                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2003

Thorpe v. Grillo
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-3171




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Thorpe v. Grillo" (2003). 2003 Decisions. Paper 170.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/170


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                           NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                    No. 00-3171




                        FRANCIS CHARLES THORPE, JR.,
                                                  Appellant

                                          v.

          JOSEPH GRILLO; BERNARD CHIPEGO; WILLIAM CURRAN;
            WILLIAM MISHLER; TIMOTHY W. SMITH, JOHN DOE,
                       et al. each in his own capacity




                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. No. 98-cv-00539)
                      District Judge: Hon. William J. Nealon


                               Argued October 14, 2003

            Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges

                               (Filed October 31, 2003)


Scott D. Slater    (Argued)
Matthew C. Flannery
Jones Day
Pittsburgh, PA 15219

      Attorney for Appellant
D. Michael Fisher
       Attorney General
Daniel J. Doyle
       Senior Deputy Attorney General
Calvin R. Koons
       Senior Deputy Attorney General
John G. Knorr, III
       Chief Deputy Attorney General
       Chief, Appellate Litigation Section
Sarah C. Yerger     (Argued)
Office of Attorney General
Litigation Section
Harrisburg, PA 17120

       Attorneys for Appellees


                               OPINION OF THE COURT

SLOVITER, Circuit Judge.

                                             I.

       Francis Charles Thorpe, Jr., a former Pennsylvania prison inmate, appeals from the

District Court’s grant of summary judgment in favor of defendants, Pennsylvania prison

officials, on all substantive claims in Thorpe’s suit against them pursuant to 42 U.S.C. §

1983. The District Court also denied Thorpe’s motion to compel deposition. Thorpe

appeals both orders.

       Thorpe, who was convicted in a Pennsylvania court in November 1987 of raping

his minor-aged stepdaughter, was sentenced to five to ten years, with the five-year

minimum sentencing period expiring on October 22, 1995 and the ten-year maximum

sentencing period expiring on October 22, 2000. The victim later recanted her trial

                                             2
testimony incriminating Thorpe, who had steadfastly maintained his innocence

throughout his incarceration.

       The Pennsylvania Department of Corrections (“DOC”) requires sex offender

inmates to complete a treatment program in order to receive the prison’s recommendation

for parole. To participate in the treatment program, an inmate must first admit that s/he

had committed a sex offense. The DOC asserts that the treatment would be ineffective in

the absence of such admission, an assertion Thorpe does not challenge. Thorpe was

consequently denied participation in the treatment program, and did not receive a DOC

recommendation for parole.

       After Thorpe’s minimum sentence expired, the Pennsylvania Board of Probation

and Parole (“Parole Board”) considered Thorpe’s application for parole on three

occasions. On each occasion, the Parole Board denied Thorpe’s application on the

grounds that he had not completed the sex offender treatment program and had not

received a favorable recommendation for parole from the DOC. Thorpe has subsequently

been released from prison.

       During his incarceration, Thorpe held a job at State Correctional Institution

(“SCI”), Cresson (“SCI-Cresson”) as a computer operating clerk. On November 7, 1995,

he was removed from that job and reassigned janitorial tasks, ostensibly because of poor

work performance. Thorpe asserts, however, that a “confidential source” informed him

that his removal from that job was in retaliation for having complained of “not being



                                             3
allowed in suitable [treatment] programs because he did not admit to the crime he was

convicted of.” App. at 198.

       Thorpe initiated this § 1983 suit in federal court by filing a short form pro se

complaint alleging violations of his Fourteenth Amendment right to due process, Fifth

Amendment right to freedom from compelled self-incrimination, and retaliation claims

based on the exercise of his Fifth Amendment privilege and First Amendment right to

access the courts. Thorpe named as defendants six prison officials: Joseph Grillo, a

counselor at SCI-Waymart; Bernard Chipego, a unit manager at

SCI-Waymart; William Curran, a counselor at SCI-Cresson; William Mishler, the inmate

employment manager at SCI-Cresson; Timothy W. Smith, a counselor at SCI-Cresson;

and John Doe, a counselor at SCI-Graterford (collectively referred to as “Prison

Officials”). Discovery began following the transfer of this case from the Eastern District

to the Middle District of Pennsylvania.

       On August 31, 1998, Thorpe, still acting pro se, wrote to counsel for the Prison

Officials inquiring of the general arrangements for taking depositions. He received no

response. After the Prison Officials filed a motion for summary judgment, Thorpe served

a motion to compel oral depositions. The District Court denied Thorpe’s motion to

compel because he had “failed to notice the deposition of any party or non-party in

accordance with the applicable [Federal Rules of Civil Procedure and local District Court

rules],” because he “remain[ed] responsible for conducting his own discovery” without



                                              4
need for leave of court, and because he had never identified specific individuals to

depose. App. at 29-31. The District Court also denied Thorpe’s subsequent motion for

reconsideration.

