                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2008

Connolly v. Arroyo
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3688




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Recommended Citation
"Connolly v. Arroyo" (2008). 2008 Decisions. Paper 518.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/518


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                                                                     BLD-159
                                                           NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                No. 07-3688


                           DAVID CONNOLLY,
                                    Appellant
                                  v.

                   RICHARD ARROYO, Parole Officer;
                   JOHN D'AMICO, Chairman NJSPB;
                MICHAEL DOWLING, Exec. Dir. NJSPB;
                    EDWARD OSKAY, Chief NJSPB;
                   THOMAS JAMES, Div. Dir. NJSPB;
                 DAVID WOLFSGRUBER, Chief NJSPB;
                  DEBRA ALT, D.P.S., D.O. #9, NJSPB;
               CYNTHIA STRUNCK, A.D.P.S., D.O. #9;
                  ANNE MCGRATH, Div., Capt., NJSPB;
                THOMAS CIACCIARELLI, Chief NJSPB;
         LISA M. SINGH, Chief, NJSPB; DOUGLAS CHIESA,
      Exec. Asst. NJSPB; JOHN DOES, (Fictitious Defendants 1-10);
                JANE ROES, (Fictitious Defendants 11-20)
                   _______________________________

                Appeal from the United States District Court
                        for the District of New Jersey
                         (D.C. Civil No. 06-cv-04684)
               District Judge: Honorable Katharine S. Hayden
                  ________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) and/or
 Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                              March 13, 2008

          Before: McKEE, RENDELL and SMITH, Circuit Judges

                        (Filed: September 18, 2008)
                               OPINION OF THE COURT


PER CURIAM

       Appellant David Connolly, formerly a New Jersey state prisoner, was released on

parole in May 2004 following serving part of his sentence for burglary and other crimes.

On April 12, 2005, he was arrested pursuant to a warrant for violating the terms of his

parole by failing to report as directed and obtain approval to change his residence.

Connolly appeared for a parole violation hearing on May 5, 2005, at which his parole

officer, Richard Arroyo testified. Connolly admitted that he had failed to report on five

occasions but explained that this failure was due to a broken hand and foot, and he denied

the other charge. It also was established that Connolly had held down two jobs during the

relevant time period despite his injuries. On May 31, 2005, Hearing Officer Andrew

Demko sustained the parole violations and recommended that the Parole Board revoke

Connolly’s parole and establish a future eligibility date of 12 months. On June 1, 2005,

the Board adopted this recommendation.

       Connolly filed an administrative appeal, claiming that his case had been prejudged

and Arroyo’s conduct at the hearing had violated the Board’s Code of Conduct.

Ultimately, the Board’s Appeals Unit was unable to review each of Connolly’s

contentions because the audiotape recording of the proceeding had been misplaced, and

so, on November 4, 2005, Edward Oskay, Chief of the Board’s Appeals Unit informed

                                             2
Connolly by letter that the June 1 decision would be vacated, and the Board would

conduct a de novo final parole revocation hearing. A new hearing was held on December

21, 2005, and once again the Board decided to revoke Connolly’s parole and establish a

future eligibility date of 12 months. Connolly filed another administrative appeal. In a

letter dated May 17, 2006, Oskay advised Connolly that the Board’s Appeals Unit had

again decided to vacate its decision to revoke his parole, and schedule a new parole

revocation hearing. No reason was given in the letter for this action. Connolly remained

in custody and a third revocation hearing never took place.

       On September 29, 2006, Connolly filed suit against Arroyo and Parole Board

officials (but not Hearing Officer Demko) under 42 U.S.C. § 1983 in United States

District Court for the District of New Jersey, claiming a violation of his constitutional

rights in connection with his custody. He alleged that Arroyo had intentionally sabotaged

his parole revocation hearing by testifying falsely, his case had been prejudged, he had

been denied the right to call witnesses, and he had been denied a timely revocation

hearing. He also asserted claims of vicarious liability against Board officials for failing to

train and supervise Arroyo, and failing to conduct an adequate investigation into his

misconduct. Connolly sought money damages, and declaratory and injunctive relief.1

       The defendants moved to dismiss the complaint pursuant to the “favorable




  1
   Connolly sought an injunction barring the defendants from retaliating against him
should he be reparoled prior to the expiration of his sentence.

