DLD-148                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3919
                                      ___________

                                 CURTIS THROWER,
                                               Appellant

                                            v.

                 THE NEW JERSEY STATE PAROLE BOARD;
            PAROLE OFFICER FARMER; PAROLE OFFICER MORGAN
                   ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 08-cv-01454)
                    District Judge: Honorable Garrett E. Brown, Jr.
                     ____________________________________

       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
                                   March 24, 2011
               Before: BARRY, FISHER AND ROTH, Circuit Judges

                              (Opinion filed: July 20, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Curtis Thrower, proceeding pro se, appeals from the District Court’s partial

dismissal of his complaint and entry of summary judgment against him. For the reasons

that follow, we will summarily affirm the judgment of the District Court.
       Thrower initiated the instant action in the United States District Court for the

District of New Jersey in March 2008. In his complaint, Thrower alleged that Parole

Officer Farmer fabricated information regarding several positive drug tests which

resulted in the revocation of his parole. He maintained that this was done in retaliation

for Thrower’s filing of a lawsuit against a former employee of the Essex County Jail,

John Ferrante, who Thrower maintained Officer Farmer was friends with or was related

to. Thrower also named the New Jersey State Parole Board and Officer Farmer’s

supervisor, Parole Officer Morgan, as defendants. He maintained that the Parole Board

relied on falsified evidence in revoking his parole, and that Officer Morgan was complicit

in Officer Farmer’s misdeeds.

       Reviewing the complaint under 28 U.S.C. § 1915(e)(2)(B), the District Court

dismissed Thrower’s claims against the Parole Board and Officer Morgan. The Court

held that the Parole Board was not a “person” within the meaning of 42 U.S.C. § 1983.

See Madden v. N.J. State Parole Bd., 438 F.2d 1189, 1190 (3d Cir. 1971). With respect

to the allegations that Officers Farmer and Morgan fabricated the results of Thrower’s

urine tests to have his parole revoked, the Court held that any such falsification, in and of

itself, would not constitute a constitutional violation, where, as here, Appellant had the

opportunity to rebut those charges at a Parole Board Hearing. See Smith v. Mensinger,

293 F.3d 641, 654 (3d Cir. 2002) (explaining that “so long as certain procedural

requirements are satisfied, mere allegations of falsified evidence or misconduct reports,

                                              2
without more, are not enough to state a due process claim”); Hanrahan v. Lane, 747 F.2d

1137, 1140 (7th Cir. 1984) (holding that the procedural safeguards set out in Wolff v.

McDonnell, 418 U.S. 539, 558 (1974), provide sufficient constitutional protection from

arbitrary action of law enforcement officers). To the extent he sought to challenge the

outcome of his Parole Board hearing and gain his release from prison, the Court held that

his sole remedy was to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973). Thrower also sought

monetary damages from defendants, which relief the Court held was barred under Heck

v. Humphrey, 512 U.S. 477, 487 (1994). Based on the allegations in the complaint, the

Court allowed to proceed Thrower’s claim that Officer Farmer harassed him and

fabricated the results of his drug tests in retaliation for his filing of a lawsuit against

someone who was allegedly either a friend or relative of Officer Farmer. See Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001).

       After a period of discovery, Thrower filed a motion for summary judgment in

which he primarily attacked the evidence used to revoke his parole. He claimed that

Officer Farmer did not follow protocol in collecting his urine sample or determining

whether any positive result could have been based on his use of prescribed medication.

He did not address the fact that he signed several “admission of use” forms, though he

did attach them to his motion. Officer Farmer filed a cross-motion for summary

judgment, highlighting these forms, one dated October 31, 2007, in which Thrower

                                                3
admitted to using opiates, one dated November 20, 2007, in which Thrower admitted to

using heroin on November 18, and one dated January 14, 2008, in which Thrower

admitted to using oxycontin and percocet on January 10 and 11. (Pl.’s Mot. for Summ.

J., Ex. C.) Additionally, Thrower tested positive for morphine on January 12, 2008. (Id.)

Thrower had a parole revocation hearing on February 6, 2008, at which he and Parole

Officers Farmer, Bashiti, and Morgan testified. Following the hearing, the Hearing

Officer sustained the charges that Thrower had used drugs and failed to complete the

Halfway Back Program, and recommended that his parole be revoked. The Parole Board

Panel agreed and imposed a fourteen-month future eligibility term. Thrower appealed the

Board Panel decision to the full Parole Board, which affirmed.

       Officer Farmer argued that she was entitled to entry of summary judgment on

Thrower’s retaliation claim because he failed to offer any evidence to substantiate his

allegations either that he was subjected to an adverse action by Officer Farmer or that his

filing of a lawsuit against John Ferrante and Essex County Jail was a substantial

motivating factor in Officer Farmer’s decision to take any such adverse action. See

Rauser, 241 F.3d at 333 (explaining that in order to succeed on a First Amendment

retaliation claim, the plaintiff must prove that: (1) he engaged in constitutionally

protected conduct; (2) he was subjected to an adverse action by a state actor; and (3) the

protected activity was a substantial motivating factor in the state actor’s decision to take

the alleged adverse action). The District Court agreed with Officer Farmer, holding that

                                              4
Thrower had failed to demonstrate that Officer Farmer took any adverse action against

him, as she did not conduct the allegedly faulty drug tests, nor did she make the final

decision whether to revoke Thrower’s parole. As the Court noted, Thrower’s filings were

primarily addressed to the veracity of the evidence submitted at the parole revocation

hearing, and the Parole Board’s ultimate decision to revoke his parole. As the conduct of

the parole revocation proceedings is not the proper subject of a section 1983 action, and

Thrower failed to submit any competent, reliable evidence to substantiate his assertions

that Officer Farmer fabricated the evidence against him in retaliation for his filing of a

lawsuit, the District Court denied his motion for summary judgment and granted Officer

Farmer’s motion. Thrower appealed and requested the appointment of counsel on appeal.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s decision to grant a motion to dismiss de novo. See Dique v. N.J.

State Police, 603 F.3d 181, 188 (3d Cir. 2010). We also exercise plenary review over the

District Court’s entry of summary judgment, viewing the underlying facts and all

reasonable inferences therefrom in the light most favorable to the non-moving party. See

Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). Summary judgment is

appropriate only if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). A party asserting that

there is a genuine dispute as to a material fact must support that assertion with specific

citations to the record. See Fed. R. Civ. P. 56(c).

                                              5
       We agree with the District Court’s resolution of Thrower’s claims. The bulk of

his arguments are directed to the evidence that was used to revoke his parole. As these

arguments are essentially directed to the legality of his confinement, we agree that they

are not the proper subject of a section 1983 action. With respect to Thrower’s retaliation

claim, he submits no evidence other than his own assertions to support the theory that

Officer Farmer fabricated information regarding his drug use in retaliation for his filing

of a lawsuit against Essex County Jail and its former employee. Because we conclude

that this appeal presents no “substantial question,” we will summarily affirm the

judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6. Thrower’s motions

for the appointment of counsel and to expedite his appeal are denied as moot.




                                             6
