Jones v. Maher

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Precedential or Non-Precedential: Non-Precedential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AMENDED DPS-134 NOT PRECEDENTIAL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,
1
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
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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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