                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2005

Jones v. Maher
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3993




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"Jones v. Maher" (2005). 2005 Decisions. Paper 1171.
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AMENDED DPS-134                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                NO. 04-3993
                              ______________

                             JOHN H. JONES;
                          TIMOTHY R. JOHNSON

                                       v.

          JOSEPH MAHER; EDWIN HESSE, of JJ Peters Institute;
         WILLIAM F. WARD, of PA PBPP; NORMAN DEMMING,
         Program Manager; PATRICIA BLIZZARD, P.O. Supervisor;
           PATRICIA GINOCCHETTI, C.H.A.; JERRY WRIGHT;
                  CHRIS PUTNAM, Manager of A Block;
            THOMAS WASILEWSKI; RICH KELLER, Counselor

                              Timothy R. Johnson,
                                      Appellant
                  ____________________________________

               On Appeal From the United States District Court
                    For the Middle District of Pennsylvania
                          (D.C. Civ. No. 03-cv-00085)
                District Judge: Honorable Richard P. Conaboy
               _______________________________________
       Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                               February 10, 2005

              Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                            (Filed: May 17, 2005)


                                 OPINION
                         _______________________

PER CURIAM.
       Timothy Johnson, an inmate at the State Correctional Institution at Dallas,

Pennsylvania, is serving a 3.5 to 20 year sentence imposed in 1992 for a rape conviction.

In 2003, Johnson (along with another inmate, who is no longer a party to this action) filed

an Amended Complaint in which he raised seven claims: (1) the defendants improperly

required him to complete institutional programs that are non-existent or have no

rehabilitative value in order to gain favorable parole consideration; (2) the defendants

conspired in developing a discriminatory sex offender program thereby violating his equal

protection rights; (3) the defendants maliciously labeled him a sex offender, and altered

his program to reflect that he had not completed any institutional rehabilitation programs;

(4) the defendants violated the Eighth Amendment by exposing him to environmental

tobacco smoke; (5) he suffered retaliatory treatment for submitting institutional

grievances including verbal threats and transfer to a smoking cell block; (6) the

defendants conspired to enhance his sentence, violating the Ex Post Facto Clause; and (7)

intentional infliction of emotional distress and slander.1 As to all of his claims, Johnson

sought monetary damages, and as to his parole-related claims, he also sought release from

custody.

       Defendants Maher and Hesse filed a motion to dismiss the Amended Complaint,



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          In his cross-motion for summary judgment and again in his notice of appeal, Johnson
raised an additional claim that the sex offender program violates the Fifth Amendment because it
requires program participants to admit their guilt. The District Court correctly rejected this claim
as not properly presented, and this Court does not address issues presented for the first time on
appeal. See Tara M. by Kanter v. City of Philadelphia, 145 F.3d 625, 628 n.1 (3d Cir. 1998).

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which the District Court granted. The remaining defendants subsequently filed a motion

for summary judgment, which the District Court granted. The District Court found that

Johnson failed to exhaust administrative remedies regarding his claims that he was

subjected to discriminatory parole consideration and retaliatory conduct. The District

Court also found there were insufficient facts to support a conspiracy claim.

Furthermore, the court found no equal protection violation because Johnson failed to

show that the defendants engaged in intentional or purposeful discrimination, or that they

treated Johnson differently from similarly situated individuals on the basis of his race or

the fact that he is a sex offender. Concerning the alleged retaliatory transfer, the court

found that there were no allegations that the defendants had any personal involvement in

retaliating against or transferring Johnson, that his request for transfer back to the smoke-

free Cell Block A is moot because he was already afforded that relief, and the exercise of

Johnson’s constitutional rights was not a substantial or motivating factor in his transfer to

another cell block. The District Court found that neither injunctive nor monetary relief is

appropriate for Johnson’s Ex Post Facto claim, and that the proper method of raising his

constitutional challenge to the denial of parole is by filing a petition for writ of habeas

corpus. Finally, because the District Court rejected all the federal claims, it declined to

exercise jurisdiction over Johnson’s pendent state law claims.

       Johnson timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. §

1291. He has been granted leave to proceed in forma pauperis on appeal. When an



                                               3
appellant proceeds in forma pauperis, this Court must dismiss the appeal if it is

“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A frivolous appeal has no arguable basis in

law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful review of the

record, we will dismiss this appeal as frivolous.

       The Prison Litigation Reform Act provides that “[n]o action shall be brought . . .

by a prisoner . . . until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S.

516, 532 (2002). To satisfy this requirement, a prisoner must exhaust all available

administrative remedies prior to filing suit. Ahmed v. Dragovich, 297 F.3d 201, 209 (3d

Cir. 2002). Here, as the District Court correctly found, Johnson filed several written

grievances concerning his claims of discriminatory parole consideration and retaliation,

but did not seek final administrative review of these grievances. Johnson’s contention

that the grievance process was technically exhausted because he subjectively believed his

administrative remedy is inadequate is unavailing. See id. Thus, the District Court

correctly dismissed these claims.

       Next, we agree with the District Court that Johnson failed to allege any facts to

support a claim that the defendants intentionally or purposefully discriminated against

him based upon his race or status as a sex offender. See Wilson v. Schillinger, 761 F.2d



                                             4
921, 929 (3d Cir. 1985). Thus, the District Court properly dismissed his equal protection

claim. The District Court also correctly dismissed Johnson’s conspiracy claim, as his

broad and conclusory allegations were insufficient to state a viable claim under 42 U.S.C.

§ 1985. See D.R. by L.R. v. Middle Bucks County Vocational Technical Sch., 972 F.2d

1364, 1377 (3d Cir. 1992).

       In addition, Johnson’s claim regarding his transfer to a smoking cell block lacks

merit because he did not allege any facts to indicate that the defendants had personal

involvement in his transfer, except possibly as to defendant Putnam, who allegedly stated

to Johnson that he was appropriately housed. See Sutton v. Rasheed, 323 F.3d 236, 249

(3d Cir. 2003). In any event, Johnson’s allegations of retaliation do not satisfy the

standard set forth in Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Therefore, this

claim was properly dismissed.

       The District Court also correctly concluded that Johnson’s Ex Post Facto claim for

monetary damages is premature until the basis for the parole denial is rendered invalid.

See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In addition, the District Court did

not err by dismissing Johnson’s Ex Post Facto challenge seeking conditional release as

not properly raised in a § 1983 action. See Edwards v. Balisok, 520 U.S. 641, 648

(1997). Johnson may reassert his Ex Post Facto claim or other constitutional challenge to

the denial of his parole via a properly filed federal habeas corpus petition. See Coady v.

Vaughn, 251 F.3d 480 (3d Cir. 2001) (holding that a challenge to the constitutionality of



                                              5
parole denial may be brought in 28 U.S.C. § 2254 habeas proceeding). Finally, because

all the federal constitutional claims were properly dismissed, the District Court properly

declined jurisdiction over Johnson’s supplemental state law claims. See 28 U.S.C. §

1367(c)(3).

       In sum, because Johnson’s appeal lacks arguable merit, we will dismiss this appeal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). As noted, the dismissal of Johnson’s civil

rights complaint does not preclude him from seeking habeas relief (after properly

exhausting state court remedies) with regard to the alleged constitutional violations in the

denial of parole. Johnson’s motion for appointment of counsel, “Motion to Receive Legal

Supplies,” and “Supplemental Addendum” seeking to join Donald Jones as a defendant

are denied. In addition, Johnson’s request for injunctive relief is denied, as such relief is

not appropriately sought in this Court in the first instance.




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