                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Kemp v. McFarland" (2005). 2005 Decisions. Paper 532.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/532


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DPS-337                                                  NOT PRECEDENTIAL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.
