NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 17-3011 _____________
FRANK E. ANDREW, Appellant
v.
TODD BUSKIRK; FRANK LONGENBACH; ROBIN STANLEY ______________
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 5-16-cv-03851) District Judge: Honorable Lawrence F. Stengel ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10, 2018 ______________
Before: GREENAWAY, JR., RESTREPO and BIBAS, Circuit Judges.
(Opinion Filed: November 19, 2018) ______________
OPINION* ______________
RESTREPO, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Appellant Frank Andrew claims that several Pennsylvania prison officials violated
his constitutional rights by detaining him past the expiration of his maximum term of
imprisonment. The District Court found that no such over-detention occurred and that the
officials were entitled to summary judgment on the claims. We will affirm.
I
Because we write principally for the parties, we set out the facts only as needed for
the discussion below. From 2010 to 2014, Andrew served several jail sentences in three
Pennsylvania counties for separate state offenses and parole violations. See Andrew v.
Buskirk, No. 16-3851, 2017 WL 3485872, at *1–2 (E.D. Pa. Aug. 14, 2017.
In September 2010, Andrew was sentenced to a term of 11 ½ to 23 months in Bucks
County jail. In February 2011, Andrew was sentenced on separate charges to a term of 11
½ to 23 months in Northampton County jail with an order that this sentence run
concurrently with the Bucks County sentence. After completing the minimum of his
sentence in Northampton County, Andrew was paroled and sent to Bucks County to
complete the minimum of his sentence there. He was paroled one month later, in September
2011.1
On June 5, 2012, Andrew was arrested and detained in Bucks County jail on new
charges. He pled guilty and was sentenced to time served and a two-year term of probation.
1 Andrew was also sentenced to an undisclosed term of imprisonment in Montgomery County jail around the same time that he was sentenced in Bucks and Northampton Counties. His Montgomery County sentence also ran concurrent to the other two sentences, and would later become the grounds for his recommitment on a parole violation. However, Andrew’s time served in Montgomery County has no bearing on the claims before us, so we will not belabor the details. 2 Although Andrew was not sentenced to any additional period of incarceration, he still had
pending parole violation hearings in Bucks and Northampton Counties, and therefore
remained detained in Bucks County jail even after being sentenced to probation.2 Andrew
was ultimately released in March 2013 after serving separate parole violation sentences in
each county.3
Nine months later, Andrew again violated parole in Bucks and Northampton
Counties. At his Bucks County parole violation hearing, the judge ordered that sentencing
be deferred for ninety days.4 One week later, at his Northampton County parole violation
hearing, the judge revoked his parole and sentenced him to the remainder of the maximum
term of his Northampton sentence. On the sentencing sheet, the judge wrote “Violator.
Serve balance. Eligible for immediate work release. Remanded to NCP. Concurrent to all
other sentences –incl– Bucks Cty.” App. 32. During this period of incarceration, Andrew
unsuccessfully filed multiple grievances arguing that he was entitled to credit on his
2 Because Andrew was sentenced to a maximum term of less than two years in each of Bucks and Northampton Counties, his parole violation sentencings fell under the jurisdiction of the respective county courts rather than the Pennsylvania Board of Probation and Parole. See 61 Pa. Cons. Stat. § 6132(a)(2)(ii); 42 Pa. Cons. Stat. § 9762(b)(3). 3 In Bucks County, Andrew was sentenced to the remainder of 23 months, the maximum term of his sentence. He received credit for time served from June 5, 2012 to January 23, 2013. In Montgomery County, Andrew was sentenced to serve the remainder of his sentence, with credit for time served from June 5, 2012 to January 18, 2013. In Northampton County, Andrew was given work release and re-parole after thirty days. He received credit for time served from February 12, 2013 to March 14, 2013. 4 The record before us is silent as to any subsequent sentences in Bucks County, but a subsequent sentence would not affect our analysis here as Andrew remained incarcerated in Northampton County jail until his re-entry to society. 3 Northampton sentence for the time he spent detained in Bucks County in 2012. After
exhausting the grievance process, he retained an attorney who was able to negotiate a new
order from the Northampton County sentencing judge awarding Andrew credit for time
served in Bucks County. Andrew was immediately released from Northampton County jail
upon its receipt of the new order.
After his release, Andrew filed suit against three Northampton County Department
of Corrections officials, asserting that his Northampton sentence was carried out beyond
his 23-month maximum period of incarceration due to the officials’ failure to credit his
sentence with the time he spent in Bucks County in 2012. He alleged two claims: a violation
of his Eighth Amendment right to be free of cruel and unusual punishment and a violation
of his right not to be falsely imprisoned. The parties exchanged discovery and subsequently
filed cross-motions for summary judgment. The District Court granted summary judgment
in favor of the Northampton County officials. Andrew appealed.
