                                                                  NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-1465
                                         ___________

                                   RICHARD D. TAYLOR,
                                                 Appellant

                                               v.

                         DAVID HENDERSON; WILLIAM C.
                        PFEIFER; JOYCE BEMBRY; LEEANN
                   BULLOCK; GREGORY GARCIA; JAMES T. JUSTICE
                       ____________________________________

                       On Appeal from the United States District Court
                                 for the District of Delaware
                           (D.C. Civil Action No. 1-12-cv-01105)
                        District Judge: Honorable Gregory M. Sleet
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 17, 2015
             Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges

                              (Opinion filed: November 19, 2015)
                                         ___________

                                          OPINION*
                                         ___________

PER CURIAM

         Richard D. Taylor appeals from the order of the District Court dismissing his


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
amended complaint and denying his motion to further amend as moot. We will affirm in

part, vacate in part, and remand for further proceedings.

                                             I.

       Taylor is a Delaware inmate serving two concurrent terms of life imprisonment

imposed in 1971 for rape and kidnapping. Following a series of paroles and parole

revocations, Taylor’s parole was revoked again in 2004 after he tested positive for

cocaine, and he has remained in prison ever since. At issue in this case are Taylor’s

applications for parole that the Delaware Board of Parole (the “Board”) denied in 2008,

2012 and 2014. The Board denied parole in 2008 on six grounds, including the “violent

nature of offense” and Taylor’s “substance abuse history.” The Board again cited the

“violent nature of offense” and four other grounds when denying parole in 2012.

       After the Board’s 2012 denial, Taylor filed the suit at issue here and later amended

his complaint. The amended complaint asserts essentially two claims. First, Taylor

claims that it was improper for the Board to rely on the nature of his underlying offense

because the Board previously paroled him notwithstanding the nature of that offense.

Taylor sought otherwise unspecified injunctive relief on this claim and requested a

determination “whether the Board of Parole can continue to deny me re-parole based on

the Serious Nature of My Offense.” (ECF No. 16 at 3.)

       Second, Taylor claims that the Board’s reliance on his history of substance abuse

violated his rights under Title II of the Americans With Disabilities Act (“ADA”).

Taylor has been diagnosed with Post Traumatic Stress Disorder (“PTSD”) arising from


constitute binding precedent.
his service in the military in Vietnam, and he appears to claim that both that disorder and

his drug addiction constitute disabilities for ADA purposes. He further claims that his

PTSD was the underlying cause of his substance abuse and that he cannot obtain

adequate treatment for his PTSD while in prison. He also alleges that the Department of

Veteran Affairs has approved him for a re-entry program that would provide such

treatment but that he cannot avail himself of that program because the Board’s denials of

parole are keeping him in prison. Thus, he appears to claim that the Board is violating

the ADA by (1) relying on his history of substance abuse in denying parole while (2)

effectively denying him the PTSD treatment necessary to remedy that substance abuse.

       The defendant Board members1 filed a motion under Fed. R. Civ. P. 12(b)(6) to

dismiss Taylor’s amended complaint on statute of limitations and other grounds. Taylor

responded with a motion to further amend to include the same challenges to the Board’s

materially identical 2014 denial of parole. Taylor also sought to assert as a third claim

that the Board acted arbitrarily by relying on impermissible factors in violation of the

Due Process Clause of the Fourteenth Amendment. The District Court granted the

Board’s motion and dismissed Taylor’s amended complaint solely on statute of

limitations grounds. In doing so, the District Court addressed Taylor’s proposed second

amended complaint, but it did not grant Taylor leave to file that second amended


1
  Taylor named as defendants individual members of the Board but never named or
sought to name the Board itself. The defendants argue on appeal that we should affirm
the dismissal of Taylor’s amended complaint because he never named the Board itself as
a defendant or served process on a majority of the Board members. We do not decide
that issue as discussed below, and we hereafter refer to the defendants collectively as the
Board solely for ease of reference.
complaint and instead denied his motion to amend as moot. We construe these rulings to

include a ruling that the proposed amendment would be futile. Taylor appeals.2

                                            II.

       Taylor claims that the Board (1) denied him due process by relying on the nature

of his offense and (2) denied him due process and violated the ADA by relying on his

history of substance abuse. The parties and the District Court agree that these claims are

governed by Delaware’s two-year statute of limitations for personal injury actions. See

Disabled in Action of Pa. v. S.E. Pa. Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008)

(ADA); McDowell v. Del. State Police, 88 F.3d 188, 190 (3d Cir. 1996) (§ 1983).

