GLD-266                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 12-1929
                                   ___________

                             MELVIN X. LINDSAY,
                                        Appellant

                                         v.

  RAYMOND LAWLER; C.O. JON FISHER; BRIAN CORBIN; JOSEPH KELLER;
ARVIL LOVETT; WILLIAM ZURYBUDA; KRISTA FISHER, Psych. Serv. Specialist;
 TABB BICKELL, Supt.; C.M. COOK, Unit Mgr.; J.A. ECKARD, Deputy Supt.; SEC.
DEPT. OF CORREC JOHN WETZEL; JEFFREY BEARD; DORINA VARNER, Chief
   Grievance Officer; BENJAMIN MARTINEZ, Parole Board Member; DEBORAH
        COOK, Parole Board Examiner; CATHERINE MCVEY, Chairwoman
        of the PA Board of Probation & Parole; JOHN AND JANE DOE 1-10
                     ____________________________________

                  On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. Civil No. 11-cv-00893)
                  District Judge: Honorable William W. Caldwell
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
       or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 August 23, 2012

       Before: FUENTES, GREENAWAY, JR. and BARRY, Circuit Judges

                          (Opinion filed: August 30, 2012)
                                     _________

                                    OPINION
                                    _________

                                         1
PER CURIAM

       Melvin X. Lindsay appeals the District Court’s order denying his motion for a

preliminary injunction. For the reasons below, we will summarily affirm the District

Court’s order.

       In his complaint, Lindsay alleged that he had been arbitrarily and capriciously

denied parole for fourteen years because the Parole Board’s rules, policies, and statutes

had been applied to him retroactively. He contended that prison officials refused to give

him institutional support for parole because he will not admit his guilt with respect to a

rape for which he was convicted in April 1983, and refuses to participate in a sex

offender treatment program (SOTP) as required by 42 Pa. Cons. Stat. § 9718.1.1 Lindsay

requested injunctive relief as well as compensatory and punitive damages. The District

Court dismissed the complaint as to several defendants and denied Lindsay’s motion for a

preliminary injunction. Lindsay filed a notice of appeal. The case is continuing in the

District Court with respect to the remaining defendants.

       We have jurisdiction over the appeal of the order to the extent that it denied

Lindsay’s request for injunctive relief. 28 U.S.C. § 1292(a)(1). We review the denial of

a motion for a preliminary injunction to determine whether the District Court abused its

discretion, committed an obvious error in applying the law, or made a serious mistake in

considering the proof. In re Assets of Myles Martin, 1 F.3d 1351, 1357 (3d Cir. 1993).


1
  Section 9718.1 requires that sex offenders attend a treatment program in order to be
eligible for parole.
                                             2
In deciding whether to issue a preliminary injunction, the District Court must consider

“(1) whether the movant has a reasonable probability of success on the merits; (2)

whether irreparable harm would result if the relief sought is not granted; (3) whether the

relief would result in greater harm to the non-moving party, and (4) whether the relief is

in the public interest.” Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002).

       Lindsay contended that retroactive application of 42 Pa. Cons. Stat. § 9718.1 and

amendments to the regulations applied by the Parole Board violated his constitutional

rights. He requested that the defendants be enjoined from requiring him to participate in

the SOTP in order to receive parole or institutional support for parole. The District Court

determined that Lindsay would not suffer any irreparable harm if an injunction was not

granted. We may affirm the District Court on any ground supported by the record.

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We conclude that Lindsay

has not shown a reasonable probability of success on the merits.

        In order to show a violation of the Ex Post Facto Clause, Lindsay must show that

as applied to his sentence, the change in the law created a significant risk of increasing

his punishment. Garner v. Jones, 529 U.S. 244, 255 (2000). “[T]he ultimate question is

the effect of the change in parole standards on the individual’s risk of increased

punishment.” Richardson v. Pa. Bd. of Probation and Parole, 423 F.3d 282, 291 (3d Cir.

2005); see also Newman v. Beard, 617 F.3d 775, 785-86 (3d Cir. 2010).

       Lindsay alleged that in 1995 he was approved for home furloughs and placement

in a community corrections center but that this status was revoked based on the 1996
                                              3
amendments to the Parole Board’s policies. Lindsay asserted that when he was denied

parole in October 1996, the Board gave the following reasons for the denial: assaultive

instant offense, very high assaultive behavior potential, victim injury, weapon involved in

commission of the offense, substance abuse, need for counseling, and unfavorable

recommendation from the DOC. Compl. at ¶15. However, only denials of parole during

the two-year period before the filing of the complaint in April 2011 fall within the statute

of limitations.2

       Lindsay claimed that in May or June of 2009, he was interviewed for parole and

the interview ended within five minutes because he would not admit guilt for his sex

offense and participate in the SOTP. Compl. at ¶35. Lindsay asserted that he was then

denied parole in June 2009. However, he did not describe the reasons given by the Parole

Board or submit any documents related to the denial.

       Lindsay alleges that he was approved for release before the parole regulations

were amended in 1996 and § 9718.1 was enacted in 2000, but that he is now being denied

parole. However, since that time he was convicted of an additional serious criminal

charge of aggravated assault.3 Moreover, we note that the Parole Board determined that


2
  Claims brought pursuant to 42 U.S.C. ' 1983 are subject to the state statute of
limitations for personal injury actions. Wilson v. Garcia, 471 U. S. 261, 266-67 (1985).
In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.
Cons. Stat. Ann. § 5524.
3
  Lindsay stated that he is currently serving an aggregate sentence of 15 years and 3
months to 36 years in prison. That sentence appears to include time for his 1985
convictions for rape, six counts of robbery, and criminal conspiracy, see C.A. No. 06-
3510, and a 2 year and 3 month to 10 year sentence imposed in November 2005.
                                             4
Lindsay had a need for counseling in 1996, four years before § 9718.1 was enacted.

Lindsay has not shown a reasonable probability of success in demonstrating that the

amended 1996 Parole Board regulations or the application of § 9718.1 created a

significant risk of increasing his punishment.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm

the District Court’s order. See Third Circuit I.O.P. 10.6.1.




According to the electronic docket of the Court of Common Pleas of Fayette County, this
2005 sentence was for a conviction for aggravated assault and simple assault.
                                             5
