § 1983). To the extent that
Poole sues Defendant Patrick in his individual capacity for the retaliatory acts of the
nonparty officers, he fails to state a claim. The Complaint is devoid of any fact from
which we can infer that Patrick was personally involved in the alleged retaliatory acts and
Patrick is not liable under § 1983 on a theory of respondeat superior. See Rode v.
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Dellarciprete, 895 F.2d 1195, 1207 (3d Cir. 1988).1
We conclude that the District Court’s denial of Poole’s motion for relief
from judgment under Rule 60(b) was not an abuse of discretion. See Rolo v. City
Investing Co. Liquidating Trust, 155 F.3d 644, 653 (3d Cir. 1998). Relief from judgment
under Rule 60(b) is extraordinary and may be invoked only upon a showing of
exceptional circumstances. Harris v. Martin, 834 F.2d 361, 364 (3d Cir. 1988). Poole
failed to show any exceptional circumstances, and we find none on this record, that
warrant disturbing the finality of the judgment in this case.
Accordingly, because Poole’s appeal lacks arguable merit, we will dismiss
it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000). Appellant’s motion for appointment of counsel is denied.
1
In his Objections, Poole asserted for the first time that the nonparty correctional
officers retaliated against him after he filed a grievance against them by adding two non-
drug related programs to the list of prescriptive programs he must complete before he can
be eligible for release on parole. This belated retaliation claim fails as to all of the named
defendants for the same reasons that the original retaliation claim fails to state a claim
upon which relief can be granted.
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