1

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

LEROY SHAW, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-1217

:

ARTHUR R. THOMAS, ET AL., :

: (Judge McClure)

Defendants :

MEMORANDUM AND ORDER

August 22, 2005

Background

Leroy Shaw (“Plaintiff”), an inmate presently confined at the Cambria

County Prison, Ebensburg, Pennsylvania, filed this pro se civil rights action. 

Service of the complaint was previously ordered. Named as Defendants are the

following officials of the Pennsylvania Board of Probation and Parole (“Parole

Board”): ex-Chairman William F. Ward; Secretary Kathleen Zwierzyna; ex-Chief

Counsel Robert Campolongo, Esq.; Assistant Counsels Tara L. Patterson, Esq.

and Arthur Thomas, Esq.

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 1 of 15
2

While on parole, Shaw was issued a traffic citation on August 1, 2000 for

driving with a suspended or revoked license. On November 7, 2000, Plaintiff

received two (2) additional traffic citations charging him with failure to stop at a

stop sign and operating a motor vehicle without a license. Approximately one

month later, on December 8, 2000, Shaw was arrested on charges on drug related

charges and driving with a suspended or revoked license. The Parole Board

issued a parole violator warrant that same day, which was lodged as a detainer. 

Plaintiff posted bail with respect to his criminal charges on January 16, 2001,

however, he remained incarcerated due to the pending Parole Board detainer. 

Thereafter, on January 19, 2001, a district justice issued a detainer to prevent

Plaintiff from being released before paying fines associated with his August 1,

2000 and November 7, 2000 traffic citations. An October 29, 2001Parole Board

decision ordered Shaw to be recommitted for a five (5) month term as a technical

parole violator due to his admission to using drugs while on parole.

On November 1, 2001, Plaintiff entered a guilty plea to charges of driving

with a suspended or revoked license and disorderly charges stemming from his 

December 8, 2000 arrest. He was sentenced to a ninety (90) day term of

probation. One week later, Shaw was sentenced to time served with respect to the

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 2 of 15
3

August 1, 2000 and November 7, 2000 traffic citations.

By decision dated January 9, 2002, the Parole Board ordered Shaw to serve

his unexpired term of eleven months and six days due to his failure to follow state

law (presumably his latest conviction). The decision gave the Plaintiff credit for

time served from December 8, 2000 to November 1, 2001. According to the

complaint, on February 21, 2002, Defendants Ward and Zwierzyna modified that

decision and gave Shaw credit for time served from December 8, 2000 to January

19, 2001 (the date the district justice issued a detainer). In addition, the amount of

time to be served was extended to a twelve (12) month term. Plaintiff

administratively appealed the decision on the grounds that the district justice could

not legally detain him for more then nine (9) months on the traffic citation charges. 

According to the complaint, his appeal was denied by Defendant Thomas on

March 27, 2002.

Thereafter, in response to a request from Shaw, the district justice sent

Plaintiff a letter on April 2, 2002 advising the prisoner that he was amending his

sentencing order to provide that Plaintiff’s sentence on the traffic citations ran

from January 19, 2001 to February 3, 2001. Shaw again sought administrative

review from the Parole Board based on the district justice’s revised sentencing

order. However, by decision dated May 6, 2002, Thomas purportedly acting on

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 3 of 15
4

behalf of defendants Ward and Zwierzyna refused to take any corrective action on

the basis that Plaintiff’s request constituted an unauthorized subsequent

administrative appeal.

Pennsylvania’s Commonwealth Court subsequently overruled the Parole

Board’s decision on December 13, 2002. See Shaw v. Parole Board, 812 A.2d

769 (Pa. Cmwlth. 2002). The Commonwealth Court concluded that the Parole

Board erred by not entertaining Shaw’s request for relief since it was based on

changed circumstances. The Court further directed the Parole Board to reconsider

“Shaw’s backtime credit based on the district justice’s amended sentence” noting

that Plaintiff was entitled to backtime credit for the period of February 3, 2001 to

November 1, 2001. Id. at 772.