       The District Court concluded that Taylor’s claims are untimely in their entirety.

As we will explain, we agree as to Taylor’s claim that the Board denied him due process

by relying on the nature of his offense. We further agree as to Taylor’s claims that the

Board denied him due process and violated the ADA by relying on his history of

substance abuse, at least to the extent that those claims challenge the Board’s reliance on

that factor per se. Those claims, however, have another aspect that the District Court did

not acknowledge and that cannot be deemed untimely at this stage.


2
  Taylor properly asserted his claims under 42 U.S.C. § 1983 and the ADA rather than in
a habeas petition because success on his claims that the Board relied in part on
impermissible factors would result merely in a new parole determination and not
immediate release from prison. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (§
1983); Benchoff v. Colleran, 404 F.3d 812, 815 n.4 (3d Cir. 2005) (same); Bogovich v.
Sandoval, 189 F.3d 999, 1003-04 (9th Cir. 1999) (ADA). Thus, the District Court
properly exercised jurisdiction, and we have jurisdiction under 28 U.S.C. § 1291. “We
exercise plenary review of the District Court’s dismissal of [a] Complaint on statute of
limitations grounds under Fed. R. Civ. P. 12(b)(6).” Romero v. Allstate Corp., 404 F.3d
212, 220 (3d Cir. 2005).
       The District Court dismissed Taylor’s due process claim regarding the Board’s

reliance on the nature of his offense because he learned of that alleged injury when the

Board denied parole in 2008 but did not file suit until over four years later after the Board

again denied parole in 2012. That conclusion clearly is correct as to the Board’s denial of

parole in 2008. The District Court did not explain why that circumstance bars Taylor’s

challenges to the 2012 and 2014 denials of parole as well, but it does. The Board’s

reliance on the nature of Taylor’s offense was apparent in 2008 when it expressly cited

that factor in denying parole. Taylor thus knew everything he needed to know to assert

his challenge at that time. The Board’s “identically phrased” reliance on this factor again

in 2012 and 2014 was not “a necessary factual predicate to [this] claim” because the

Board’s reliance on this factor in 2008 “would have been sufficient for [Taylor] to

formulate his complaint.” Benchoff, 404 F.3d at 818.

       Taylor argues that he could not have asserted this claim in 2008 because it is based

on the Board’s “continual” reliance on the nature of his offense and he could not have

known that the Board would continue to rely on it until it did so again in 2012. As the

Board observes, this argument assumes that it was permissible for the Board to rely on

the nature of Taylor’s offense once in 2008 but not thereafter. Taylor has cited no

authority supporting such a proposition, and we are aware of none. The Board’s

continued reliance on this factor also does not make Taylor’s claim timely under a

continuing violation theory because Taylor was or should have been “aware of the

[alleged] injury at the time it occurred” in 2008. Montañez v. Sec’y Pa. Dep’t of Corr.,

773 F.3d 472, 481 (3d Cir. 2014) (quotation marks omitted).
       Much the same analysis applies to Taylor’s due process and ADA claims to the

extent that he challenges the Board’s reliance on his prior substance abuse per se.

Because the Board expressly relied on that factor in 2008, Taylor knew or should have

known of that alleged injury at that time. See, e.g., Bogovich, 189 F.3d at 1003-04

(addressing cognizability of similar claim).

       Taylor’s due process and ADA challenges to the Board’s denial of parole in 2012

and 2014, however, also have another aspect. Taylor does not claim merely that the

Board erred in relying on his past substance abuse per se. Instead, he claims that the

Board’s reliance on his past substance abuse denied him due process and violated the

ADA in light of the information he presented to the Board in those specific parole

applications.

       In particular, Taylor claims to have advised the Board both that the root cause of

his substance abuse was PTSD and that he will be eligible for PTSD treatment if released

but cannot obtain such treatment in prison. Taylor claims that he first learned of these

circumstances in 2009, and he attached documentation supporting that claim to his

amended complaint.3 Taylor further claims that he presented this information to the

Board at his next opportunity to apply for parole and that the Board denied him due


3
  Taylor attached a September 4, 2009 decision from the Department of Veteran Affairs
ruling him eligible for PTSD treatment as a veteran’s benefit. The report notes that
Taylor’s “cocaine and alcohol dependence [is] secondary to PTSD” and that various
factors including Taylor’s incarceration and “lack of mental health treatment are
obstacles in his recovery from PTSD.” (ECF No. 16 at 9-10.) Taylor also attached
correspondence from the Department of Veterans Affairs noting his eligibility for
benefits in general and suggesting that he might qualify for treatment under the Health
Care for Re-Entry Veterans Program only if released from prison. (Id. at 11-12.)
process and violated the ADA by relying on his past substance abuse under these specific

circumstances.

