NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-3213 ____________
BERLIN VANARDO BROWN, Appellant
v.
CCPM G. CLEMENS, PREA Coordinator SCI-Camp Hill; PAROLE AGENT PATIA, Employee of the Pennsylvania Dept. of Parole and Probation - SCI-Dallas; CORRECTIONAL OFFICER BENNINGS, SCI-Camp Hill; COUNSELOR RHOADES, SCI-Camp Hill; SUPERINTENDENT L. HARRY, SCI- Camp Hill; SUPERINTENDENT RANSOM, SCI-Dallas; TONYA HEIST, Grievance Coordinator SCI-Camp Hill; KERI MOORE, Chief Grievance Coordinator PA DOC; PAROLE AGENT SCHEALEY LAYTON, Officer, Pennsylvania Board of Probation and Parole; PAROLE SUPERVISOR BITTNER, Pennsylvania Board of Probation and Parole; BOARD SECRETARY DEBORAH CARPENTER, Pennsylvania Board of Probation and Parole; JOHN E. WETZEL, Pennsylvania Department of Corrections ____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3-22-cv-01067) Magistrate Judge: Honorable Joseph F. Saporito, Jr. * ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 2, 2024
Before: SHWARTZ, MATEY and FISHER, Circuit Judges.
(Filed: October 29, 2024)
* Honorable Joseph F. Saporito, Jr., assumed office as Judge of the United States District Court for the Middle District of Pennsylvania on August 13, 2024. ____________
OPINION** ____________
FISHER, Circuit Judge.
While serving a sentence for a drug offense at the State Correctional Institution–
Dallas, Brown was granted parole under Pennsylvania’s Recidivism Risk Reduction
Initiative (RRRI), making him eligible for release on November 26, 2020. However,
Brown tested positive for COVID-19 on November 22, so he could not ride the
Greyhound bus home as he had planned. Brown did not have anyone who could give him
a ride, so he quarantined in prison. After his quarantine, Brown learned his parole had
been decertified—essentially, Brown was made ineligible for parole before he was
released from the prison, as opposed to a revocation or rescission once released. He was
not released until January 2022.
Brown sued multiple corrections officials, alleging that this decertification
violated his rights under the Eighth and Fourteenth Amendments, Section 504 of the
Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, and the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12131, et seq., as well as an Eighth Amendment claim
concerning a strip search, and a First Amendment retaliation claim for his subsequent
** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 exercise of grievance procedures. The District Court granted the corrections officials’
motion to dismiss. Brown only appeals the claims concerning the decertification decision.
We will affirm dismissal of the Fourteenth and Eighth Amendment claims. However, the
District Court abused its discretion by dismissing the ADA and RA claims without leave
to amend. Accordingly, we will vacate and remand those claims with instructions to
dismiss with leave to amend.1
We exercise de novo review on appeals from motions to dismiss.2 To determine
whether Brown was owed process, we must first determine whether he asserts a protected
liberty interest.3 The Fourteenth Amendment protects only those interests arising from the
Due Process Clause or state law.4 There is no constitutional interest in parole.5
Pennsylvania law grants parolees a “liberty interest in the limited liberty offered by
parole that cannot be taken away without affording the parolee minimal due process
guarantees,” although this interest is only activated when parole is granted—upon the
Board issuing its parole release order and the prisoner signing the acknowledgement of
1 The District Court had jurisdiction under 28 U.S.C. § 1331 (federal questions). We have jurisdiction under 28 U.S.C. § 1291 (final decisions of district courts). 2 PG Publ. Co. v. Aichele, 705 F.3d 91, 97 (3d Cir. 2013). 3 Newman v. Beard, 617 F.3d 775, 782 (3d Cir. 2010). 4 Id. at 783. 5 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”).
3 the conditions,6 or when a prisoner is actually released.7 Accordingly, Brown’s reliance
on cases concerning other states’ parole programs is misplaced. Although the parole
systems in New Jersey8 and Oklahoma9 create an expectation of release and a subsequent
liberty interest, the RRRI explicitly disclaims a liberty interest in parole determinations
before an inmate’s release.10 Until then, “[t]he decision to grant, rescind, or revoke parole
is one purely of administrative, not judicial, discretion,”11 allowing the parole board to “at
any time rescind an order granting parole until it is ‘executed’—i.e., the inmate is
released on parole.”12
Brown lacked an executed order. He had a grant of parole from the Parole Board,
but there is nothing in the record to suggest that Brown signed the acknowledgement of
parole conditions, thereby constituting execution of the order. He was also not released
from prison. Therefore, Brown was not entitled to due process for the decertification of
his parole decision under Pennsylvania law. While we are concerned with the lack of
6 Johnson v. Pa. Bd. of Prob. & Parole, 532 A.2d 50, 52 (Pa. Commw. Ct. 1987). 7 Nieves v. Pa. Bd. of Prob. & Parole, 995 A.2d 412, 418 (Pa. Commw. Ct. 2010) (explaining that because the defendant had “not yet been released on parole . . . he cannot assert due process rights”). 8 Watson v. DiSabato, 933 F. Supp. 390, 392 (D.N.J. 1996). 9 Harper v. Young, 64 F.3d 563, 564–65 (10th Cir. 1995). 10 61 Pa. Cons. Stat. § 4506(d) (“Nothing in this section shall be interpreted as granting a right to be paroled to any person . . . .”); see also Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Commw. Ct. 1997) (“[I]n Pennsylvania, a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his or her maximum term.”). 11 Johnson, 532 A.2d at 53. 12 Fantone v. Latini, 780 F.3d 184, 190 (3d Cir. 2015).