                                              3
termination rule” of Heck v. Humphrey, 512 U.S. 477 (1994), asserting that Connolly

would have to show, and had not, that any decision by the Parole Board had been reversed

or invalidated by the Appellate Division of the New Jersey Superior Court. Connolly

opposed the motion in writing. In a reply to Connolly’s response, the defendants asserted

that any delay in the proceedings was attributable to Connolly. They noted that, at his

December 2005 hearing, Connolly waived both a probable cause hearing and a final

revocation hearing. His waiver was based upon the understanding that he was going to be

scheduled in the near future for a parole release hearing pursuant to N.J.A.C. § 10A:71-

3.1 et seq. Connolly subsequently withdrew the waiver, so the Board in May 2006

vacated the second parole revocation decision, and scheduled a third hearing. Connolly

then requested that counsel be assigned and witnesses be subpoenaed. Counsel was

assigned, but the new hearing never took place because counsel had not yet notified the

Board that she was ready to proceed. Connolly filed a sur-reply in which he vigorously

disputed that he had caused the delay.

       In an order entered on August 24, 2007, the District Court granted the defendants’

motion and dismissed the complaint, agreeing with the defendants that Heck barred the

action. Meanwhile, Connolly was released from prison on March 22, 2007, having served

the maximum sentence for his convictions.

       Connolly appeals. Our Clerk granted Connolly leave to appeal in forma pauperis

and advised him that his appeal was subject to dismissal under 28 U.S.C. § 1915(e)(2)(B).



                                             4
       We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §

1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. §

1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the

appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §

1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or

fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “[W]hen ruling on a defendant's

motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a judge must

accept as true all of the factual allegations contained in the complaint.” Erickson v.

Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007)).

       This appeal of the District Court’s decision to dismiss the complaint under Rule

12(b)(6) lacks an arguable basis in law. Heck holds that a prisoner’s civil rights suit for

damages or equitable relief is barred unless he can demonstrate that his conviction or

sentence has been invalidated. 512 U.S. at 486-87. Heck’s favorable termination rule

applies “no matter the target of the prisoner’s suit (state conduct leading to conviction or

internal prison proceedings) – if success in that action would necessarily demonstrate the

invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82

(2005). See also Edwards v. Balisok, 520 U.S. 641, 646-47 (1997). We held in Williams

v. Consovoy, 453 F.3d 173 (3d Cir. 2006), that claims similar to Connolly’s were not

cognizable in a section 1983 action on the basis of Heck, because the alleged improper



                                              5
denial of release on parole plainly implicates the validity of continued confinement. Id. at

177.

       The duration of Connolly’s confinement after he was arrested on the parole

violator warrant has never been reversed on direct appeal, declared invalid by a state

tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus,2

and he, therefore, has not satisfied Heck’s favorable termination rule. 512 U.S. at 486-87.

The two Appeals Unit decisions vacating the Board’s revocation decisions do not

constitute favorable terminations because they were not reversals of the Board’s

decisions. Connolly’s release when he “maxed out” also does not constitute a favorable

termination on the parole issue. Finally, the fact that Connolly was released during the

pendency of the litigation does not preclude the application of Heck, which applies even

where habeas relief is no longer available because the individual is no longer in custody.

See Williams, 453 F.3d at 178 (citing Gilles v. Davis, 427 F.3d 197, 210-11 (3d Cir.

2005)).



  2
    A challenge to the fairness of parole violation proceedings is cognizable in federal
habeas. Under Morrissey v. Brewer, 408 U.S. 471, 481 (1972), the revocation of parole is
not part of a criminal prosecution and thus the full panoply of rights due a defendant in
such a proceeding does not apply. The parolee is entitled, however, to notice of the
charges, to a preliminary hearing to determine whether there is probable cause to believe
that he has committed acts that would constitute a violation of parole conditions, id. at
484-85, and a full hearing at which he may present evidence, id. at 487-88. A parolee
also has a right to counsel where he makes a request based on a colorable claim that he
has not committed the alleged violation of the conditions or that there are substantial
reasons which make revocation inappropriate. Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973).

                                              6
      We will dismiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Appellant’s motion for appointment of counsel is denied.




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