In his present action, Plaintiff seeks compensatory and punitive damages

against Defendants Thomas, Ward and Zwierzyna on the grounds that they

subjected him to an excessive period of confinement by their failure to properly

calculate his sentence credit time and by not entertaining his administrative appeal

following the district justice’s issuance of an amended sentencing order. His

complaint further asserts that Defendants Campolongo and Patterson likewise

subjected him to excessive confinement based on their unsuccessful opposition to

his Commonwealth Court action . He also alleges that the Defendants acting

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 4 of 15
5

“merely out of spite” wrongfully incarcerated him from December 13, 2002 (the

date of the Commonwealth Court’s favorable decision) to December 31, 2002

(presumably the date of his release). Record document no. 1, ¶ V.

Presently pending before this Court is Defendants’ motion (Record

document no. 9) seeking dismissal of the complaint. The motion has been briefed

and is ripe for consideration. For the reasons outlined below, the motion will be

granted in part.

Discussion

A court, in rendering a decision on a motion to dismiss, must accept the

veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals for the Third Circuit added

that when considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." "[A]

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is

whether, under any reasonable reading of the pleadings, plaintiff may be entitled to

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 5 of 15
6

relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation

omitted). Additionally, a court must "accept as true the factual allegations in the

complaint and all reasonable inferences that can be drawn from them." Markowitz

v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters.,

Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). 

Finally, it is additionally well-settled that pro se complaints should be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). This Court will now

discuss Defendants’ motion in light of the standards set forth above and Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Defendants claim entitlement to an entry of dismissal on the basis that they

are entitled to absolute immunity. In the alternative, they raise the defense of

qualified immunity.

Absolute Immunity

In rare cases, a public official is entitled to absolute immunity from § 1983

damages for official actions. See Butz v. Economou, 438 U.S. 478 (1978). The

United States Court of Appeals for the Third Circuit in Wilson v. Rackmill, 878

F.2d 772, 775-76 (3d Cir. 1989) noted that the existence of absolute immunity

must clearly appear on the face of the complaint when examining a Rule 12(b)(6)

request for absolute immunity. Furthermore, the relevant inquiry is the nature and

the function of the challenged act, not the act itself. Kulwicki v. Dawson, 969 F.2d

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 6 of 15
7

1454, 1465 (3d Cir. 1992).

Wilson established that probation and parole officers are entitled to absolute

immunity only when “they are engaged in adjudication duties.” Wilson 878 F.2d at

775. If a parole or probation officer acts in an executive, administrative or

investigative capacity he or she is only entitled to a qualified good faith immunity. 

In Breslin v. Brainard, 2002 WL 31513425 *7 (E.D. Pa. Nov. 1, 2002), the

district court summarized that parole officials are only entitled to absolute immunity

when engaged in: (1) hearing evidence; (2) making recommendations as to whether

to parole a prisoner; or (3) making decisions whether to grant, revoke or deny

parole. It has been similarly recognized that “making decisions to grant, revoke or

deny parole are adjudicatory duties for which the actor is entitled to absolute

immunity.” Simon v. Ward, 2001 WL 41127 * 2 (E.D. Pa. Jan. 16, 2001). 

However, in Simon, the district court additionally concluded that the failure of the

Parole Board to “ensure plaintiff’s credit for time served” was “executive and

administrative in nature, not judicial.” Id. at *3. It added that absolute immunity

does not attach to a Parole Board member’s performance of an act required by

statute such as “a failure to ensure that plaintiff received credit for time served

while on parole.” Id.

Plaintiff’s claim of excessive confinement is threefold with respect to

Defendants Ward, Zwieryna and Thomas. First, Shaw asserts that they

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 7 of 15
8

miscalculated the amount of credit for time served that he was entitled to. Second,

Plaintiff alleges that those Defendants erred by denying his reconsideration petition

as an unauthorized subsequent administrative appeal. Third, he contends that they

violated his rights by delaying implementation of the Commonwealth Court

decision.

