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


10-19-2005

Poole v. Dept of Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4260




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Recommended Citation
"Poole v. Dept of Corr" (2005). 2005 Decisions. Paper 381.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/381


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RESUBMIT HPS-61                                                 NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4260
                                   ________________

                                  SAMUEL T. POOLE,

                                            Appellant

                                             v.

                D.O.C.; PA. BOARD OF PROBATION AND PAROLE;
                           SUPERINTENDENT PATRICK
                     ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                             (D.C. Civ. No. 04-cv-00096J)
                       District Judge: Honorable Kim R. Gibson
                    _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  October 11, 2005
         SCIRICA, CHIEF JUDGE, WEIS AND GARTH, CIRCUIT JUDGES

                                (Filed October 19, 2005)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM.

             Samuel T. Poole, a prisoner, appeals from the order of the United States

District Court for the Western District of Pennsylvania granting the defendants’ motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
              In May 2004, Poole filed a civil rights complaint against the Pennsylvania

Department of Corrections, the Superintendent of S.C.I. Houtzdale, and the Pennsylvania

Board of Probation and Parole, alleging that they (1) tried to force him to participate in

drug rehabilitation programs that Poole’s sentencing order did not require; (2) denied him

parole in April 2003, based on his refusal to complete the prison drug rehabilitation

program, even though he had completed another drug rehabilitation program (the Green

Tree program) while he was in Delaware awaiting trial; (3) denied him parole based on

the results of an untimely and procedurally deficient technical parole violation hearing;

and (4) retaliated against him for refusing to take part in prison drug rehabilitation by

prohibiting him from attaining “2R status,” allegedly causing him to be ineligible for a

drug program in Chester, a job change, and for a transfer to another prison. He sought

damages and immediate release to a half-way house drug rehabilitation program. The

defendants moved to dismiss pursuant to Rule 12(b)(6).

              The Magistrate Judge recommended dismissing the action for failure to

state a claim, finding that (1) to the extent that Poole challenged the execution of his

sentence and sought release from custody, § 1983 was not available under Preiser v.

Rodriguez, 411 U.S. 475 (1973); (2) Poole had no cognizable federally protected liberty

interest in release on parole in the absence of a state mandated expectation of release, and

(3) Poole failed to exhaust his administrative remedies on all of his § 1983 claims. By

order entered October 14, 2004, the District Court overruled Poole’s objections, adopted



                                              2
the Magistrate Judge’s Report, granted the Rule 12(b)(6) motion, and dismissed the

complaint for failure to state a claim upon which relief could be granted. Poole filed a

timely Rule 60(b) motion that the District Court denied in April 2005. Poole filed a

timely notice of appeal.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. Poole has been granted

leave to proceed IFP on appeal. Under § 1915(e)(2)(B), the Court must dismiss an appeal

if it (i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be

granted, or (iii) seeks monetary damages from a defendant with immunity. An appeal can

be frivolous for either legal or factual reasons. Neitzke v. Williams, 490 U.S. 319, 325

(1989).

              Substantially for the same reasons set forth by the District Court, we

conclude that Poole’s civil rights complaint was properly dismissed for failure to state a

claim. The District Court correctly determined that Poole’s sentencing claim was not

cognizable in a civil rights action under Preiser, as he sought immediate release from

prison. Such relief may only be granted through a writ of habeas corpus. See Coady v.

Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001).

              Poole’s due process claims for damages regarding the denial of parole are

barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). If the success of a § 1983

damages suit “would necessarily imply the invalidity of [a] conviction or sentence,” a

claim is cognizable only if the plaintiff can prove that the conviction or sentence has been



                                                3
reversed, invalidated, or called into question by a grant of federal habeas corpus relief.

Heck, 512 U.S. at 486-87. Poole’s attack on the integrity of the decision to deny parole

necessarily implicates the validity of the parole decision, and he has not shown that the

decision has been invalidated.

              Turning to the retaliation claim, Poole asserts in his Complaint that

correctional officers not named in this suit retaliated against him because he refused to

enter and complete the prison drug rehabilitation program. He claims that he refused to

participate in the prison drug rehabilitation program because he had already successfully

completed a program while he was incarcerated in Delaware and because he had a low

opinion of the prison program itself. Assuming that Poole exhausted his administrative

remedies, the retaliation claim is barred as to the Department of Corrections and the

Board of Probation and Parole. See Will v. Michigan Dep’t of State Police, 491 U.S. 58

(1989) (holding that states, state agencies, and state officials acting in their official

capacities are not “persons” subject to suit under 42 U.S.C. § 1983). To the extent that

Poole sues Defendant Patrick in his individual capacity for the retaliatory acts of the

nonparty officers, he fails to state a claim. The Complaint is devoid of any fact from

which we can infer that Patrick was personally involved in the alleged retaliatory acts and

Patrick is not liable under § 1983 on a theory of respondeat superior. See Rode v.




                                               4
Dellarciprete, 895 F.2d 1195, 1207 (3d Cir. 1988).1

              We conclude that the District Court’s denial of Poole’s motion for relief

from judgment under Rule 60(b) was not an abuse of discretion. See Rolo v. City

Investing Co. Liquidating Trust, 155 F.3d 644, 653 (3d Cir. 1998). Relief from judgment

under Rule 60(b) is extraordinary and may be invoked only upon a showing of

exceptional circumstances. Harris v. Martin, 834 F.2d 361, 364 (3d Cir. 1988). Poole

failed to show any exceptional circumstances, and we find none on this record, that

warrant disturbing the finality of the judgment in this case.

              Accordingly, because Poole’s appeal lacks arguable merit, we will dismiss

it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000). Appellant’s motion for appointment of counsel is denied.




       1
          In his Objections, Poole asserted for the first time that the nonparty correctional
officers retaliated against him after he filed a grievance against them by adding two non-
drug related programs to the list of prescriptive programs he must complete before he can
be eligible for release on parole. This belated retaliation claim fails as to all of the named
defendants for the same reasons that the original retaliation claim fails to state a claim
upon which relief can be granted.

                                              5