       The District Court denied the Prison Officials’ motion for summary judgment

without prejudice to allow Thorpe additional time to complete discovery. Thereafter, the

Court granted the Prison Officials’ renewed motion for summary judgment. The Court

determined that (1) Thorpe had no Fourteenth Amendment liberty interest in

consideration for parole; (2) requiring an admission of guilt as a condition for

participating in the sex offender treatment program does not violate Thorpe’s federally

protected rights, including the Fifth Amendment protection against self-incrimination; (3)

the statute of limitation barred Thorpe’s job retaliation claim as well as all claims prior to

December 15, 1995; and (4) Thorpe failed to adduce evidence in support of his claim of

retaliatory transfer. Thorpe appeals the District Court’s denial of his motion to compel

deposition and entry of summary judgment on the other claims. This court appointed pro

bono counsel for Thorpe.1

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. This

court has jurisdiction over this matter pursuant to 28 U.S.C. § 1291.

       We have plenary review of a grant of summary judgment. This court must “view

   1
      We express our appreciation to Scott D. Slater of the Pittsburgh office of Jones
Day for undertaking his services pro bono.

                                              5
the inferences to be drawn from the underlying facts in the light most favorable to the

party opposing the motion.” Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002)

(quotation and citation omitted). We review orders concerning the scope or opportunity

for discovery for abuse of discretion. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir.

2000). Because this appeal raises issues of interest only to the parties, we dispose of it

with a not precedential opinion.

A. Thorpe’s Fourteenth Amendment Claim

       Thorpe claims that the DOC’s policy, as enforced by the Prison Officials, of

denying sex offender therapy treatment to those refusing to admit guilt violated his

Fourteenth Amendment liberty interest because he was thereby not considered for parole.

The Prison Officials respond that the authority to grant parole under Pennsylvania law is

vested solely in the Parole Board, see 61 Pa. Cons. Stat. § 331.17 (2003),2 and Thorpe

“has sued the wrong parties.” Thorpe replies that such “real party in interest” argument

constitutes an affirmative defense that may not be raised for the first time on appeal. In



   2
       The Pennsylvania statute states:

              The board shall have exclusive power to parole and reparole,
              commit and recommit for violations of parole, and to
              discharge from parole all persons heretofore or hereafter
              sentenced by any court in this Commonwealth to
              imprisonment in any prison or penal institution thereof,
              whether the same be a state or county penitentiary, prison or
              penal institution, as hereinafter provided.

61 Pa. Cons. Stat. § 331.17 (2003).

                                              6
the alternative, Thorpe argues that the Prison Officials as DOC employees enforcing

DOC policies are the “real party in interest” under 42 U.S.C. § 1983.

       We need not resolve this “real party in interest” issue because the facts

demonstrate that the Parole Board considered Thorpe for parole on no less than three

occasions during his incarceration. On each occasion, the Parole Board rejected Thorpe’s

application because he had not completed the sex offender treatment program and had not

received a favorable recommendation from the DOC. Even if existing DOC policy

regarding treatment programs and parole recommendations may have adversely affected

Thorpe’s parole applications, the Parole Board’s duty was merely to review these

applications as required under Pennsylvania law. See Marshall v. Pa. Bd. of Prob. &

Parole, 638 A.2d 451, 454 (Pa. Commw. Ct. 1994) (stating that under Pennsylvania

statute, the Parole Board has mandatory duty to consider parole applications by

prisoners). Thorpe’s claim, therefore, is not supported by the facts.3

       The Parole Board’s consideration of Thorpe’s parole applications is sufficient for

Fourteenth Amendment due process purposes because “[t]here is no constitutional right

or inherent right of a convicted person to be conditionally released before the expiration

of a valid sentence.” Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)



   3
       Thorpe’s counsel argues that Thorpe submitted five applications and notes the
absence of any record evidence of consideration of the other two applications. Inasmuch
as the applications that were denied both preceded and succeeded the other two
applications, we decline to make the assumption that they would have been treated
differently by the Board.

                                             7
(quoting Greenholtz v. Inmates of Neb. Penal. & Corr. Complex, 442 U.S. 1, 7 (1979)).

While “States may under certain circumstances create liberty interests which are protected

by the Due Process Clause,” Sandin v. Conner, 515 U.S. 472, 483-84 (1995), the

Pennsylvania Supreme Court has long held that “a denial of parole does not implicate a

constitutionally protected liberty interest.” Coady v. Vaughn, 770 A.2d 287, 291 (Pa.

2001); see also Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322-23 (Pa. 1999)

(affirming Parole Board’s discretion to grant or deny parole because “parole is a matter of

grace and mercy shown to a prisoner who has demonstrated to the Parole Board's

satisfaction his future ability to function as a law-abiding member of society upon release

before the expiration of the prisoner's maximum sentence”). The District Court,

therefore, did not err in granting summary judgment on Thorpe’s Fourteenth Amendment

Claim.

