                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2007

Peterson v. Bussard
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4672




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Recommended Citation
"Peterson v. Bussard" (2007). 2007 Decisions. Paper 866.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/866


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ALD-262                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  NO. 06-4672
                               ________________

                           MICHAEL U. PETERSON,
                                            Appellant,

                                        v.

           Lt. BUSSARD, Security Lt.; KERRI CROSS, Hearing Examiner;
          J. SCEKERS, Deputy Supt.; MS. CHAMBERLAIN, Deputy Supt.;
               D.J. WAKEFIELD, Supt.; T. WINGARD, Unit Manager;
                     ROBERT BITNER, Chief Hearing Examiner

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 05-cv-02416)
                    District Judge: Honorable Sylvia H. Rambo
                  _______________________________________


           Submitted on Appellant’s Motion for Possible Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 14, 2007

     BEFORE: SLOVITER, CHAGARES AND GREENBERG, Circuit Judges

                              (Filed : June 28, 2007)

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
              Appellant, Michael Peterson, timely appeals from the District Court’s grant

of defendants’ Motion to Dismiss.

              Peterson is an inmate at the State Correctional Institution in Frackville,

Pennsylvania, who filed this action under 42 U.S.C. § 1983 alleging violations of his due

process rights in connection to a prison disciplinary proceeding. On May 17, 2005, while

incarcerated at the State Correctional Institution at Greensburg, appellant was found to

have sold contraband steroids to another inmate. As a result, he was sanctioned with 60

days in disciplinary custody, and the Board of Probation and Parole revoked his

constructive parole1 and imposed nine months of recommit time. His complaint alleged

due process violations because he did not receive written notice of the charges at least 24

hours before the hearing, and he was prevented from calling key witnesses. The District

Court granted defendants’ motion, concluding that appellant had been afforded all due

process to which he was entitled. Appellant filed a Motion for Summary Action with this

Court arguing that the District Court erred in dismissing his complaint and in refusing

him the opportunity to amend.

              We exercise jurisdiction pursuant to 28 U.S.C. § 1291, engaging in plenary

review of the District Court’s dismissals under Rule 12(b)(6). See County Concrete

Corp. v. Town of Roxbury, 442 F.3d 159, 163 (3d Cir. 2006). We review the denial of



  1
    An inmate on “constructive parole” is “at liberty on parole” from one sentence, but
remains incarcerated serving a separately-imposed sentence. See Cox v. Bd. Of
Probation and Parole, 507 Pa. 614, 619 (1985).

                                             2
leave to amend the complaint for abuse of discretion. See Anderson v. Ayling, 396 F.3d

265, 271 (3d Cir. 2005); In re Adams Golf, Inc. Securities Litig., 381 F.3d 267, 280 n.13

(3d Cir. 2004).

              We find that Peterson’s § 1983 claims are barred under Edwards v. Balisok,

520 U.S. 641 (1997). A finding that he was denied the opportunity to prepare his defense

and prevented from calling key witnesses would necessarily imply the invalidity of the

sanctions imposed. Id. at 646-47. Because these sanctions involved the fact and length of

appellant’s confinement, rather than simply the conditions of confinement, § 1983 is

unavailable unless the sanctions have been “reversed, invalidated, or called into question

by a grant of federal habeas corpus relief” or some equivalent state process. Torres v.

Fauver, 292 F.3d 141, 143 (3d Cir. 2002); see also Leamer v. Fauver, 288 F.3d 532, 540-

42 (3d Cir. 2002).   Because this bar could not have been overcome by repleading, the

District Court did not abuse its discretion in denying leave to amend as futile.

              Accordingly, we will summarily affirm the judgment of the District Court.

Because we affirm on different grounds, we modify the dismissal to be without prejudice

to the refiling of this action should the sanctions relating to the fact and length of

confinement be reversed, invalidated, or otherwise called into question.




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