IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD FOULK, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-16-43

:

PENNSYLVANIA BOARD OF : (Judge Brann)

PROBATION AND PAROLE, ET AL., :

:

Defendants :

MEMORANDUM

January , 2016

Background

Richard Foulk, an inmate presently confined at the Rockview State

Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview) initiated this

pro se civil rights action. Named as sole Defendant are the Pennsylvania Board of

Probation and Parole (Parole Board) and its Secretary. Accompanying the

Complaint is a request for leave to proceed in forma pauperis. See Doc. 2. The

Complaint is currently before the Court for preliminary screening pursuant to 28

U.S.C. § 1915(e)(2)(b). For the reasons that follow, Plaintiff’s action will be

dismissed without prejudice. 

Named as Defendants are the Pennsylvania Board of Probation and Parole

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(Parole Board) and its Secretary. Plaintiff generally alleges that the Defendants

violated his due process rights by issuing two green sheets in the same month and 

“by issuing an improper calculation of time owed and improperly modifying this

plaintiff’s state sentence.” Doc. 1, ¶ IV(2). As relief, Foulk requests that the

unlawful modification of his sentence be corrected. See id. at ¶ V.

Discussion

When considering a complaint accompanied by a motion to proceed in

forma pauperis, a district court may rule that process should not issue if the

complaint is malicious, presents an indisputably meritless legal theory, or is

predicated on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S.

319, 327-28 (1989), Douris v. Middleton Township, 293 Fed. Appx. 130, 132 (3d

Cir. 2008). Indisputably meritless legal theories are those "in which either it is

readily apparent that the plaintiff's complaint lacks an arguable basis in law or that

the defendants are clearly entitled to immunity from suit ... ." Roman v. Jeffes,

904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277,

1278 (11th Cir. 1990)).

Parole Board

The United States Supreme Court has ruled that a § 1983 action brought

against a "State and its Board of Corrections is barred by the Eleventh

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Amendment unless [the State] has consented to the filing of such a suit." Alabama

v. Pugh, 438 U.S. 781, 782 (1978). It has been similarly concluded by the United

States Court of Appeals for the Third Circuit that Pennsylvania’s Board of

Probation and Parole could not be sued because “it is not a 'person' within the

meaning of Section 1983." Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977).

In Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), the

Supreme Court reiterated its position that state agencies such as the state police are

not "persons" subject to liability in § 1983 actions brought in federal court. The

Court noted that a § 1983 suit against a state official's office was "no different

from a suit against the State itself." Id. at 71. “Will establishes that the State and

arms of the State, which have traditionally enjoyed Eleventh Amendment

immunity, are not subject to suit under § 1983 in either federal or state court."

Howlett v. Rose, 496 U.S. 356, 365 (1990). Accordingly, the Parole Board is not

a properly named defendant in this matter. 

Habeas Corpus

More importantly, it is well-settled that inmates may not use civil rights

actions to challenge the fact or duration of their confinement or to seek earlier or

speedier release. Preiser v. Rodriguez, 411 U.S. 475 (1975). The United States

Court of Appeals for the Third Circuit has similarly recognized that civil rights

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claims seeking release from confinement sounded in habeas corpus. See

Georgevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir. 1985).

In Edwards v. Balisok, 520 U.S. 641, 646 (1997), the United States

Supreme Court concluded that a civil rights claim for declaratory relief “based on

allegations ... that necessarily imply the invalidity of the punishment imposed, is

not cognizable” in a civil rights action. Id. at 646. Pursuant to the standards

announced in Georgevich and Edwards, Plaintiff’s present claims of improper

calculation of his state parole violator sentence and his related request for

correction of his Pennsylvania state sentence are not properly raised in a civil

rights complaint.1

 Accordingly, Plaintiff’s claims will be dismissed without

prejudice to any right Foulk may have to pursue said allegations via a federal

habeas corpus petition. 

Conclusion

In sum, the Parole Board, as an agency of the Commonwealth of

Pennsylvania, is not a properly named defendant. More importantly, Plaintiff’s

allegations and requests for relief sound in habeas corpus. Since Foulk’s civil

rights complaint is "based on an indisputably meritless legal theory," it will be

1 It is noted that this is not a case where a general practice or policy of the

Parole Board is being challenged on constitutional grounds. Rather, Foulk is simply

alleging that improper action was taken in his individual case.

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dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774. An

appropriate Order will enter.

BY THE COURT:

 s/ Mattthew W. Brann 

Matthew W. Brann

United States District Judge

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