Thrower v. New Jersey State Parole Board

DLD-148 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3919
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CURTIS THROWER,
Appellant
v.
THE NEW JERSEY STATE PAROLE BOARD;
PAROLE OFFICER FARMER; PAROLE OFFICER MORGAN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 08-cv-01454)
District Judge: Honorable Garrett E. Brown, Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 24, 2011
Before: BARRY, FISHER AND ROTH, Circuit Judges
(Opinion filed: July 20, 2011)
_________
OPINION
_________
PER CURIAM
Curtis Thrower, proceeding pro se, appeals from the District Court’s partial
dismissal of his complaint and entry of summary judgment against him. For the reasons
that follow, we will summarily affirm the judgment of the District Court.
Thrower initiated the instant action in the United States District Court for the
District of New Jersey in March 2008. In his complaint, Thrower alleged that Parole
Officer Farmer fabricated information regarding several positive drug tests which
resulted in the revocation of his parole. He maintained that this was done in retaliation
for Thrower’s filing of a lawsuit against a former employee of the Essex County Jail,
John Ferrante, who Thrower maintained Officer Farmer was friends with or was related
to. Thrower also named the New Jersey State Parole Board and Officer Farmer’s
supervisor, Parole Officer Morgan, as defendants. He maintained that the Parole Board
relied on falsified evidence in revoking his parole, and that Officer Morgan was complicit
in Officer Farmer’s misdeeds.
Reviewing the complaint under 28 U.S.C. § 1915(e)(2)(B), the District Court
dismissed Thrower’s claims against the Parole Board and Officer Morgan. The Court
held that the Parole Board was not a “person” within the meaning of 42 U.S.C. § 1983.
See Madden v. N.J. State Parole Bd., 438 F.2d 1189, 1190 (3d Cir. 1971). With respect
to the allegations that Officers Farmer and Morgan fabricated the results of Thrower’s
urine tests to have his parole revoked, the Court held that any such falsification, in and of
itself, would not constitute a constitutional violation, where, as here, Appellant had the
opportunity to rebut those charges at a Parole Board Hearing. See Smith v. Mensinger,
293 F.3d 641, 654 (3d Cir. 2002) (explaining that “so long as certain procedural
requirements are satisfied, mere allegations of falsified evidence or misconduct reports,
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without more, are not enough to state a due process claim”); Hanrahan v. Lane, 747 F.2d
1137, 1140 (7th Cir. 1984) (holding that the procedural safeguards set out in Wolff v.
McDonnell, 418 U.S. 539, 558 (1974), provide sufficient constitutional protection from
arbitrary action of law enforcement officers). To the extent he sought to challenge the
outcome of his Parole Board hearing and gain his release from prison, the Court held that
his sole remedy was to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973). Thrower also sought
monetary damages from defendants, which relief the Court held was barred under Heck
v. Humphrey, 512 U.S. 477, 487 (1994). Based on the allegations in the complaint, the
Court allowed to proceed Thrower’s claim that Officer Farmer harassed him and
fabricated the results of his drug tests in retaliation for his filing of a lawsuit against
someone who was allegedly either a friend or relative of Officer Farmer. See Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001).
After a period of discovery, Thrower filed a motion for summary judgment in
which he primarily attacked the evidence used to revoke his parole. He claimed that
Officer Farmer did not follow protocol in collecting his urine sample or determining
whether any positive result could have been based on his use of prescribed medication.
He did not address the fact that he signed several “admission of use” forms, though he
did attach them to his motion. Officer Farmer filed a cross-motion for summary
judgment, highlighting these forms, one dated October 31, 2007, in which Thrower
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admitted to using opiates, one dated November 20, 2007, in which Thrower admitted to
using heroin on November 18, and one dated January 14, 2008, in which Thrower
admitted to using oxycontin and percocet on January 10 and 11. (Pl.’s Mot. for Summ.
J., Ex. C.) Additionally, Thrower tested positive for morphine on January 12, 2008. (Id.)
Thrower had a parole revocation hearing on February 6, 2008, at which he and Parole
Officers Farmer, Bashiti, and Morgan testified. Following the hearing, the Hearing
Officer sustained the charges that Thrower had used drugs and failed to complete the
Halfway Back Program, and recommended that his parole be revoked. The Parole Board
Panel agreed and imposed a fourteen-month future eligibility term. Thrower appealed the
Board Panel decision to the full Parole Board, which affirmed.
Officer Farmer argued that she was entitled to entry of summary judgment on
Thrower’s retaliation claim because he failed to offer any evidence to substantiate his
allegations either that he was subjected to an adverse action by Officer Farmer or that his
filing of a lawsuit against John Ferrante and Essex County Jail was a substantial
motivating factor in Officer Farmer’s decision to take any such adverse action. See
Rauser, 241 F.3d at 333 (explaining that in order to succeed on a First Amendment
retaliation claim, the plaintiff must prove that: (1) he engaged in constitutionally
protected conduct; (2) he was subjected to an adverse action by a state actor; and (3) the
protected activity was a substantial motivating factor in the state actor’s decision to take
the alleged adverse action). The District Court agreed with Officer Farmer, holding that
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Thrower had failed to demonstrate that Officer Farmer took any adverse action against
him, as she did not conduct the allegedly faulty drug tests, nor did she make the final
decision whether to revoke Thrower’s parole. As the Court noted, Thrower’s filings were
primarily addressed to the veracity of the evidence submitted at the parole revocation
hearing, and the Parole Board’s ultimate decision to revoke his parole. As the conduct of
the parole revocation proceedings is not the proper subject of a section 1983 action, and
Thrower failed to submit any competent, reliable evidence to substantiate his assertions
that Officer Farmer fabricated the evidence against him in retaliation for his filing of a
lawsuit, the District Court denied his motion for summary judgment and granted Officer
Farmer’s motion. Thrower appealed and requested the appointment of counsel on appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the District Court’s decision to grant a motion to dismiss de novo. See Dique v. N.J.
State Police, 603 F.3d 181, 188 (3d Cir. 2010). We also exercise plenary review over the
District Court’s entry of summary judgment, viewing the underlying facts and all
reasonable inferences therefrom in the light most favorable to the non-moving party. See
Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). Summary judgment is
appropriate only if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). A party asserting that
there is a genuine dispute as to a material fact must support that assertion with specific
citations to the record. See Fed. R. Civ. P. 56(c).
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We agree with the District Court’s resolution of Thrower’s claims. The bulk of
his arguments are directed to the evidence that was used to revoke his parole. As these
arguments are essentially directed to the legality of his confinement, we agree that they
are not the proper subject of a section 1983 action. With respect to Thrower’s retaliation
claim, he submits no evidence other than his own assertions to support the theory that
Officer Farmer fabricated information regarding his drug use in retaliation for his filing
of a lawsuit against Essex County Jail and its former employee. Because we conclude
that this appeal presents no “substantial question,” we will summarily affirm the
judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6. Thrower’s motions
for the appointment of counsel and to expedite his appeal are denied as moot.
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