II
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the District Court’s grant of summary judgment to Defendants under 28
U.S.C. § 1291.5
III
5 To the extent that Andrew may appeal the District Court’s denial of his Motion for Partial Summary Judgment, we do not have jurisdiction. The denial is neither a final decision nor an exception under the collateral order doctrine. See In re Montgomery County, 215 F.3d 367, 373-74 (3d. Cir. 2000), cert. denied, 531 U.S. 1126 (2001). 4 We review de novo a court’s decision to grant summary judgment. Burns v. Pa.
Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We view the facts and draw all reasonable
inferences “in the light most favorable to the nonmoving party,” id. (quoting Armbruster
v. Unisys Corp, 32 F.3d 769, 777 (3d Cir. 1994)), and affirm when there is no genuine issue
of material fact, Fed. R. Civ. P. 56(a). Here, the material facts are uncontested, and there
remains only an issue of law: whether the Northampton County sentencing judge was
required to credit Andrew’s June 2012 detention in Bucks County toward his Northampton
County sentence, or whether it was a matter left to the judge’s discretion. Andrew argues
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 17-3011 _____________
FRANK E. ANDREW, Appellant
v.
TODD BUSKIRK; FRANK LONGENBACH; ROBIN STANLEY ______________
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 5-16-cv-03851) District Judge: Honorable Lawrence F. Stengel ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10, 2018 ______________
Before: GREENAWAY, JR., RESTREPO and BIBAS, Circuit Judges.
(Opinion Filed: November 19, 2018) ______________
OPINION* ______________
RESTREPO, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Appellant Frank Andrew claims that several Pennsylvania prison officials violated
his constitutional rights by detaining him past the expiration of his maximum term of
imprisonment. The District Court found that no such over-detention occurred and that the
officials were entitled to summary judgment on the claims. We will affirm.
I
Because we write principally for the parties, we set out the facts only as needed for
the discussion below. From 2010 to 2014, Andrew served several jail sentences in three
Pennsylvania counties for separate state offenses and parole violations. See Andrew v.
Buskirk, No. 16-3851, 2017 WL 3485872, at *1–2 (E.D. Pa. Aug. 14, 2017.
In September 2010, Andrew was sentenced to a term of 11 ½ to 23 months in Bucks
County jail. In February 2011, Andrew was sentenced on separate charges to a term of 11
½ to 23 months in Northampton County jail with an order that this sentence run
concurrently with the Bucks County sentence. After completing the minimum of his
sentence in Northampton County, Andrew was paroled and sent to Bucks County to
complete the minimum of his sentence there. He was paroled one month later, in September
2011.1
On June 5, 2012, Andrew was arrested and detained in Bucks County jail on new
charges. He pled guilty and was sentenced to time served and a two-year term of probation.
1 Andrew was also sentenced to an undisclosed term of imprisonment in Montgomery County jail around the same time that he was sentenced in Bucks and Northampton Counties. His Montgomery County sentence also ran concurrent to the other two sentences, and would later become the grounds for his recommitment on a parole violation. However, Andrew’s time served in Montgomery County has no bearing on the claims before us, so we will not belabor the details. 2 Although Andrew was not sentenced to any additional period of incarceration, he still had
pending parole violation hearings in Bucks and Northampton Counties, and therefore
remained detained in Bucks County jail even after being sentenced to probation.2 Andrew
was ultimately released in March 2013 after serving separate parole violation sentences in
each county.3
Nine months later, Andrew again violated parole in Bucks and Northampton
Counties. At his Bucks County parole violation hearing, the judge ordered that sentencing
be deferred for ninety days.4 One week later, at his Northampton County parole violation
hearing, the judge revoked his parole and sentenced him to the remainder of the maximum
term of his Northampton sentence. On the sentencing sheet, the judge wrote “Violator.
