Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-19-2005
Kemp v. McFarland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2291
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"Kemp v. McFarland" (2005). 2005 Decisions. Paper 532.
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DPS-337 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2291
__________
JAMES KEMP
aka JORREL GREEN
v.
KATHRYN MCFARLAND;
ANDREA KINCHEN;
RUBY WASHINGTON
James Kemp,
Appellant
____________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-00830)
District Judge: Honorable Robert B. Kugler
____________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
August 11, 2005
BEFORE: ROTH, BARRY and SMITH, CIRCUIT JUDGES
(Filed: September 19, 2005)
_________________
OPINION
_________________
PER CURIAM
James Kemp, proceeding pro se, appeals from the order of the United States
District Court for the District of New Jersey dismissing his civil rights complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). We will affirm.
When Kemp entered the South Woods State Prison in Bridgeton, New Jersey in
August 2003, he appeared before the prison classification committee, headed by
defendant Kinchen, and was found ineligible for reduced custody status. Kemp asserts
that Kinchen erred in determining his classification and custody status because she relied
on incomplete information provided by defendant McFarland, who failed to credit him
with having earned a high school diploma. He contends that this classification error will
add seventeen days to his time spent in prison. He alleges that defendant McFarland was
responsible for compiling accurate records and that her failure to include his educational
achievements and participation in self-help groups in his record violated his due process
rights. Kemp also alleges that he advised defendant Washington, at a parole hearing held
in October 2003, that statements made by the prosecutor as to Kemp’s fitness for parole
were based upon prison records provided by defendant McFarland that did not reflect his
institutional history of educational and vocational progress. He alleges that Washington
then violated his due process rights by continuing the hearing. He also claims that
Washington conducted an “unfair and partial hearing” and denied him parole release
based on the prosecutor’s “biased testimony.” Kemp seeks injunctive relief and damages.
The District Court granted Kemp’s motion to proceed in forma pauperis but
dismissed his complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for
2
failure to state a claim. He then filed this timely appeal.
A prisoner in state custody cannot use a section 1983 action to challenge “the fact
or duration of his confinement.” Wilkinson v. Dotson, 125 S.Ct. 1242, 1245 (2005)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). Section 1983 remains
available “for procedural challenges where success in the action would not necessarily
spell immediate or speedier release for the prisoner.” Id. at 1247 (emphasis in original).1
Kemp does not directly challenge the fact or duration of his confinement.
Although he complains that the use of inaccurate information in determining his custody
level upon arrival at the prison will result in seventeen additional days of imprisonment,
Kemp has not been deprived of earned, good time credits. Rather, his custody status has
affected his eligibility to earn minimum time credits. Similarly, Kemp does not seek to
overturn the October 2003 parole decision or otherwise argue that he is entitled to
immediate release on parole. Instead, he asks that the Court require the defendants to
institute a new system of recording and disseminating information regarding the
institutional history of inmates. Because success in this action would not necessarily
result in his speedier release from prison, his claims are cognizable under section 1983.
We conclude, nevertheless, that Kemp’s complaint properly was dismissed pursuant to
section 1915(e).
Kemp cannot show that the mistaken use of an incomplete record to classify him
1
The District Court adjudicated this matter without benefit of the Supreme Court’s
decision in Wilkinson.
3
upon his arrival at the prison deprived him of a custody status to which he was entitled.
See Meachum v. Fano, 427 U.S. 215 (1976); Wolff v. McDonnell, 418 U.S. 539, 555-57
(1974). Kemp concedes that this mistake was corrected and that his custody status could
not then be reduced for reasons unrelated to the record of his institutional history. With
respect to Kemp’s claim regarding parole procedures, we agree with the District Court
that Kemp was afforded the minimum constitutional protection required at his parole
hearing. Kemp apprised defendant Washington at the hearing that the prosecutor had not
been provided Kemp’s complete institutional record, and he argued that the prosecutor’s
input thus was flawed. Kemp acknowledges that the parole board panel had before it the
complete record of his institutional history, including his attainment of a high school
diploma and his participation in self-help groups. Under these circumstances, we cannot
say that the procedures followed by the panel were so deficient that a due process
violation occurred. See Greenholtz v. Inmates of Nebraska Penal and Corr. Complex,
442 U.S. 1, 17 (1979).
For the foregoing reasons, we will affirm the judgment of the District Court.