It is apparent that under the standards announced in Wilson and Breslin, the

decision to deny his reconsideration petition as an unauthorized subsequent

administrative appeal was an adjudicatory duty to which absolute immunity

attaches. However, an application of Simon and Breslin to the two remaining

challenged actions of Defendants Ward, Thomas and Zwierzyna warrants a

different conclusion. Implementation of a directive from the Commonwealth Court

is a non-discretionary duty which does not fall within any of the recognized

adjudicatory duties protected by absolute immunity. Likewise, the computation of

the amount of Plaintiff’s prior sentence credit as noted in Simon is not an action

protected by absolute immunity. Since those challenged acts did not involve the

hearing of evidence or a decision as to whether to grant, revoke or deny parole or

even a decision as to whether to recommend a prisoner for parole, this Court

agrees that they are non- adjudicatory duties. Consequently, those claims against

Ward, Thomas and Zwierzyna will be allowed to proceed.

Defendants Campolongo and Patterson also claim entitlement to absolute

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 8 of 15
9

immunity on the grounds that they were performing “quasi-prosecutorial duties.” 

Record document no. 10, p. 7. They contend that since the claims against them

are premised on the presentation of opposing arguments in opposition to Plaintiff’s

appeal before the Commonwealth Court, they are entitled to absolute immunity

under Butz.

Plaintiff asserts two claims against Campolongo and Patterson. His initial

claim is solely premised on the above Defendants’ opposition to his

Commonwealth Court appeal. However, Shaw also contends that Campolongo

and Patterson delayed implementation of the Commonwealth Court’s decision. 

 A state prosecuting attorney is absolutely immune from liability for damages

under § 1983 for acts such as the initiation of the prosecution and presentation of

the state's case which are intimately associated with the judicial phase of the

criminal process. Imbler v. Pachtman, 424 U.S. 409, 420 (1976); Urrutia v.

Harrisburg County Police Dep't, 91 F.3d 451, 462 (3d Cir. 1996). Only qualified

immunity is available to prosecutors with regard to allegations based on their

administrative and/or investigative duties. See Hawk v. Brosha, 590 F. Supp. 337,

344 (E.D. Pa. 1984).

 The United States Supreme Court has indicated that an agency attorney is

entitled to absolute immunity for the presentation of evidence during an

adjudication. Butz v. Economou, 438 U.S. 478, (1978). The Court in Butz added

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 9 of 15
10

that an agency official who makes a decision to move forward with an agency

proceeding is likewise entitled to absolute immunity. See id. The Third Circuit in

Ernst v. Child and Youth Services, 108 F. 3d 486, 494-95 (3d Cir. 1997) held that

a child welfare worker was entitled to absolute immunity for quasi-prosecutorial

functions performed in an administrative agency adjudication. The Court opined

that when a defendant performs functions on behalf of the state which are closely

analogous to those performed by prosecutors in criminal proceedings,

considerations of public policy support an entitlement of absolute immunity.

Campolongo and Patterson were clearly undertaking duties on behalf of the

state with respect to their actions before the Commonwealth Court. 

Representation of the Parole Board in a proceeding before the Commonwealth

Court is analogous to the duties of prosecutors in state criminal proceedings. This

Court agrees that the actions taken by Attorneys Campolongo and Patterson in

opposing Shaw’s Commonwealth Court’s case were quasi-prosecutorial as

contemplated in Butz and Ernst and finds that those Defendants are entitled to

absolute immunity with respect to said claim.

However, with respect to the claim that Attorneys Campolongo and

Patterson intentionally delayed the Petitioner’s release in retaliation for his

successful state court appeal, such alleged conduct was clearly not within the

quasi-prosecutorial duties of those Defendants and therefore is not protected under

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 10 of 15
11

the doctrine of absolute immunity.

Qualified Immunity

Qualified immunity is an affirmative defense which must be pleaded by the

defendant official. Id.; Verney v. Pennsylvania Turnpike Comm'n, 881 F. Supp.

145, 149 (M.D. Pa. 1995). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the

United States Supreme Court held "that government officials performing

discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." Id. at 818; Sherwood v.

Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997); Showers v. Spangler, 957 F. Supp.

584, 589 (M.D. Pa. 1997). It has also been held that "qualified immunity is

coextensive for suits brought against state officials under 42 U.S.C. § 1983 (1982),

and for suits brought directly under the Constitution against federal officials." 

People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139,

144 n.9 (3d Cir. 1984) (citing Butz v. Economou, 438 U.S. 478, 504 (1978)). 