Serve balance. Eligible for immediate work release. Remanded to NCP. Concurrent to all
other sentences –incl– Bucks Cty.” App. 32. During this period of incarceration, Andrew
unsuccessfully filed multiple grievances arguing that he was entitled to credit on his
2 Because Andrew was sentenced to a maximum term of less than two years in each of Bucks and Northampton Counties, his parole violation sentencings fell under the jurisdiction of the respective county courts rather than the Pennsylvania Board of Probation and Parole. See 61 Pa. Cons. Stat. § 6132(a)(2)(ii); 42 Pa. Cons. Stat. § 9762(b)(3). 3 In Bucks County, Andrew was sentenced to the remainder of 23 months, the maximum term of his sentence. He received credit for time served from June 5, 2012 to January 23, 2013. In Montgomery County, Andrew was sentenced to serve the remainder of his sentence, with credit for time served from June 5, 2012 to January 18, 2013. In Northampton County, Andrew was given work release and re-parole after thirty days. He received credit for time served from February 12, 2013 to March 14, 2013. 4 The record before us is silent as to any subsequent sentences in Bucks County, but a subsequent sentence would not affect our analysis here as Andrew remained incarcerated in Northampton County jail until his re-entry to society. 3 Northampton sentence for the time he spent detained in Bucks County in 2012. After
exhausting the grievance process, he retained an attorney who was able to negotiate a new
order from the Northampton County sentencing judge awarding Andrew credit for time
served in Bucks County. Andrew was immediately released from Northampton County jail
upon its receipt of the new order.
After his release, Andrew filed suit against three Northampton County Department
of Corrections officials, asserting that his Northampton sentence was carried out beyond
his 23-month maximum period of incarceration due to the officials’ failure to credit his
sentence with the time he spent in Bucks County in 2012. He alleged two claims: a violation
of his Eighth Amendment right to be free of cruel and unusual punishment and a violation
of his right not to be falsely imprisoned. The parties exchanged discovery and subsequently
filed cross-motions for summary judgment. The District Court granted summary judgment
in favor of the Northampton County officials. Andrew appealed.
II
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the District Court’s grant of summary judgment to Defendants under 28
U.S.C. § 1291.5
III
5 To the extent that Andrew may appeal the District Court’s denial of his Motion for Partial Summary Judgment, we do not have jurisdiction. The denial is neither a final decision nor an exception under the collateral order doctrine. See In re Montgomery County, 215 F.3d 367, 373-74 (3d. Cir. 2000), cert. denied, 531 U.S. 1126 (2001). 4 We review de novo a court’s decision to grant summary judgment. Burns v. Pa.
Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We view the facts and draw all reasonable
inferences “in the light most favorable to the nonmoving party,” id. (quoting Armbruster
v. Unisys Corp, 32 F.3d 769, 777 (3d Cir. 1994)), and affirm when there is no genuine issue
of material fact, Fed. R. Civ. P. 56(a). Here, the material facts are uncontested, and there
remains only an issue of law: whether the Northampton County sentencing judge was
required to credit Andrew’s June 2012 detention in Bucks County toward his Northampton
County sentence, or whether it was a matter left to the judge’s discretion. Andrew argues
that because his original Northampton sentence was ordered to run concurrently with his
original Bucks sentence, his subsequent detention in Bucks County for a new crime and a
parole violation must be credited towards his original Northampton sentence as well. We
disagree.
Andrew’s sentences are governed by Pennsylvania law, which requires the award
of credit for time served under four enumerated scenarios. See 42 Pa. Cons. Stat. § 9760.
Andrew’s theory of perpetually concurrent sentences does not fall into any of these
scenarios. Pennsylvania common law is also silent as to his theory. We have not identified,
and Andrew has not shared, any case law that requires separate sentencing courts to
coordinate their awarding of credit for sentences that were previously being served
concurrently. Rather, we have found the opposite.
A sentence on violation of parole “is limited only by the maximum sentence” that
could have been imposed under the original sentence. Commonwealth v. Presley, 193 A.3d
436, 445 (Pa. Super. Ct. 2018) (citing Commonwealth v. Pasture, 630 Pa. 440, 452 (Pa.
5 2014)); see also Pa. R. Crim. P. 708. Thus, Andrew’s original sentencing order controlled
subsequent sentencings only to the extent that it limited his maximum term to 23 months.
The Northampton County sentencing court in Andrew’s 2014 parole violation hearing was
free to decline to award credit for his 2012 detention in Bucks County. It was similarly free
to award that credit at a later date, which it did.
In the alternative, Andrew argues that the 2014 instruction for his parole revocation
to run “[c]oncurrent to all other sentences –incl– Bucks Cty,” App. 32, should be read as
granting credit for his earlier detention in Bucks County. This reading is not supported by
any case law or the plain language of the instruction. A sentencing instruction of
“concurrent” is not an instruction for credit. Sentencing judges intending to award credit
ordinarily will state so, as we saw in multiple sentencing orders in this case. See supra note
3.
Because Andrew’s constitutional rights were not violated, we have no need to
consider his deliberate indifference claim or the Defendants’ qualified immunity defense.
IV
For the foregoing reasons, we will affirm the judgment of the District Court.