4 communication surrounding Brown’s parole decertification, the District Court was
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-3213 ____________
BERLIN VANARDO BROWN, Appellant
v.
CCPM G. CLEMENS, PREA Coordinator SCI-Camp Hill; PAROLE AGENT PATIA, Employee of the Pennsylvania Dept. of Parole and Probation - SCI-Dallas; CORRECTIONAL OFFICER BENNINGS, SCI-Camp Hill; COUNSELOR RHOADES, SCI-Camp Hill; SUPERINTENDENT L. HARRY, SCI- Camp Hill; SUPERINTENDENT RANSOM, SCI-Dallas; TONYA HEIST, Grievance Coordinator SCI-Camp Hill; KERI MOORE, Chief Grievance Coordinator PA DOC; PAROLE AGENT SCHEALEY LAYTON, Officer, Pennsylvania Board of Probation and Parole; PAROLE SUPERVISOR BITTNER, Pennsylvania Board of Probation and Parole; BOARD SECRETARY DEBORAH CARPENTER, Pennsylvania Board of Probation and Parole; JOHN E. WETZEL, Pennsylvania Department of Corrections ____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3-22-cv-01067) Magistrate Judge: Honorable Joseph F. Saporito, Jr. * ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 2, 2024
Before: SHWARTZ, MATEY and FISHER, Circuit Judges.
(Filed: October 29, 2024)
* Honorable Joseph F. Saporito, Jr., assumed office as Judge of the United States District Court for the Middle District of Pennsylvania on August 13, 2024. ____________
OPINION** ____________
FISHER, Circuit Judge.
While serving a sentence for a drug offense at the State Correctional Institution–
Dallas, Brown was granted parole under Pennsylvania’s Recidivism Risk Reduction
Initiative (RRRI), making him eligible for release on November 26, 2020. However,
Brown tested positive for COVID-19 on November 22, so he could not ride the
Greyhound bus home as he had planned. Brown did not have anyone who could give him
a ride, so he quarantined in prison. After his quarantine, Brown learned his parole had
been decertified—essentially, Brown was made ineligible for parole before he was
released from the prison, as opposed to a revocation or rescission once released. He was
not released until January 2022.
Brown sued multiple corrections officials, alleging that this decertification
violated his rights under the Eighth and Fourteenth Amendments, Section 504 of the
Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, and the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12131, et seq., as well as an Eighth Amendment claim
concerning a strip search, and a First Amendment retaliation claim for his subsequent
** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 exercise of grievance procedures. The District Court granted the corrections officials’
motion to dismiss. Brown only appeals the claims concerning the decertification decision.
We will affirm dismissal of the Fourteenth and Eighth Amendment claims. However, the
District Court abused its discretion by dismissing the ADA and RA claims without leave
to amend. Accordingly, we will vacate and remand those claims with instructions to
dismiss with leave to amend.1
We exercise de novo review on appeals from motions to dismiss.2 To determine
whether Brown was owed process, we must first determine whether he asserts a protected
liberty interest.3 The Fourteenth Amendment protects only those interests arising from the
Due Process Clause or state law.4 There is no constitutional interest in parole.5
Pennsylvania law grants parolees a “liberty interest in the limited liberty offered by
parole that cannot be taken away without affording the parolee minimal due process
guarantees,” although this interest is only activated when parole is granted—upon the
Board issuing its parole release order and the prisoner signing the acknowledgement of
1 The District Court had jurisdiction under 28 U.S.C. § 1331 (federal questions). We have jurisdiction under 28 U.S.C. § 1291 (final decisions of district courts). 2 PG Publ. Co. v. Aichele, 705 F.3d 91, 97 (3d Cir. 2013). 3 Newman v. Beard, 617 F.3d 775, 782 (3d Cir. 2010). 4 Id. at 783. 5 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”).