The United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001),

established a two part test for analyzing qualified immunity claims. See also Curley

v. Klem, 298 F.3d 271 (3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir.

2002). The initial inquiry in a qualified immunity examination is whether “the facts

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 11 of 15
1 “Retaliation for the exercise of a constitutional right is itself a violation of

rights secured by the Constitution.” White v. Napoleon, 897 F.2d 103, 111-12 (3d

Cir. 1990); Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000).

12

taken in the light most favorable to the plaintiff show a constitutional violation.” 

Bennett, 274 F.3d at 136. The second prong requires a determination as to

whether the constitutional right at issue was clearly established. If so, then a court

must inquire as to “whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 201. A

determination that the conduct violated a clearly established constitutional right

precludes the granting of qualified immunity. 

With respect to Plaintiff’s claim that his release was delayed as retribution

for his successful Commonwealth Court appeal, the standard for retaliatory

conduct is well established.1 Clearly, the Defendants were well aware that a

retaliatory delay of release to a state inmate because he exercised his constitutional

right of access to the courts would be unconstitutional. Thus, a grant of qualified

immunity with respect to this claim is not appropriate. 

In Moore v. Tartler, 986 F. 2d 682, 686 (3d Cir. 1993), the Court of

Appeals for the Third Circuit recognized that “[s]ubjecting a prisoner to detention

beyond the termination of his sentence” could constitute cruel and unusual

punishment under the Eighth Amendment. The Court added that in order to

succeed on such a claim a plaintiff must demonstrate that: (1) a prison official was

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 12 of 15
2 Of course, to succeed on such a claim Shaw will have the burden of

establishing willful misconduct or deliberate indifference by those Defendants.

13

aware of the risk that unwarranted punishment was being, or would be inflicted; (2)

the prison official either failed to act, or took only ineffectual action under the

circumstances indicating that his response was deliberate indifference; and (3) a

causal connection between the prison official’s response and the unjustified

detention. Thus, the Court clearly established that recovery on such a claim is only

possible if it is shown that a defendant acted intentionally or with deliberate

indifference. More recently, it was recognized that deliberate indifference existed

under Moore, “where a prison official refuses to address a question of

incarceration without penological justification brought to his attention by an

inmate.” Scott v. Quigley, 2005 WL 1377839 * 3 (M.D. Pa. June 7, 2005).

In light of the holding in Moore, Plaintiff’s allegation that Defendants

Thomas, Ward and Zwierzyna failed to properly calculate his term of incarceration

could rise to the level of a constitutional violation.2 However, based on the record

to date this Court is unable to make a determination as to whether there was a

violation of a clearly established constitutional right of which a reasonable person

would have known. Therefore, the request for qualified immunity with respect to

this claim will be denied as premature.

In conclusion, based on an application of Bennett and Saucier to the

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 13 of 15
14

Plaintiff’s remaining claims the Defendants’ request for dismissal on the grounds

that they are entitled to qualified immunity will be denied. Consequently,

IT IS HEREBY ORDERED THAT:

1. Defendants’ motion to dismiss (Record document no. 9)

is granted in part.

2. Defendants Ward, Thomas and Zwierzyna are entitled to

absolute immunity with respect to their decision to deny

Plaintiff’s reconsideration petition as an unauthorized

subsequent administrative appeal.

3. Defendants Patterson and Campolongo are entitled to

absolute immunity with respect to their opposition to

Plaintiff’s appeal before Pennsylvania’s Commonwealth

Court.

4. The following claims will proceed: (1) Defendants

subjected Plaintiff to a retaliatory, excessive incarceration

between December 13, 2002 to December 31, 2002; and 

(2) Defendants Ward, Thomas and Zwierzyna subjected

Plaintiff to excessive incarceration through their

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 14 of 15
15

miscalculation of his credit for time served.

5. Defendants shall file answers to the remaining claims of

the complaint on or before September 12, 2005. 

 s/ James F. McClure, Jr. 

JAMES F. McCLURE JR.

United States District Judge

Case 4:04-cv-01217-JFM-JVW Document 18 Filed 08/22/05 Page 15 of 15