CLD-196                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1184
                                      ___________

                                    KEITH CAPERS,
                                              Appellant

                                            v.

        GOVERNOR OF NEW JERSEY; COMMISSIONER OF NEW JERSEY
           DEPARTMENT OF CORRECTIONS; MEG A. YATAURO;
               THE ATTORNEY GENERAL OF NEW JERSEY
                 ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Civil No. 2:12-cv-00900)
                     District Judge: Honorable Faith S. Hochberg
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 18, 2013

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: May 7, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Keith Capers, proceeding pro se, appeals from the dismissal of his civil rights

complaint by the United States District Court for the District of New Jersey. For the
reasons discussed below, we will grant Capers‟ motion for summary remand in part and

will summarily affirm in part, vacate in part, and remand for further proceedings. See 3d

Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       In 2000, Capers was convicted of multiple counts of aggravated sexual assault,

kidnapping, and related offenses arising from an attack on his aunt. He was sentenced to

an aggregate term of 38 years‟ incarceration, with an 85% period of parole ineligibility.

At sentencing, the court further allowed Capers to be transferred to the Adult Diagnostic

and Treatment Center for Specialized Sexual Offender Therapy (the “ADTC”) prior to

his release from prison if he was found eligible for treatment.

       Capers asserts that in 2001, his name was wrongfully posted on New Jersey‟s sex

offender registry. He also alleges that in 2004, a representative from the Attorney

General‟s office used force to coerce him to agree to a transfer to the ADTC. Likewise,

he states that in 2005, the Department of Corrections transferred him to the ADTC

without conducting a complete psychological evaluation. Capers also alleges that

Yatauro, the Administrator of the ADTC, punished him for not participating in treatment

therapy by taking away his commutation credits,1 work credits, and special privileges,

wrongfully denied his March 2009 request to be transferred out of the ADTC, and

refused to provide him with a handicapped cell after he suffered a stroke. As relief,


1
 In New Jersey, good-conduct time is referred to as commutation time. See Lewis v.
Dep‟t of Corr., 839 A.2d 933, 934 (N.J. Super. Ct. App. Div. 2004).
                                             2
Capers asks for his name to be removed from the sex offender registry, physical therapy

and psychological counseling, and monetary damages.

       After filing his complaint, Capers sent a letter to the District Court asking that this

matter be consolidated with his complaint filed in Capers v. Holtz, D.N.J. Civ. No. 1:04-

cv-1347. The District Court denied his request to consolidate and dismissed his

complaint sua sponte for failure to state a claim. This appeal followed.

                                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court‟s dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000). To survive dismissal, “a complaint must contain sufficient factual matter,

accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). We review the denial of Capers‟ request to consolidate actions for abuse of

discretion. See Young v. City of Augusta, 59 F.3d 1160, 1169 (11th Cir. 1995). We may

summarily affirm on any basis supported by the record. Murray v. Bledsoe, 650 F.3d

246, 247 (3d Cir. 2011) (per curiam).

                                              III.

       Capers‟ claims regarding the posting of his name on the sex offender registry, his

transfer to the ADTC, and the denial of his request to be transferred out of the ADTC are

subject to New Jersey‟s two-year statute of limitations for personal injury claims. See

Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010); see also N.J. Stat. Ann. §
                                               3
2A:14-2. However, federal law provides that his claims accrued “when [he had] a

complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388 (2007).

Capers‟ claim regarding the sex offender registry accrued in 2001; his claims regarding

his transfer accrued in 2004 and 2005; and his claim regarding his later request for

transfer accrued in 2009. Therefore, the limitations period expired well before Capers

filed his complaint in February 2012.2

       To the extent that Capers‟ assertion regarding the failure to provide him a

handicapped cell alleges an Eighth Amendment violation for inadequate medical

treatment, we first agree with the District Court that Capers has not alleged any personal

involvement by Yatauro in his medical treatment. See Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005). Moreover, Capers has failed to allege that anyone at the ADTC acted

with deliberate indifference to his medical needs by “recklessly disregard[ing] a

substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009)

(alteration in original); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). Indeed,

Capers has acknowledged that the ADTC did provide him treatment for his stroke, as

evidenced by the fact that he was taken to the hospital and then spent a few months in the

medical unit at Southwoods State Prison before returning to the ADTC.


2
  We see no reason to apply New Jersey‟s tolling principle that allows for tolling of the
limitations period “until the injured party discovers, or by exercise of reasonable
diligence and intelligence should have discovered, that he may have a basis for an
actionable claim.” Dique, 603 F.3d at 185 (internal quotation marks omitted). Capers‟
own allegations reveal that he was aware of his claims when the alleged wrongdoing
occurred.
                                             4
       Nevertheless, in light of the liberal construction we must give to pro se pleadings,

see Haines v. Kerner, 404 U.S. 519, 520 (1972), we believe that Capers‟ complaint

contains “sufficient factual matter” to support the plausibility of his claim that his Fifth

Amendment right against self-incrimination was violated because he lost progressive

time credits for failing to speak about his crimes and participate in treatment therapy.