       The District Court did not acknowledge this aspect of Taylor’s claims, and we

cannot conclude at this stage that they are barred by the statute of limitations. The Board

argues that they are because Taylor alleges that he learned of the link between his

substance abuse and PTSD in 2009 but did not file suit until 2012. Taylor, however,

could not have challenged the Board’s 2008 decision on the basis of information that was

not before the Board at that time. Taylor submitted this information to the Board at his

next opportunity to apply for parole, the Board denied that application in 2012, and

Taylor filed suit shortly thereafter. He later sought to further amend his complaint to

challenge the Board’s 2014 denial on this basis as well. Thus, it appears that Taylor

raised these claims within two years of their accrual.

       The Board asks us to affirm the dismissal of these claims on two alternate

grounds, but we decline to do so. First, the Board argues that these claims fail as a matter

of law because the Board did not actually rely on Taylor’s history of substance abuse in

denying parole in 2012 and 2014 as he alleges. As the Board observes, the Board’s 2008

decision expressly states that the Board based its denial in part on Taylor’s “Substance

Abuse History,” but its 2012 and 2014 decisions do not state that it relied on that factor.

       Even assuming that it is appropriate to rely on the 2012 and 2014 Board decisions

themselves, which Taylor did not attach to his amended complaint, that point is not

dispositive at the pleading stage. See Thompson v. Davis, 295 F.3d 890, 896 n.3 (9th

Cir. 2002) (“[W]hile the 1999 Board decision does not disclose the Board’s reliance on
Thompson’s history of substance abuse, the decision does not affirmatively prove that the

Board did not” rely on it.). The 2012 and 2014 Board decisions also suggest that the

Board may indeed have considered Taylor’s past substance abuse because both decisions

recommend that Taylor “work with [his] counselor to develop a plan for continued . . .

substance abuse treatment.” Thus, Taylor’s allegation that the Board relied on his history

of substance abuse is sufficient at the pleading stage.

       Second, the Board argues that Taylor’s claims fail because Taylor has named as

defendants only individual Board members rather than the Board itself. In particular, the

Board argues that (1) the individual Board members whom Taylor has named and served

lack the authority to reconsider the denial of parole on their own and (2) only the Board

itself is a proper defendant on Taylor’s ADA claim. We need not resolve these issues

because it appears that Taylor could remedy these potential defects by further amending

his complaint. The District Court is in a better position to address the propriety of further

amendment if necessary on remand.4

                                             III.


4
  The Board does not otherwise argue that these claims fail to state a claim on the merits,
and we decline to address that issue sua sponte and in the first instance. We note that, as
a matter of substantive due process, the Board may not deny parole “for arbitrary . . .
reasons.” Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). We further note that other
courts have recognized the potential for ADA claims arising from the denial of parole on
the basis of an allegedly disabling drug addiction. See, e.g., Bogovich, 189 F.3d at 1003-
04. At the same time, we and other courts have recognized that parole boards generally
may rely on prisoners’ history of substance abuse when determining their eligibility for
parole. See Thompson, 295 F.3d at 898 n.4; Coady v. Vaughn, 251 F.3d 480, 483, 487
(3d Cir. 2001). Because neither the District Court nor the Board has addressed the merits
of these claims, however, we will leave it for the District Court to do so in the first
instance if necessary on remand.
       For these reasons, we will affirm the District Court’s dismissal of Taylor’s claim

that the Board denied him due process by relying on the nature of his offense. We also

will affirm the District Court’s dismissal of Taylor’s claims that the Board denied him

due process and violated the ADA by relying on his prior substance abuse per se. We

will vacate the denial of those claims to the extent that they challenge the Board’s alleged

reliance on this factor in light of the specific information that Taylor provided in the

parole applications that the Board denied in 2012 and 2014, and we will remand those

claims for further consideration. Because Taylor’s motion for leave to further amend his

complaint does not appear futile to that extent and no longer is moot in light of our ruling,

we will vacate the District Court’s denial of that motion as well.
