NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 23-1058

__________

DANNY L. HAGGARD,

Appellant

v.

HOLLY L. MITKOWSKI, County Employee/Former DOC;

CLIFF O'HARA, Director of Professional Responsibility;

NORM DEMMING, Former Warden of SCI Dallas;

MORGAN C. DAVIS, Eastern District Supervisor State Parole;

K. WREN, Scranton District Supervisor State Parole;

MR. MULLANY, Parole Officer; K. ULRICH, Parole Officer;

JOHN DOE(S), DOC Employee/Official; JANE DOE(S), DOC Employee/Official

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-22-cv-01881)

District Judge: Honorable Christopher C. Conner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed June 20, 2023)

___________

OPINION*

___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Danny Haggard, proceeding pro se, appeals from an order of the United States 

District Court for the Middle District of Pennsylvania dismissing his complaint with 

prejudice. For the reasons that follow, we will affirm the judgment of the District Court. 

Haggard, a former inmate at State Correctional Institution-Retreat, filed a 

complaint pursuant to 42 U.S.C. § 1983 against multiple employees of the Department of 

Corrections (“DOC”) and three parole officers. Haggard sought compensatory and 

punitive damages for alleged violations of the Eighth and Fourteenth Amendments, 

which included a claim against his parole officers based on a state-created danger theory. 

Dkt. No. 1 at 6 & 53-67. His allegations stemmed from an intimate relationship he and 

defendant Holly Mitkowski, a DOC employee, maintained during and after his 

imprisonment at SCI-Retreat.1 Id. at 12-13, 24-27, 40. Haggard sought leave to amend 

the complaint and requested the appointment of counsel. Dkt. Nos. 2 & 6. 

The District Court sua sponte dismissed Haggard’s complaint with prejudice for 

failure to state a claim and denied his motions for leave to amend and for appointment of 

counsel. Dkt. No. 8. Haggard filed this timely appeal. 

We have jurisdiction under 28 U.S.C. § 1291. On appeal, Haggard challenges the 

District Court’s rulings that he failed to state a claim against Mitkowski and his parole 

officers.2 C.A. Dkt. No. 12 at 10-37. We exercise plenary review over the District 

1 Because we write primarily for the parties, we recite only facts pertinent to our decision.

2 Haggard asserts, without argument or explanation, that he is also appealing the District 

Court’s denials of his motions to amend and for appointment of counsel. C.A. Dkt. No. 
3

Court’s sua sponte dismissal of Haggard’s complaint. Dooley v. Wetzel, 957 F.3d 366, 

373 (3d Cir. 2020). 

Haggard first argues that the District Court erred in concluding that he failed to 

state an Eighth Amendment claim based on sexual contact with Mitkowski while he was 

in prison. C.A. Dkt. No. 12 at 10-11. We agree with the District Court that Haggard’s 

claims regarding this contact are barred by the statute of limitations. Haggard filed his 

§ 1983 complaint more than two years after the applicable statute of limitations expired. 

See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (“The statute of limitations 

applicable to § 1983 claims in Pennsylvania is two years.”) (citation omitted). 

Haggard contends that, because sexual contact with Mitkowski continued after he 

was released, the statute of limitations was tolled. However, Haggard does not present a 

case that fits within the continuing violation doctrine. See Sameric Corp. of Del., Inc. v. 

City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998) (providing that, under the 

12 at 1. His challenges to those rulings are arguably forfeited. See In re Wettach, 811 

F.3d 99, 115 (3d Cir. 2016) (deeming forfeited arguments that were not developed in the 

appellants’ opening brief). Even if these challenges are not forfeited, we discern no 

abuse of discretion in the District Court’s denial of the motions. Although Haggard was 

not required to seek leave to amend his complaint, see Fed. R. Civ. P. 15(a)(1), the 

District Court properly concluded that a claim against Mitkowski under the Americans 

with Disabilities Act (“ADA”) would fail, see Garcia v. S.U.N.Y. Health Scis. Ctr. of 

Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (explaining there is no individual liability for 

damages under the ADA). As to Haggard’s constitutional claims against two employees 

of SCI-Dallas related to the treatment of complaints he made via a prison hotline, Dkt. 

No. 1 at 45-48; Dkt. No. 6 at 9-10, he failed to state any facts that those individuals were 

at all involved with his complaints. Nor did the District Court abuse its discretion in 

denying Haggard’s motion for appointment of counsel based on his demonstrated ability 

to present his arguments and the lack of complexity of the issues involved. See Tabron v. 

Grace, 6 F.3d 147, 156 (3d Cir. 1993). 
4

doctrine, only the last act of the defendant’s continuing conduct need be within the 

statutory period) (citation and quotation marks omitted). His claims related to his 

incarceration were based on an allegedly abusive power dynamic between a DOC 

employee and an inmate engaged in a sexual relationship. Dkt. No. 1 at 52-53 

(explaining that Mitkowski exposed him to serious legal and disciplinary consequences 

while in prison, coerced him in violation of prison policies, and violated her duty to 

protect him as a DOC inmate). When he was released, Haggard knew of his alleged 

injury—emotional distress caused by sexual abuse while incarcerated—and could 

“choose to sue or forego that remedy.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 154 

(3d Cir. 1998) (citation omitted). Although Mitkowski and Haggard continued their 

relationship after his release, they did so in their personal capacities. Haggard has not 

asserted that he was entitled to equitable tolling, and there is no suggestion in the record 

that he was prevented from asserting his rights against Mitkowski or that she misled him 

about his ability to do so. See Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 

240 (3d Cir. 1999). 

Haggard also challenges the District Court’s ruling that he failed to state a claim 

against Mitkowski based on her conduct between his release from prison and the end of 

their communication in January 2022. C.A. Dkt. No. 12 at 14-18. To state a valid § 1983

claim, a plaintiff must allege that the defendant acted under color of law in violating his 

constitutional rights. See Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir. 

2000). An individual acts under color of law when she exercises powers on behalf of the 

state or performs a function delegated by the state. See Leshko v. Servis, 423 F.3d 336, 
5

339-40 (3d Cir. 2005). But Haggard’s claims against Mitkowski are premised on her 

actions as a private person, including, inter alia, calls and texts from her personal cell 

phone, a request for a protective order against Haggard in her personal capacity, and a 

restriction of Haggard’s ability to see their shared pet. See Dkt. No. 1 at 15-42, 51, 54-

55. Although Haggard asserts that he perceived Mitkowski as exercising power on behalf 

of the state, C.A. Dkt. No. 12 at 17, we agree with the District Court that Mitkowski was 

not “acting under the color of state law” when those events occurred. Shuman v. Penn 

Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). 

Finally, Haggard argues that the District Court erred in concluding that he failed to 

state a claim against his parole officers of a state-created danger. C.A. Dkt. No. 12 at 18-

36. In making such claim, Haggard was required to plausibly plead that “the state ‘acted 

with a degree of culpability that shocks the conscience.’” Mears v. Connolly, 24 F.4th 

880, 883 (3d Cir. 2022) (citation omitted). According to Haggard, while he and 

Mitkowski were actively concealing their relationship from them, his parole officers met 

with him at the address he provided, fitted him with a GPS tracker after he was 

discovered living outside his allowed area, approved his request to change his address, 

completed drug screens, and required him to attend drug and alcohol rehabilitation and 

other programs. Dkt. No. 1 at 18-20, 29, 33-34, 36. This conduct is routine for parole 

officers and does not demonstrate that the parole officers acted with the degree of 

culpability required to state a claim of state-created danger.

Accordingly, we will affirm the judgment of the District Court.