The Fifth Amendment provides that no person “shall be compelled in any criminal

[proceeding] to be a witness against himself.” “Though a prisoner already may have

been convicted and imprisoned, the Fifth Amendment still applies to ensure that [he] not

be compelled to bear witness against himself or to divulge information that might

incriminate him in future criminal proceedings.” Roman v. DiGuglielmo, 675 F.3d 204,

210 (3d Cir. 2012) (citing Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). This right,

however, does not apply in the absence of compulsion. See Lefkowitz v. Cunningham,

431 U.S. 801, 806 (1977).

       In McKune v. Lile, 536 U.S. 24 (2002), a plurality of the Supreme Court held that

no Fifth Amendment violation occurs when a prison‟s imposition of sanctions—

specifically, a reduction in privileges and a transfer to a more secure facility—is based on

a prisoner‟s refusal to participate in a sex offender treatment program that required an

admission of guilt. Id. at 35-39. Justice O‟Connor, whose opinion controls,3 noted that

punishments such as “longer incarceration or execution” would surely implicate a

prisoner‟s liberty interest. Id. at 52, 53 (O‟Connor, J., concurring). The McKune


                                              5
plurality specifically found no Fifth Amendment violation because the inmate‟s decision

did not “affect his eligibility for good-time credits or parole.” Id. at 38; see also id. at 52

(O‟Connor, J., concurring). But see Searcy v. Simmons, 299 F.3d 1220, 1227 (10th Cir.

2002) (finding no compulsion when an inmate lost the “mere opportunity to earn good

time credits”).

       Here, Capers‟ allegation that he has lost work credits and special privileges for

failing to participate in treatment does not rise to the requisite level of compulsion to state

a claim for a Fifth Amendment violation. See Renchenski v. Williams, 622 F.3d 315,

334-35 (3d Cir. 2010) (noting that the loss of a prison job, a reduction in prison wages,

and the loss of privileges does not constitute compulsion). His complaint also alleges

that he lost commutation time because he refused to participate in treatment. To the

extent that Capers is seeking damages for already-lost commutation time, his § 1983

claim is barred by the favorable-termination rule of Heck v. Humphrey, 512 U.S. 477

(1994). See Edwards v. Balisok, 520 U.S. 641, 645-47 (1997); Entzi v. Redmann, 485

F.3d 998, 1003 (8th Cir. 2007).4 Likewise, any claim for declaratory relief that the

procedures employed by the ADTC resulting in the loss of commutation time violated



3
 See Roman, 675 F.3d at 212 n.5.
4
 To the extent that Capers challenges his loss of commutation time and seeks restoration
of that time, he must do so in a habeas petition pursuant to 28 U.S.C. § 2254. See Coady
v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Furthermore, Capers must exhaust his
available state court remedies prior to seeking federal habeas relief for this loss. See
Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Brown v. Fauver, 819 F.2d 395, 397-99
(3d Cir. 1987).
                                               6
due process is not cognizable under § 1983, as such a claim would “necessarily imply the

invalidity of the punishment imposed.” Edwards, 520 U.S. at 648.

       However, to the extent that Capers seeks an injunction to prevent future losses of

commutation time, he might be able to proceed. “Ordinarily, a prayer for such

prospective relief will not „necessarily imply‟ the invalidity of a previous loss of good-

time credits, and so may properly be brought under § 1983.” Id. at 648; see also

Whitlock v. Johnson, 153 F.3d 380, 389 (7th Cir. 1998) (affirming the district court‟s

grant of prospective injunctive relief under § 1983 and noting that “an injunction to

restore revoked good-time credits may only be sought in habeas corpus proceedings”).

Given leave to amend, Capers may be able to sufficiently plead more specific facts to

support the plausibility of a clam that the threatened future loss of commutation time for

his failure to participate in treatment constitutes a Fifth Amendment violation.5 While we

express no view as to whether Capers will eventually plead meritorious claims or whether

defenses will prove to be dispositive, his complaint provides adequate notice of his claim.

                                            IV.

       For the foregoing reasons, we grant Capers‟ motion for summary remand in part

and will summarily affirm in part and vacate in part the District Court‟s order dismissing




5
 We leave it to the District Court to determine in the first instance whether such a
properly pleaded claim would be barred by the rule of Heck and Edwards.
                                              7
Capers‟ complaint and remand for further proceedings consistent with this opinion.6 See

3d Cir. L.A.R. 27.4; I.O.P. 10.6.




6
  We further agree that the District Court did not abuse its discretion in denying Capers‟
request to consolidate the underlying case with the action at D.N.J. Civ. No. 1:04-cv-
1347. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982)
(management of its docket is committed to the sound discretion of the district court). Not
only had the other action been dismissed, but the divergent issues presented in the two
suits counseled against consolidation.
                                            8