B. Thorpe’s Fifth Amendment Claim

         Thorpe also contends that the DOC’s policy of excluding from the sex offender

treatment program those who do not admit guilt to the offense violated his Fifth

Amendment right against self-incrimination. Thorpe argues that by forcing him to choose

between maintaining his innocence and participating in a treatment program necessary for

parole recommendation, the DOC was in effect imposing an automatic punishment on

him for remaining silent.

         Thorpe’s Fifth Amendment claim is unpersuasive. The DOC’s policy did not force



                                             8
Thorpe to incriminate himself in a criminal trial. See Chavez v. Martinez, 123 S. Ct.

1994 (2003) (suggesting that violations of prophylactic rules safeguarding the right

against self-incrimination do not amount to actual constitutional violations as required for

civil liability under § 1983); see also Renda v. King, Nos. 01-2421, 01-2498, 2003 WL

22351620, at *7 (3d Cir. Oct. 16, 2003) (stating that “it is the use of coerced statements

during a criminal trial . . . that violates the Constitution”) (citation omitted). Moreover,

Thorpe did not receive additional punishment for maintaining his innocence under the

DOC’s policy. His refusal to admit his guilt and the resulting inability to participate in

the treatment program did not extend his term of his incarceration or automatically

deprive him of consideration for parole. See McKune v. Lile, 536 U.S. 24, 38, 43-45

(2002) (Kennedy, J., plurality) (characterizing compulsion under the Fifth Amendment as

hinging on the automatic nature and severity of the threatened punishment). Thorpe was

not entitled to parole, just to consideration for parole. The DOC’s policy did not

automatically deprive him of consideration for parole, although it may have been

influential in that respect. Therefore, the District Court did not err in entering summary

judgment in favor of the Prison Officials on Thorpe’s Fifth Amendment self-

incrimination claim.

C. The Statute of Limitations for Thorpe’s Job Retaliation Claim

       Thorpe had no vested interest in any particular prison job, or in any job at all. The

prison officials could have removed him for any reason, or no reason at all. His claim on



                                              9
that ground must fail. Even if he had a claim, it would be barred by the statute of

limitations. The appropriate limitation period for a § 1983 action brought in Pennsylvania

is the two-year limitation provided by 42 Pa. Cons. Stat. Ann. § 5524. Smith v. City of

Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985). Thorpe was removed from his position as

computer operating clerk on November 7, 1995, and he initiated this action in the District

Court on December 15, 1997. Based on these facts alone, Thorpe’s claim of job

retaliation by the Prison Officials is untimely, as the District Court found.

       We reject Thorpe’s assertion that the action of the Prison Officials constituted a

continuing violation that tolled the statute of limitation. In Cowell v. Palmer Township,

263 F.3d 286 (3d Cir. 2001), we identified at least three factors relevant to analyzing a

continuing violation claim:

              (1) subject matter–whether the violations constitute the same
              type of discrimination, tending to connect them in a
              continuing violation; (2) frequency–whether the acts are
              recurring or more in the nature of isolated incidents; and (3)
              degree of permanence–whether the act had a degree of
              permanence which should trigger the plaintiff’s awareness of
              and duty to assert his/her rights and whether the consequences
              of the act would continue even in the absence of a continuing
              intent to discriminate.

Id. at 292. The enforcement of the DOC requirements governing participation in the sex

offender treatment program is a distinct subject matter than Thorpe’s removal from his

computer clerk position. We are also not persuaded by Thorpe’s assertion that a

permanent job transfer constitutes a continuing violation in itself, as Thorpe does not



                                             10
allege any recurring acts by the Prison Officials that would satisfy Cowell’s frequency

requirement.

       Because Thorpe received notice on the day of his job transfer, and did not file his

claim within the two-year statute of limitations, he is time-barred from pursuing his job

retaliation claim.

D. District Court’s Denial of Thorpe’s Motion to Compel Deposition

       We review a district court’s order concerning discovery for abuse of discretion.

We “will not upset a district court’s conduct of discovery procedures absent a

demonstration that the court’s action made it impossible to obtain crucial evidence, and

implicit in such a showing is proof that more diligent discovery was impossible.” Gallas

v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir. 2000) (quotation and citation

omitted). The record shows that Thorpe had ample opportunity to conduct discovery,

including identifying individuals for deposition and serving notice on them. Because

Thorpe never precisely identified to the District Court the individuals he intended to

depose, we cannot hold that the District Court abused its discretion in denying Thorpe’s

motion to compel deposition.

                                            III.

       For the reasons discussed above, we will affirm the District Court’s denial of

Appellant’s motion to compel deposition and entry of summary judgment.




                                            11
TO THE CLERK:

         Please file the foregoing opinion.


         /s/ Dolores K. Sloviter
          Circuit Judge




                                       12