3 the conditions,6 or when a prisoner is actually released.7 Accordingly, Brown’s reliance
on cases concerning other states’ parole programs is misplaced. Although the parole
systems in New Jersey8 and Oklahoma9 create an expectation of release and a subsequent
liberty interest, the RRRI explicitly disclaims a liberty interest in parole determinations
before an inmate’s release.10 Until then, “[t]he decision to grant, rescind, or revoke parole
is one purely of administrative, not judicial, discretion,”11 allowing the parole board to “at
any time rescind an order granting parole until it is ‘executed’—i.e., the inmate is
released on parole.”12
Brown lacked an executed order. He had a grant of parole from the Parole Board,
but there is nothing in the record to suggest that Brown signed the acknowledgement of
parole conditions, thereby constituting execution of the order. He was also not released
from prison. Therefore, Brown was not entitled to due process for the decertification of
his parole decision under Pennsylvania law. While we are concerned with the lack of
6 Johnson v. Pa. Bd. of Prob. & Parole, 532 A.2d 50, 52 (Pa. Commw. Ct. 1987). 7 Nieves v. Pa. Bd. of Prob. & Parole, 995 A.2d 412, 418 (Pa. Commw. Ct. 2010) (explaining that because the defendant had “not yet been released on parole . . . he cannot assert due process rights”). 8 Watson v. DiSabato, 933 F. Supp. 390, 392 (D.N.J. 1996). 9 Harper v. Young, 64 F.3d 563, 564–65 (10th Cir. 1995). 10 61 Pa. Cons. Stat. § 4506(d) (“Nothing in this section shall be interpreted as granting a right to be paroled to any person . . . .”); see also Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Commw. Ct. 1997) (“[I]n Pennsylvania, a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his or her maximum term.”). 11 Johnson, 532 A.2d at 53. 12 Fantone v. Latini, 780 F.3d 184, 190 (3d Cir. 2015).
4 communication surrounding Brown’s parole decertification, the District Court was
correct in dismissing Brown’s due process claim.
Brown also argues that the decertification of his parole amounted to cruel and
unusual punishment. He characterizes the additional fourteen months he spent in custody
as a miscalculation of his sentence and argues that this additional time served no
penological purpose. Doubtless, “imprisonment beyond one’s term constitutes
punishment within the meaning of the [E]ighth [A]mendment.”13 But holding a prisoner
for the duration of the initial sentence is not without penological purpose. Although
Brown argues that he was only forced to remain in prison because he contracted COVID-
19, he mischaracterizes the additional fourteen months of his incarceration. Brown was
not incarcerated beyond his maximum sentence since he was released in January 2022,
pursuant to the sentence imposed during his criminal trial. Because Brown failed to plead
that decertification of his parole subjected him to incarceration beyond his maximum
sentence, he cannot state an Eighth Amendment claim based on the length of his
imprisonment. Therefore, we agree with the District Court’s dismissal of the Eighth
Amendment claim.
Finally, Brown argues that the decertification of his parole was a violation of his
rights under the ADA and RA because, “[d]ue to the virus and the resulting
13 Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989).
5 discrimination, he spent an additional 14 months in prison.”14 To obtain relief under
either statute, Brown “must allege that he is a qualified individual with a disability, who
was precluded from participating in a program, service, or activity, or otherwise was
subject to discrimination, by reason of his disability.”15
The District Court dismissed Brown’s claims under the ADA and RA without
leave to amend on the basis that the complaint failed to allege any facts supporting an
inference that Brown’s parole was decertified because of a disability. While the District
Court was correct that the initial complaint failed to state a claim, it abused its discretion
by dismissing without leave to amend.16 Although “appellate courts should not be quick
to reverse such decisions,” “the liberal pleading philosophy of the federal rules does limit
a district court’s discretion to deny leave to amend.”17 When a complaint is vulnerable to
dismissal for failure to state a claim, the court “must” grant leave to amend if there is no
“undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment,”
regardless of whether the plaintiff has sought leave to amend.18 Here, the District Court
dismissed without leave to amend on the basis that amendment would be futile. That was
error.
Appellant’s Br. 13. 14
Furgess v. Pa. Dep’t of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019). 15 16 Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013). 17 Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008). 18 Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); see also Fed. R. Civ. P. 15(a).
6 We review dismissals without leave to amend for abuse of discretion.19 “‘Futility’
means that the complaint, as amended, would fail to state a claim upon which relief could
be granted.”20 However, “[i]f the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test
his claim on the merits.”21 Although Brown’s initial complaint failed to state claims
cognizable under the ADA and RA, it is possible that Brown could replead the specifics
of his alleged disabilities to demonstrate a plausible claim.22 As a result, Brown should
have been afforded the opportunity to amend his claims under the ADA and RA to cure
the pleading deficiencies noted by the District Court.
For the foregoing reasons, we will affirm the District Court’s ruling on the
Fourteenth and Eighth Amendment claims, vacate the ruling on the ADA and RA claims,
and remand with instructions to dismiss the ADA and RA claims with leave to amend.
19 Connelly, 703 F.3d at 217. 20 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). 21 Foman v. Davis, 371 U.S. 178, 182 (1962). 22 See Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214, 224 (3d Cir. 2024) (“The ADA, as amended, specifically precludes relief for actual or regarded as claims that are both objectively ‘transitory and minor.’ An impairment lasting fewer than six months is transitory, but may not be minor, and therefore may still be regarded as a disability.” (quoting 42 U.S.C. § 12102(3)(B))).