                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2007

Fain v. Morgan
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1508




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Recommended Citation
"Fain v. Morgan" (2007). 2007 Decisions. Paper 180.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/180


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-1508
                                     ___________

                                    ANDRE FAIN,
                                                          Appellant

                                           v.

                    EVELYN MORGAN; JUDY M. GAGLIANO;
                      RUBY WASHINGTON; MR. COLAZZO;
                              THOMAS RENAHAN
                     ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                       (D.C. Civil Action No. 06-cv-04404 )
                      District Judge: Honorable Joel A. Pisano
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 15, 2007

                Before: SLOVITER, BARRY and WEIS, Circuit Judges

                         (Opinion filed: November 28, 2007)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Appellant, Andre Fain, proceeding pro se, appeals from the District Court’s orders

dismissing his complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A and denying his
motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). For the reasons that follow,

we will vacate the District Court’s orders and remand for further proceedings.

       Fain filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that

Appellees violated his due process rights by fabricating evidence and falsifying

documents for use at his parole eligibility hearings, by relying on the fabricated evidence

in denying his parole, and by intentionally concealing the fact that such evidence was

used at his eligibility hearings. The District Court sua sponte dismissed Fain’s complaint

pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A for failure to state a claim upon which

relief can be granted. Fain filed a motion for reconsideration, which the District Court

also denied. Fain appeals.

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

a district court’s sua sponte dismissal of a complaint pursuant to § 1915(e)(2) is plenary.

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

       The District Court construed Fain’s complaint as asserting that his due process

rights were violated at his parole revocation hearing and concluded that Fain must raise

his claims in a habeas petition because any challenge to the revocation of his parole

would necessarily imply the invalidity of his confinement. See Heck v. Humphrey, 512

U.S. 477 (1994). Fain asserts, however, because his complaint is challenging the

constitutionality of his parole review hearings, not the validity of his parole revocation

hearing, his claims do not necessarily imply the invalidity of his confinement. We agree.



                                              2
       An inmate may file a § 1983 action for procedural challenges if the action would

not necessarily spell immediate or speedier release for the prisoner. Wilkinson v. Dotson,

544 U.S. 74, 81 (2005). Fain’s complaint is challenging the validity of his parole review

hearings, not his parole revocation hearing. In his motion for reconsideration, Fain

reiterates that, contrary to the District Court’s interpretation, his complaint does not

challenge the validity of his parole revocation hearing, which he concedes was proper.1

Additionally, in his motion for reconsideration, Fain concedes that, even without the

allegedly fabricated evidence, the Parole Review Board still could have denied him parole

at his review hearing. We agree. The Parole Review Board bases its decision to grant or

deny parole on numerous factors. See N.J. A.D.C. 10A:71-3.11. Accordingly, Fain’s

complaint does not necessarily imply the invalidity of his confinement and may be filed

pursuant to § 1983. See Wilkinson, 544 U.S. at 81.

       For the foregoing reason, we will vacate the District Court’s orders and remand for

further proceedings. Fain’s motion for sanctions is denied. See Martin v. Brown, 63 F.3d

1252, 1265 (3d Cir. 1995).




                                              3



   1
      Even if the claims in Fain’s complaint were unclear, the District Court should have
informed Fain that he had leave to amend his complaint, especially in light of Fain’s
motion for reconsideration. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002).
